ARCHIVED — Vol. 147, No. 7 — March 27, 2013
SOR/2013-37 March 8, 2013
Regulations Amending Certain Regulations Made Under the Fisheries Act
P.C. 2013-269 March 7, 2013
His Excellency the Governor General in Council, on the recommendation of the Minister of Fisheries and Oceans, pursuant to section 43 (see footnote a) of the Fisheries Act (see footnote b), makes the annexed Regulations Amending Certain Regulations Made Under the Fisheries Act.
REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER THE FISHERIES ACT
ATLANTIC FISHERY REGULATIONS, 1985
1. Section 56 of the Atlantic Fishery Regulations, 1985 (see footnote 1) is repealed.
2. Section 62 of the Regulations is repealed.
FISHERY (GENERAL) REGULATIONS
3. The portion of subsection 27(1) of the Fishery (General) Regulations (see footnote 2) before paragraph (a) is replaced by the following:
27. (1) It is prohibited for any person to set, operate or leave unattended in the water any fishing gear other than mobile gear or handlines unless the gear is marked in accordance with subsections (2) to (6) with
4. Sections 28 and 29 of the Regulations are replaced by the following:
29. It is prohibited for any person to display any number or name on fishing gear or on a tag, float or buoy attached to fishing gear that is so similar to a number or name required by section 27 as to be capable of being mistaken for that number or name.
PACIFIC FISHERY REGULATIONS, 1993
5. The definition “validation tab” in subsection 2(1) of the Pacific Fishery Regulations, 1993 (see footnote 3) is repealed.
6. Subsection 13(4) of the Regulations is amended by striking out “and” at the end of paragraph (b), by adding “and” at the end of paragraph (a) and by repealing paragraph (c).
7. Section 16 of the Regulations and the heading before it are repealed.
8. Subitem 6(3) of Part I of Schedule II to the Regulations is repealed.
COMING INTO FORCE
9. 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.)
Since the mid-1990s, Fisheries and Oceans Canada has been shifting to a position that industry should pay for the management of the fishery from which it benefits, and that business participants should be responsible for supplying the equipment needed to carry out their business. Accordingly, in some commercial fisheries in Canada, where commercial fishing gear is required to be marked using tags or tabs, participants have the responsibility to supply the required marking devices. The current exceptions to this position include gear tags used in the Atlantic lobster and crab fisheries and validation tabs used in the Pacific fisheries where regulations require that these marking devices be supplied and paid for by the Minister of Fisheries and Oceans.
Gear tags are usually a polyethylene or similar strap, approximately 20 cm long and 1 cm wide, with a tamperproof locking mechanism on one end. The strap is looped around the frame of a piece of fishing gear (e.g. a lobster trap) and the open end inserted into the lock. Tags are embossed with unique sequential numbers that are identified in a fisher’s licence, and for quick visual reference may also be colour-coded for use in specific fishing areas, or use in specific years. Fishers are issued a number of tags equivalent to the gear limits established in their fishery and a tag must be affixed to each individual piece of fishing gear to ensure that these limits are not exceeded. Gear tags are currently being used in approximately 40 fisheries managed by Fisheries and Oceans Canada, with the majority of tag use in the Newfoundland and Labrador, Gulf, Maritimes and Quebec regions. Tags are used extensively in shellfish trap fisheries, but are also used in net and weir fisheries. In most of these fisheries, industry obtains and pays for these tags. The lobster and crab fisheries are the two exceptions where Fisheries and Oceans Canada is required by regulation to provide (and pay for) the tags.
The shift to industry providing tags in other fisheries began in the mid- to late 1990s as Fisheries and Oceans Canada moved from a command and control structure of managing fisheries to a more collaborative approach with fishers and fishing organizations. As fishers took a more active role in the development of integrated fisheries management plans, they also took on more financial responsibility for those aspects of the fishing plan that they felt were necessary management measures. Where industry has taken responsibility for gear tagging programs, it has generally mirrored or integrated the tag supply and distribution systems that Fisheries and Oceans Canada has had in place for the lobster and crab fisheries, with an industry organization replacing Fisheries and Oceans Canada as the primary contact with the tag manufacturer.
However, there are some fisheries where Fisheries and Oceans Canada has continued to provide and pay for gear tags. For crab fisheries, gear tagging was introduced when these fisheries were conducted under a competitive regime and conservation required that fishing efforts and resulting catches be limited through a number of measures, including the control of the number of traps. Crab fisheries have since become quota-based fisheries with each licence holder being assigned an individual catch limit or quota. In association with other measures, such as dockside and at-sea monitoring and logbook reporting, catches are now well controlled and the number of traps is no longer an important factor in controlling catches. However, tagging may continue to be useful for the orderly control of the fishery in which conflicts over gear can arise. The decision as to whether tags would continue to be required for each fishery and how industry would control the ordering and distribution of gear tags has been made in consultation with fish harvesters.
In the case of lobster fisheries, these are still conducted as effort-controlled fisheries and the number of traps each fish harvester is permitted to use is a key conservation measure. Trap tagging is key to controlling the number of traps and industry has decided that gear tags will continue to be required in place of any other innovative control mechanism. Fisheries and Oceans Canada will enforce these gear requirements as a part of licence conditions starting for the 2013 fisheries. Fisheries and Oceans Canada would assist industry in setting up appropriate trap tag supply systems, where required.
Traditionally, all Canadian vessels used in marine fisheries were required to display a registration plate issued by Fisheries and Oceans Canada, similar in size and shape to a vehicle licence plate, displaying their Canadian fishing vessel registration (CFV) number. This registration permitted the vessel to be used in a fishery, as authorized under a species harvesting licence issued to an individual, in Atlantic Canada or in respect of a vessel in Western Canada. While there were some commonalities in fisheries management between the east and west coasts, historically, these fisheries were managed as separate entities, which resulted in different licensing regimes.
Validation tabs originated in the Pacific Region where tabs were issued on an annual basis and attached to the CFV plate, to provide visual confirmation that the vessel had the appropriate fish species licence for the current year. A validation tab was a metal equivalent to the annual validation sticker that is currently issued in many jurisdictions and attached to a vehicle licence plate. Beginning in the 1960s, as more Pacific fisheries became of limited entry, different colour validation tabs were created to correspond to each fish species licence. At a time when radio and other communications systems were generally poor or non-existent, these coloured tabs enabled fishery officers to quickly ascertain whether a vessel had the proper licence, without having to physically board each vessel.
In the 1980s, Fisheries and Oceans Canada stopped issuing the CFV plate and adopted a universal vessel marking scheme requiring vessels to display their registration numbers in a large format on the sides and top of the vessel. This new marking scheme was facilitated by technological advances in communications and electronics that enabled fishery officers, on vessels or using aircraft, to verify in real time, either by radio or by computer, that vessels were properly licensed. Due to the unique nature of the Pacific roe herring fishery, (see footnote 4) validation tabs served a dual purpose and were affixed to both the fishing vessel and the fishing nets. However, there are other viable alternatives that can be used for gear marking in the roe herring fishery that have rendered validation tabs obsolete.
Issues and objectives
There are two issues that will be addressed by the amendments. The first issue of this proposal is that the current practice, whereby the Government pays for and supplies gear tags in some fisheries and not in others, is neither equitable nor consistent with the principle that business participants should supply the equipment to carry out their business.
The second issue of this proposal is that, as a result of advances in computer and information technology, enforcement officers in the Pacific region no longer need to rely on validation tabs to determine whether fishing vessels or roe herring fishing gear are being operated under a valid licence. Therefore, the regulatory requirements for validation tabs are an unnecessary burden on fish harvesters that can be removed.
Government intervention is needed to amend the various regulations that currently require the use of validation tabs and those regulations that require Fisheries and Oceans Canada to supply commercial gear tags and validation tabs.
There are two objectives for this proposal. The first objective is to adopt a fair and consistent approach regarding the supply of marking devices for fishing gear, aligned with the principle that business participants should supply the equipment to carry out their business, by repealing the regulatory requirement to display lobster and crab trap tags supplied by the Government.
The second objective of this proposal is to reduce the burden on fish harvesters in the Pacific region by removing the redundant requirement to display validation tabs.
The amendments eliminate regulatory provisions in the Atlantic Fishery Regulations, 1985, the Pacific Fishery Regulations, 1993 and the Fishery (General) Regulations that require the Minister of Fisheries and Oceans or the Department to supply gear markers required for the purpose of ongoing commercial fisheries in Canada.
1. Removal of crab and lobster trap tagging requirements, sections 56 and 62, from the Atlantic Fishery Regulations, 1985 (AFR 1985)
The amendments repeal sections 56 and 62 of the AFR 1985. These sections required that fish harvesters display tags issued by the Minister on lobster and crab traps.
In any fisheries where the industry chooses to continue the use of gear tags, the tagging of lobster and crab traps will be implemented under a structured tagging program through licence conditions authorized under section 22 of the Fishery (General) Regulations. These licence conditions will be in force by the 2013 opening date of each fishery.
2. Removal of validation tab requirements from the Pacific Fishery Regulations, 1993 (PFR 1993) and the Fishery (General) Regulations (FGR)
The amendments repeal the definition of “validation tab” in the PFR 1993. As well, paragraph 13(4)(c) and section 16 of the PFR 1993 are repealed as they describe how validation tabs must currently be displayed.
Furthermore, as validation tabs no longer exist, subitem 6(3) in Part I of Schedule II of the PFR 1993 is repealed, thus eliminating the $10 fee for validation tab replacement.
Finally, section 28 of the FGR is repealed, and section 29 is amended as follows to eliminate the reference to validation tabs:
“It is prohibited for any person to display any number or name on fishing gear or on a tag, float or buoy attached to fishing gear that is so similar to a number or name required by section 27 as to be capable of being mistaken for that number or name.”
Starting in January and throughout the spring of 2012, Fisheries and Oceans Canada held a number of regular fisheries management consultation meetings during which participants were informed of the decision that gear tags and tabs to identify legitimate commercial fishing gear would no longer be supplied by the Government, and that implementing this decision would require amending current regulations. During these consultation meetings, fish harvesters’ representatives were also informed that crab and lobster licence holders would be responsible for the supply of gear tags in those fisheries where the industry decided that such tags would still be required.
Since early 2012, the Department has been conducting the following consultation activities relevant to the decision to no longer supply gear tags or validation tabs:
- Holding information meetings with the commercial fishing industry;
- Contacting First Nations who would be affected by the tag decision to provide them with relevant information and to seek their views; and
- Holding information meetings with representatives of fish harvesters who are involved in lobster or crab fisheries on the Atlantic coast.
Overall, the commercial fishing industry and First Nations oppose the elimination of the gear tag requirements for the lobster and crab fisheries, especially for that of lobster, where limits imposed on the number of authorized traps remain a key conservation measure. Most lobster fish harvesters consider that the current tagging program is essential in minimizing gear conflict and ensuring everyone abides by the set trap limits. The decision was seen as inconsistent with sustainability and orderly management of these fisheries. In response, Fisheries and Oceans Canada explained that in a separate process to these proposed regulatory amendments, a similar requirement to display gear tags would be implemented through licence conditions in those fisheries where industry decides that such tags would be required, and where trap limits need to be controlled.
A coalition of all major fish harvesters’ organizations on the Atlantic coast as well as the Eastern Fishermen’s Federation wrote to the Minister before the prepublication of the amendments to express their opposing views in relation to the decision on gear tags. These comments were taken into consideration, but the decision to remove the requirement to supply tabs and tags is maintained because the Department’s policy has shifted to a position that industry should pay for the management of the fishery from which it benefits, and that business participants should be responsible for supplying the equipment needed to carry out their business. As well, the proposal is a Government priority under Budget 2012, where a commitment was made to return the Government of Canada to a balanced budget by 2014–15 through comprehensive deficit reduction measures. Furthermore, it should be noted that fish harvesters would incur costs for gear tags under new licence conditions only in those fisheries where the industry itself decides that the continued use of gear tags would be beneficial.
Regarding the repeal of the requirement to display validation tabs in certain West Coast fisheries, stakeholders are supportive as it will eliminate a regulatory requirement that has become unnecessary.
Prepublication in the Canada Gazette, Part I
The Regulations were prepublished in the Canada Gazette, Part I, on November 10, 2012, for a 30-day public comment period. A total of six written submissions were received from Atlantic regional stakeholders, all of whom were in opposition to the decision to discontinue the Government supply of gear tags. Comments received from the commercial fishing industry communicated the following concerns:
- The commercial fishing industry felt that the Department did not carry out proper consultations with stakeholders. The industry indicated that the Department simply provided information and did not take the appropriate steps to consult adequately.
- The commercial fishing industry responded that they were willing to assume costs of tagging system but maintained that the Department should continue to supply tags and implement a tagging system for the fisheries. They also stated that having multiple tag suppliers in an area would ultimately undermine the conservation of the resource.
- The commercial fishing industry responded that not enough time has been allocated to adopt an appropriate tag system for implementation for the next fishing season. The commercial fishing industry would like the Department to wait one more year before implementing this new policy.
- The commercial fishing industry is concerned that the cost benefit analysis underestimates the order/supply process for administering tags and disputes that costs will be reduced.
The Department wishes to address these concerns with the following responses:
- The Department recognizes stakeholders’ concerns regarding consultation activities with respect to the policy decision to no longer supply gear tags and validation tabs. However, the Department has included the commercial fishing industry in the program implementation discussions for this initiative. The Department has especially engaged the commercial fishing industry since the prepublication of the proposal in November 2012, and has continued to hold consultation meetings to ensure a smooth transition to industry-funded tagging systems. These meetings were held with industry representatives to discuss which fisheries would still want to use gear tags for their crab and lobster fishing areas. It was concluded that for 2013, approximately 70 lobster and crab fishing areas on the Atlantic Coast would continue to require that gear tags be affixed to traps. Fisheries and Oceans Canada will continue to provide tags only for those fisheries opening before April 1, 2013. The Department will also ensure that the relevant license conditions are in force prior to the opening date of 2013 fishing seasons.
- Fisheries and Oceans Canada ensured awareness of the Department’s intent to move forward by sending out letters in fall 2012 to each of the lobster licence holders and crab licence holders to provide them with more details surrounding the Government proposal to no longer supply gear tags, and to inform them of the Department’s future plans regarding tags. In addition to the letters that were sent to Pacific fish harvesters, a public notice was also posted in fall 2012 to reach all 4 400 affected vessel owners to inform them that the Minister will no longer be requiring validation tabs.
- The policy direction of the Department is for the commercial fishing industry or a third party to supply the tags that are to be purchased by the industry. The Department is working closely with the commercial fishing industry to help with the transition to a new system. Based on the Department’s past experience in providing tags, the Department has developed processes and procedures to assist and guide potential industry and third party tag suppliers, and to ensure the integrity and enforceability of their tagging systems.
- Fisheries and Oceans Canada is working with the commercial fishing industry to implement the change in policy for the 2013 fishing seasons. The Department will continue to work closely with the industry to ensure proper implementation of the new tagging system prior to and during the next fishing seasons, and is committed to assessing and reviewing the operation of the program in 2013, to ensure that any changes that need to be made to improve that program are considered for future seasons. Since the proposal is a Government priority under Budget 2012, and a commitment was made by the Government of Canada to carry out this proposal by April 1, 2013, the Department is not in a position to delay implementation of the new policy.
- The Department would like to clarify that the scope of the analysis presented in this Regulatory Impact Analysis Statement (RIAS) is limited to these regulatory amendments, which repeal the requirement to display gear tags supplied by the Minister. However, the Department acknowledges that there could be new business costs to the commercial fishing industry for those fisheries where it is determined by industry that a tagging system is still important and therefore required. The increased costs are the result of the Department’s policy shift where the commercial fishing industry assumes the responsibility to supply all the equipment required to carry out their business, and do not result directly from these Regulations. Costs would be reduced in cases where the use of tags is no longer deemed necessary. As well, costs are being reduced in West Coast fisheries since validation tabs will no longer be required.
Fisheries and Oceans Canada acknowledges the comments received and reiterates that any incremental costs to the commercial fishing industry will be the result of the change in the Department’s policy where industry assumes responsibility for all costs associated with the supply of gear tags necessary for conducting business activities. Specifically, where the commercial fishing industry wishes to continue using gear tags these will need to be purchased and supplied by the industry or a third party. The requirements related to the use of gear tags will be included as part of the conditions of a fishing licence, where gear marking tags are continued to be used. Any incremental costs to the commercial fishing industry are a result of this change in policy. The associated regulatory change is required to remove the requirement, for some fisheries, that the Minister of Fisheries and Oceans supply gear marking tags, but does not by itself increase any costs to industry.
Fisheries and Oceans Canada is continuing to work with affected stakeholders to facilitate the transition to industry-funded tagging programs by helping tag suppliers develop tagging plans and providing them with the information to supply tags to harvesters. In addition, changes have been made to the protocol to decrease costs to industry and make it simpler to provide tags to harvesters.
The “One-for-One” Rule applies to these regulatory amendments and the proposal is considered an “out,” or a reduction of administrative burden on industry, under the Rule.
The amendments eliminate regulatory requirements in the AFR 1985, PFR 1993 and FGR for fishers to display gear tags and validation tabs supplied by the Minister of Fisheries and Oceans or the Department. The total decrease in annualized administrative costs for all affected businesses amounts to $152,453 (constant 2012 dollars, present value base year 2012), and the annualized average administrative cost decrease per business amounts to $12 (constant 2012 dollars, present value base year 2012).
The administrative savings were calculated under the following assumptions:
- A one-to-one relationship of licence holders to businesses was assumed since the operational policy states that only one licence per species is allowed in the in-shore fishery;
- The total count of lobster and crab licence holders took into account those licence holders who had both a lobster and a crab licence, so as not to double count those holders in the final total; and
- A total of 13 158 lobster and crab licence holders and Pacific tab users were identified. Of this total, 13 026 were categorized as being small businesses, defined as any business, including its affiliates, that has fewer than 100 employees (see footnote 5) or between $30,000 and $5 million in annual gross revenues. (see footnote 6) This definition is based on commonly used definitions for what is considered a “small” business in Canada. (see footnote 7) The remaining licence holders (132) were categorized as being medium to large businesses, equalling about 1% of the total of lobster and crab licence holders, and Pacific tab users. The lobster and crab licence holders and Pacific tab users included in this count are active licence holders and users.
Two types of administrative burden were counted as a part of the decrease in cost to the fishing industry. The first administrative burden counted was related to learning about the Regulations or the requirements. Since the proposal would repeal provisions related to gear tag and tab requirements, fishing enterprises across Canada would no longer need to familiarize themselves with those provisions. This decrease in burden applies to 100% of stakeholders identified.
The second administrative burden was related to the process to replace gear tags that had been lost. Fishers needing to replace a gear tag must fill out a form, submit the form in person to a Fisheries and Oceans Canada office, and return to their place of business after picking up the replacement tag. As the proposal would repeal the gear tag requirement from the regulations, fishers would no longer follow this process. Given that historically only 10% of fishers replace a gear tag each year, the decrease in administrative burden of this process was calculated based on 10% of the affected stakeholders. This administrative burden only applies to lobster and crab licence holders; Pacific tab users were excluded from the count. It should be noted that there is no administrative burden related to the initial supply of gear tags at the beginning of the fishing season, since tags are automatically delivered to licence holders.
Small business lens
The small business lens does not apply to this proposal, as there are no increased costs to small businesses as a result of these regulatory amendments, which merely repeal the requirement to display gear tags supplied by Fisheries and Oceans Canada. However, Fisheries and Oceans Canada has been mindful of the impacts on small businesses in developing the new licence regime regarding gear tags. Gear tags supplied by industry would only be required in those fisheries where the industry, in consultation with Fisheries and Oceans Canada, decides that the fishery would benefit from the continuation of a gear tagging regime. In this way, the small businesses that would be affected would decide whether gear tagging would continue, and how the new system would be implemented.
Within Canada, the proposal would result in all fisheries being subject to the same policy regarding the supply of gear tags and validation tabs. As well, due to advances in computer and information technology, enforcement officers in the Pacific region no longer need to rely on validation tabs; the amendments have removed an unnecessary burden placed on Pacific tab users.
The proposal is a Government priority under Budget 2012 to return to a balanced budget by 2014–15 through comprehensive deficit reduction measures.
A cost-benefit analysis was conducted to estimate the costs and benefits of adjusting regulatory language in the AFR 1985, PFR 1993, and FGR with regard to repealing the requirements to display gear tags and validation tabs supplied by the Minister of Fisheries and Oceans.
The benefits to Fisheries and Oceans Canada in implementing the regulatory amendments regarding gear tags and validation tabs include a projected savings of approximately $473,000–$566,000 per year (for 10 years), or an average of just over $518,000 per year in savings.
In considering the benefits to fish harvesters in cases where the use of tags is no longer deemed necessary, it is presumed that fishing preparation time will likely decrease because they will no longer need to take the time to place a tag on each of their traps. However, in those fisheries where it is determined by industry that a tagging system is still required, new business costs could be assumed by the commercial fishing industry. The increased costs would be the result of the Department’s policy shift where the commercial fishing industry assumes the responsibility to supply all the equipment required to carry out their business.
Removing the requirement for Pacific vessels to obtain and display validation tabs will also decrease the time involved in preparing vessels for the upcoming fishing season, and reduce the necessity to replace damaged or lost vessel tabs. Fish harvesters’ administrative costs will also decrease as the necessity to be familiar with tagging requirements (since there are none) and the administrative burden associated with replacing lost or damaged tags have been eliminated.
Also, Fisheries and Oceans Canada may be required to attend to various harvester complaints and general fishery discourse since it is widely but incorrectly assumed in the fishery sector that licence fees include the cost of fishing tags when they are provided by the Department.
After review, it is concluded that the overall benefits to both the Department and fish harvesters outweigh the costs of the regulatory amendments.
Implementation, enforcement and service standards
The proposal that the Government would no longer supply gear tags and validation tabs will be implemented starting with the 2013 fisheries through a reduction in the expenditures dedicated to the purchase of commercial marking devices such as tags and tabs and by directing officials to no longer order and/or supply such markers to industry.
The tagging prescriptions for lobster and crab traps (in those fisheries where the industry decides to continue the use of gear tags) will be implemented under a structured tagging program through licence conditions authorized under section 22 of the Fishery (General) Regulations and tags will no longer be purchased by Fisheries and Oceans Canada for subsequent fishing seasons. The Department has been working with industry to ensure that tags are available through the private sector for fisheries opening after April 1, 2013, and will include licence conditions in all 2013 crab and lobster licences that will require that traps be tagged to coincide with the anticipated date of implementation of April 1, 2013. These conditions of licence will be enforced by fishery officers like any other licence condition.
Fisheries and Oceans Canada
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- Footnote a
S.C. 1991, c. 1, s. 12
- Footnote b
R.S., c. F-14
- Footnote 1
- Footnote 2
- Footnote 3
- Footnote 4
Roe herring fishery is unique in that it does not require the use of a registered vessel, so not all licences are associated with a vessel registration number (VRN). Because section 27 of the Fishery (General) Regulations requires marking of gear with the VRN, the specific exception was made to accommodate herring gillnet by allowing marking with the validation tab.
- Footnote 5
Employees can be either full time or part time. For the Statistics Canada Business Register data provided in the Regulatory Cost Calculator, employment size ranges are based on Canada Revenue Agency form PD7 filled out by the employer, where the number of employees over the last pay period (full time or not) is reported. These size ranges will thus tend to reflect the annual maximum number of employees, both full time and part time.
- Footnote 6
The minimum threshold of $30,000 has been set to match data sets that are based on registered businesses. In terms of GST/HST collection, for example, registration is not required for certain businesses in Canada until the value of a business’s annual supplies exceeds $30,000.
- Footnote 7
Statistics Canada defines small businesses as businesses having annual total revenue between $30,000 and $5 million for its small business profiles. The same definition is also used for Industry Canada’s SME Benchmarking Tool. Industry Canada also defines a small business as one that has fewer than 100 employees.