ARCHIVED - Questions and Answers - Consultation on proposed amendments to the Agriculture and Agri-Food Administrative Monetary Penalties Regulations (Food)
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The consultation closed on December 20, 2017.
1. Why is the CFIA consulting on amendments to the Agriculture and Agri-Food Administrative Monetary Penalties Regulations (AAAMPR)?
The proposed amendments would expand the use of Administrative Monetary Penalties (AMPs) to all food commodities. This would provide the CFIA with an additional enforcement response to regulated parties who are not in compliance with certain provisions of the Safe Food for Canadians Act (SFCA) and proposed Safe Food for Canadians Regulations (SFCR).
The CFIA is providing stakeholders, including those who will eventually come under the scope of SFCA and proposed , the opportunity to provide feedback and to learn about the CFIA's approach to compliance and enforcement.
2. What is included in the proposed amendments to the AAAMPR?
The proposed amendments would:
- replace references to the Meat Inspection Act and Regulations, and with the Safe Food for Canadians Act and Regulations
- specify which provisions of the SFCA and proposed SFCR would pertain to AMPs
In addition, the proposed amendments would give authority to persons designated by the CFIA and the Canada Border Services Agency (CBSA) to issue an AMP notice of violation (NoV), either with a warning or a penalty, when a food business does not follow certain requirements of the SFCA and proposed SFCR. While the CBSA would have the authority to issue NoVs, it is not currently done in the commercial stream.
3. What are AMPs?
AMPs are a response option that the CFIA can use to encourage compliance with federal legislation or regulations it enforces. They can be used as a stand-alone enforcement measure or combined with other enforcement measures to compel a regulated party back into compliance, where prosecution is not considered appropriate. AMPs can be issued as a NoV with a warning or with a monetary penalty.
4. Does the CFIA currently administer AMPs?
Yes. Although AMPs would be new for many food businesses, the CFIA has issued AMPs for violations to certain activities under the Plant Protection Act and Regulations, the Health of Animals Act and Regulations since 2000, and the Meat Inspection Act and Regulations since 2015.
5. How will AMPs affect regulated parties in the food sector?
AMPs would apply across all food commodities when the SFCA and proposed SFCR come into force. Proposed AAAMPR amendments do not introduce any new requirements or change the scope of existing requirements for regulated parties, including those who will eventually be subject to new food regulations. Regulated parties would not incur costs unless they do not comply with certain parts of the SFCA or proposed SFCR, and are issued a NoV with financial penalty (some AMPs are issued with a warning only).
Regulated parties are responsible for understanding all the relevant legislative requirements under which they operate and how to comply with them. The CFIA supports regulated parties in understanding and complying with these requirements through plain language resources, technical guidance, and online services. When companies do not follow the laws and regulations, the CFIA takes enforcement actions that are designed to be fair, impartial and transparent.
6. What other options are used to address non-compliance?
Where a regulated party is not complying with regulatory requirements, the CFIA will respond on a case-by-case basis, using a variety of enforcement options, including control measures and enforcement actions. Generally, the CFIA applies control measures to address a risk to human, plant or animal health. Examples of measures that the CFIA may take to control risk to Canadians are:
- Refuse to certify
- Start or stop activities
- Seize and detain shipments and products if there is a health and safety risk
- Order that a product be removed from Canada
- Quarantine, restrict or prohibit movement of a shipment
- Dispose of, or destroy a product
- Issue a mandatory recall
- Order treatment or vaccination
Once a regulated party has been notified that it is not in compliance, and a decision has been made that an enforcement option is required, the CFIA may choose to:
- issue a letter of non-compliance
- apply an AMP, either with or without a penalty
- suspend or cancel a licence, registration or permit for a federally-registered establishment
In some cases, the CFIA may recommend prosecution, depending on the severity of the non-compliance, and previous enforcement actions.
Learn more about the CFIA's approach to compliance and enforcement.
7. How does the CFIA determine which enforcement response is appropriate?
Together, the control measures and enforcement options form a graduated response. The CFIA has the flexibility to select an appropriate response based on potential or actual harm, as well as the intent and compliance history of a regulated party. Learn more about the CFIA compliance continuum.
8. What are the penalties associated with AMPs?
AMPs are issued as a NoV, with warning or with penalty, when there are reasonable grounds to believe that a person has failed to comply with a specific legislative provision. Schedule 1 of the proposed regulatory amendments sets out each provision for which a non-compliance may result in an AMP and classifies them as minor, serious or very serious.
A NoV with penalty ranges from $500 to $1,300 for violations committed not in the course of a business and not committed to obtain a financial benefit. Penalties for violations committed in the course of a business or in order to obtain a financial benefit, commonly referred to as commercial AMPs, range from $1,300 to $10,000. Schedules 2 and 3 of the proposed regulatory amendments provide for adjustments to penalties for serious and very serious commercial violations on a scale that decreases or increases the penalties up to 50% based on considerations for harm, history and intent.
Penalties can also be reduced in whole or in part as a result of a compliance agreement. The Government can accept to enter into a compliance agreement with a regulated party if the persons who have been issued a NoV with penalty of more than $2000 agree to take appropriate steps, with monetary expenditures, to support future compliance with the law.
9. Are AMPs violations made public?
The CFIA is committed to providing consumers with information on enforcement action being taken to protect the safety of Canada's food supply, and the animal and plant resource base upon which safe food depends. As a result, the number of AMPs issued and the total penalty amounts are currently published quarterly under the following categories: animal identification, animal transportation, health of animals, feed restrictions and plant protection. In addition, the CFIA publishes the names of businesses to which the CFIA has issued one or more AMPs for animal transportation violations.
10. Can regulated parties challenge an AMP?
A regulated party that has been issued a NoV with warning may request a review of the facts of the violation before the Minister or the Canada Agricultural Review Tribunal (CART). Regulated parties issued a NoV with penalty have three options:
- Pay the penalty. Payment made within 15 days after the day on which an AMP is served (delivered) results in the penalty amount being reduced by 50%.
- For penalties of at least $2,000, request to enter into a compliance agreement with the Government to nullify, in whole or in part, the penalty and replace it with an agreement to spend up to double the penalty amount on corrective actions to ensure future compliance
- Seek recourse by requesting a review of the facts of the violation before the Minister or the CART
11. What is the difference between a Corrective Action Request (CAR) and an AMP?
The CFIA may choose from various actions to address non-compliance. CARs and AMPs are two of these options.
A CAR identifies the non-compliance and requires a plant to develop, submit to the CFIA and implement a written action plan describing how they plan to address an issue and prevent its recurrence.
The CFIA may also consider issuing an AMP as a NOV with warning or penalty as an enforcement response to non-compliance. The decisions to issue a NOV with warning or penalty depends on the seriousness of the non-compliance, and factors such as the potential or actual harm, the compliance history of the regulated party and intent.
Actions undertaken by the CFIA through the use of CARs and AMPs are independent of one another.
12. How will an AMP be issued to a regulated party?
The CFIA will be applying AMPs in the food inspection sector following established procedures currently used in animal health, plant health and meat hygiene inspection programs.
When encountering non-compliance, an inspector gathers the information required to demonstrate non-compliance. This information is then reviewed by the CFIA supervisor and inspection manager. If the file is found to be complete and clearly defines non-compliance, the matter is referred for triage where the file will be evaluated by specialized CFIA personnel who determine the most appropriate enforcement response, which may result in the issuance of a NOV with warning or penalty.
AMPs are most often served to a regulated party in person by a CFIA official or through registered mail or courier.
13. What is a compliance agreement?
On receiving a NOV with penalty of at least $2,000, a regulated party may request to enter into a compliance agreement with the CFIA. A compliance agreement offers the regulated party the opportunity to address the non-compliance by investing up to $2 for every penalty dollar into a solution that would resolve the non-compliance issue and prevent recurrence. For example, the regulated party could invest into setting up processes, training or purchasing equipment that prevents non-compliance in the future.
The regulated party must submit a detailed proposal to be evaluated by the CFIA. If both parties agree to the proposed approach and implementation date, the compliance agreement is drawn up and signed by both parties, which becomes a legal and binding agreement under the Agriculture and Agri-Food Administrative Monetary Penalties Act.
The CFIA conducts a follow-up inspection to determine if the conditions of the compliance agreement are in place and working by the implementation date. If so, the penalty is reduced by the amount of the investment (outlined in the agreement). If not, the penalty amount is doubled.
It is important to note that the reduction of the penalty amount resulting from a compliance agreement, even if the penalty amount is reduced to zero, does not erase the violation from the regulated party’s compliance history. The violation stays on record, which is used when reviewing the compliance history of a regulated party for a period of five years.
14. When will the proposed AAAMP Regulations come into force?
The proposed AAAMP Regulations are planned to come into force about the same time as the coming into force of the proposed SFCR. As stated in the CFIA Forward Regulatory Plan, final publication of the SFCR in the Canada Gazette, Part II is anticipated for Spring 2018.
15. How can I participate in this consultation?
The public comment period is open for 60 days ending December 20, 2017. Have your say on the proposed amendments.
See how AMPs fit into the CFIA compliance continuum.
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