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Guidelines for requesting and administering Ministerial Exemptions for Potatoes

Import and Interprovincial

(Revised September 30^th, 2010)

Introduction
Evidence of Shortage
- A. Evidence on Case by Case Basis
- B. Evidence of Shortage Based on 60-day Forward Contracts
Availability of Supply
Application
Processing of Applications
- A. Case by Case Basis
  - a) For Interprovincial Ministerial Exemptions
  - b) For Import Ministerial Exemptions
- B. 60-day Forward Contracts
- C. Requirements for all Applications
Payment for Ministerial Exemptions
Amendments to Ministerial Exemptions
Payment for Amendments

Appendix A: Designated Canadian Food Inspection Agency Offices
Appendix B: Request for an Exemption Form CFIA/ACIA 4685 (PDF 256 kb)
Appendix C: Example - Ministerial Exemption
Appendix D: Check-list of Information to include on a 60-day Forward Contract
Appendix E: Contract Attestation for the Purpose of Ministerial Exemptions for Interprovincial or Import Movement of Potatoes

1. Introduction

The Fresh Fruit and Vegetable Regulations under the Canada Agricultural Products Act prescribe packaging, labelling and grade requirements for fresh fruits and vegetables entering into interprovincial or import trade in Canada. Potatoes are one of thirty domestically produced commodities whose trade are regulated, whether the product is marketed fresh to consumers or is intended for further processing. Processors or packers are free to source their supplies from the area or supplier of their choice provided those supplies comply with all the requirements of the Act and the Regulations.

In the case of potatoes, they must meet mandatory quality standards when being marketed in interprovincial and import trade. The quality parameters prescribed by the Regulations include minimum and maximum size limits, standards for uniformity of shape and maturity, as well as establishing tolerances for the presence of defects which affect the marketability of product.

Additionally, potatoes are subject to packaging and labelling rules and are required to be certified as meeting regulatory requirements when marketed in interprovincial and import trade. Pursuant to subsection 5 (2) of the Regulations, potatoes, a product for which a grade is established, may not be marketed in import or interprovincial trade in containers exceeding 50 kg. As such, potatoes moving in bulk containers (wooden bins, sacks, etc.) in excess of 50 kg or without proper markings, whether graded to meet the minimum quality standards or not, do not comply with the regulatory requirements set out in the Regulations for packaging and labelling.

Under certain circumstances, regulatory requirements may be exempted and movement of non-compliant product from another province or country may be permitted. Pursuant to subsection 2.2 (2) of the Regulations, the Minister or a delegate of the Minister may exempt a product from minimum grade (quality), labelling or packaging requirements as prescribed by the Regulations, where the Minister considers it necessary in order to prevent or alleviate a shortage in Canada of a type of product.

The labelling, packaging and quality requirements may be waived when a Ministerial Exemption is requested for processing purposes. Generally, only the labelling and packaging requirements may be waived when a Ministerial Exemption is requested for repacking purposes. The quality requirement will be dictated by import or interprovincial requirements and in some cases, the applicant's specific requirements e.g. Agtron requirements, size, etc. It should be noted that in all cases, the practice has never been that health and safety requirements be waived.

Such discretionary authority provides the Minister with the ability to assist packers and/or processors to obtain the supplies necessary to continue operating and to meet demand for products by sourcing available supplies from another province or another country.

These guidelines for requesting and administering Ministerial Exemptions for potatoes are used by the Minister or a delegate of the Minister in exercising his or her discretion to issue Ministerial Exemptions for interprovincial and import trade of fresh potatoes. In the case of Ministerial Exemptions for fresh fruit and vegetables, the Minister's authority has been delegated to officials within the Canadian Food Inspection Agency (CFIA). Any reference to the Minister in these Guidelines includes the delegated officials within the CFIA.

2. Evidence of Shortage

Since an exemption from the regulatory requirements may only be issued by the Minister where it is necessary to prevent or alleviate a shortage in Canada, individuals seeking product should demonstrate, with evidence satisfactory to the Minister, that a shortage in supply exists.

A. Evidence on Case by Case Basis

Evidence of shortage will generally be considered adequate if, as a minimum, applicants verify availability of domestic supply within their respective province. Evidence of shortage may be obtained through the following sources:

known suppliers of potatoes
producer organizations, Marketing Boards, commodity commissions, etc.,

(Note: Provincial Departments of Agriculture may be contacted to determine appropriate organizations or Marketing Boards); or

any other source of information which may be beneficial to the Minister's delegate in determining the availability of domestic supply and/or considering the application for exemption.

For potatoes, applicants need only verify availability within the receiving province for both interprovincial and import exemptions.

In most cases, the Minister will consider that the requested product is not available if the applicant can demonstrate (e.g., facsimile send report) that no response was received by the applicant within two (2) working days of the receipt of the request for information. Responses should only indicate if supply is available or not. However, in cases where the suppliers, associations, boards, etc., indicate that suitable quality of supplies are available, they are to provide the applicant with satisfactory information on sources of those supplies, i.e., grower's name, address, telephone number, as well as the volume, expected date of availability or other such wording that would indicate the supply situation.

Evidence of shortage should accompany the application. Documentation may be forwarded to the appropriate office of the CFIA (see Appendix A for CFIA contacts in your region) by letter, facsimile, electronic mail messages or other means of printed communication. It is recommended that the evidence of shortage documentation be on the letterhead of the organization and signed by a responsible representative of the organization.

Suppliers, associations, boards, etc., are expected to provide prompt written responses to an applicant's request for information. Notations on the Ministerial Exemption application will not normally be accepted as evidence of shortage.

In addition, any other information which may be beneficial to the Minister in determining the availability of domestic supply and/or considering the application for exemption may also be taken into consideration.

If supply is determined to be available in Canada, the Minister will reject the application or portion thereof until supply is not available.

Applicants are required to identify dates for shipping of potatoes to assist in establishing appropriate start dates and cut-off dates for the Ministerial Exemption.

B. Evidence Based on 60-day Forward Contracts

In the absence of evidence to the contrary, applicants requesting Ministerial Exemptions may use 60-day Forward Contracts as sufficient evidence of shortage or anticipated shortage in the availability of domestic supply.

A 60-day Forward Contract must contain at a minimum the information contained in Appendix D.

In lieu of a copy of the actual contract, the applicant may provide the CFIA with a Contract Attestation which must be signed by a lawyer, notary public or justice of the peace. A blank copy of a Contract Attestation is provided in Appendix E. Area offices will keep copies of all Ministerial Exemption documentation on file.

When applying for a Ministerial Exemption based on a 60-day Forward Contract, where the applicant is not the end-user, the end-user must provide the applicant with a letter, on their letterhead, indicating the quantity of produce that they have agreed to purchase from the applicant, a copy of which the applicant must provide to CFIA with their application.

Note: In the case where applicants are not end-users, letters from end-users must cover the total volume in the 60-day Forward Contract or the Ministerial Exemption will be restricted to the volume that the end-users have indicated that they have agreed to purchase.

It should be noted that when providing a 60-day Forward Contract or Contract Attestation to the CFIA, information may be accessible or protected, as required, under the Access to Information Act. Therefore when submitting these documents, they should be identified as "Confidential Documents" either on the document itself or in an accompanying letter.

3. Availability of Supply

In the evaluation of supply, applicants may only include additional quality parameters which are quantifiable or measurable and which could be verified through inspection. Quality parameters will be considered on a case by case basis by the Minister. Examples of applicants' quality parameters include, but are not limited to: Agtron readings or size requirements. To assist the Minister and potential suppliers in assessing shortage or available supply, applicants are requested to include any additional quality parameter requirements in the Special Tolerances section of the Ministerial Exemption application.

The quality parameters stated on the application will be taken into account when availability of supply is being verified. However, these parameters cannot be in contradiction to other information supplied on the application. For example, an applicant cannot request that the Ministerial Exemption waive the grade to "field run" and also request that potatoes be inspected to "US No. 1".

Generally, in the case of potatoes for processing, the product need not meet one of the grades specified in the Fresh Fruit and Vegetable Regulations, but may be subject to the quality parameters specified by the applicant on the application.

In the case of potatoes for repacking, generally only labelling and packaging requirements may be waived.

Availability may be subject to review in the exercise of determining shortage for potatoes. In these instances, the CFIA may verify the quality of potatoes offered as being available.

Among other measures, if non-compliance with these guidelines is determined, the Minister may refuse to consider Ministerial Exemption applications or evidence of shortage letters.

4. Application

The applicant completes an application for a Ministerial Exemption and submits it to the CFIA office in the receiving province along with the supporting evidence (letter from industry, 60-day Forward Contract or Contract Attestation) and payment for the number of loads requested.

A standardized Request for an Exemption to the Fresh Fruit and Vegetable Regulations form is attached to these guidelines (Appendix B). This interactive Request for an Exemption to the Fresh Fruit and Vegetable Regulations CFIA/ACIA 4685, may be downloaded from our external website, photocopied or typeset copies may be obtained from designated CFIA offices (Appendix A).

The applicant is responsible for verifying that the potatoes for which a Ministerial Exemption is requested are in compliance with any other applicable Acts and Regulations, e.g., Food and Drugs Act and Regulations, Plant Protection Act and Regulations, etc. Note that a compliance agreement, plant health permit or phytosanitary certificate may be required for the importation of potatoes. The applicant is responsible for providing the plant health permit number in the "PPD No." box on the application.

For applicants using the case by case method of providing shortage, applicants may forward the application for a Ministerial Exemption to the CFIA and the request for evidence of shortage to the producer organization (or other such supplier) simultaneously. However, the application will not be processed until the application is considered to be complete.

For applicants using the 60-Forward Contract method of providing evidence of shortage or anticipated shortage, the CFIA requires that a copy of the actual 60-day Forward Contract between the participants or a Contract Attestation be submitted to them a minimum of 60 days prior to the commencement date of shipping. If the contract is not received a minimum of 60 days prior to the commencement date of shipping, the start date on the Ministerial Exemption will be adjusted accordingly.

The CFIA will issue a reference number, which the applicant must include on each application for a Ministerial Exemption, submitted based on that 60-day Forward Contract, in the box titled "Reason for Exemption Request". The 60-day Forward Contract or Contract Attestation will be kept on file and the CFIA will deduct the quantity accordingly from the total loads specified.

5. Processing of applications

A. Applications evaluated on Evidence of Shortage presented on Case by Case Basis:

Upon receipt of a completed application, to the appropriate CFIA office, (refer to Appendix A to these Guidelines for contact information) CFIA officials shall:

review the application, and submitted evidence to ascertain the completeness of the submission; and
ensure the proper payment for the Ministerial exemption is received.

If deficiencies are apparent, the applicant will be advised by the CFIA and the application will be placed on hold until the required information has been supplied or the proper payment has been received.

When the application appears to be complete, the delegate of the Minister will:

verify, prior to approval, any plant health requirements; and
if necessary, seek additional information relating to the application from other relevant parties in order to arrive at a decision.

a. For interprovincial Ministerial Exemptions for potatoes:

When satisfied that all requirements have been met, the Minister will generally approve the requested Ministerial Exemption, approve a portion of it or deny the request if an apparent shortage in the available supply from domestic production is not confirmed;
The Ministerial Exemption will be issued on CFIA letterhead with a Ministerial Exemption contract number. This Ministerial Exemption will indicate the total number of loads granted. (Appendix C) CFIA will send, by facsimile, a signed copy, to the appropriate CFIA shipping point inspection office and fax or send a copy to the applicant;
The shipper must request a subsequent Ministerial Exemption for each load from the CFIA shipping point inspection office, whereby Ministerial Exemptions will be printed for each individual load and authorized by a CFIA inspector. (Example: If a Ministerial Exemption is authorized for 3 loads, three separate Ministerial Exemptions will be printed and numbered 1 of 3, 2 of 3, and 3 of 3) The shipping point inspection office will forward the Ministerial Exemptions, with original signatures, to the shipper identified on the Ministerial Exemption. The signed Ministerial Exemption must accompany each load.
If the shipper cannot obtain original copies of the Ministerial Exemptions from the shipping point inspection office, then the Ministerial Exemptions may be faxed to the shipper. In these cases, the shipping point inspection office must notify the originating CFIA office that the Ministerial Exemptions are being faxed to the shipper. Shippers shall ensure that each load is accompanied by one of the faxed Ministerial Exemptions which clearly shows in the header that the fax was received from a CFIA office.
Once printed and issued by the CFIA, no person shall add, remove, or alter any information printed on a Ministerial Exemption whether it is an original or a faxed copy received from the CFIA.

b. For import Ministerial Exemptions for potatoes:

When satisfied, that all requirements have been met, a CFIA official will recommend the approval of the requested Ministerial Exemption, recommend the approval of a portion of it, or recommend that the request be denied if an apparent shortage in the available supply from domestic production is not confirmed;
Upon receipt of the recommendation, the delegate of the Minister in the CFIA's Agrifood Division will commence a review of the information and, if necessary, seek additional information relating to the application from other relevant parties, in order to arrive at a decision;
When satisfied, the Ministerial Exemption will be issued on CFIA letterhead with a Ministerial Exemption contract number. This Ministerial Exemption will indicate the total number of loads granted (Appendix C);
In the case of potatoes from the US, the CFIA's Agrifood Division will fax the issued Ministerial Exemption to the USDA and to the appropriate Area or Regional office who in turn will forward a copy to the applicant. The USDA Washington, D.C. office will forward a copy of the Ministerial Exemption to the appropriate shipping point office;
The USDA shipping point inspector will issue an inspection certificate certifying that this particular load meets the requirements of the Ministerial Exemption issued by the Minister under Ministerial Exemption Contract No. This inspection certificate will be in the form of a Memorandum of Inspection for Canadian Destination (FV-205). Should a bulk load arrive at the border and not be accompanied by a proper USDA certificate citing a Ministerial Exemption contract number, the load will be refused entry.
In the case of potatoes directly imported from places other than the US, the Ministerial Exemption is not forwarded to the USDA by the CFIA. In this situation the applicant must ensure that original Ministerial Exemption(s) are at the point of entry when the load(s) enter Canada. (e.g., courier the original Ministerial Exemption to the Customs' Broker at the point of entry to ensure that every load is accompanied by an original Ministerial Exemption.)

Directly imported means that the load is entering Canada without passing through any other country or is passing through the US under a Customs Bond.

In the case of directly imported potatoes, the applicant is required to notify the nearest CFIA inspection office of the arrival of the load, where, if necessary, an inspection will be performed to ensure compliance with the terms of the Ministerial Exemption. Should the bulk load not comply with the requirements, the applicant will be given options for its disposal.

Failure to notify the nearest CFIA inspection office of the arrival of each and every load will result in further control measures to ensure that loads comply with the terms of the Ministerial Exemption.

B. Applications evaluated on Evidence of Shortage based on 60-day Forward Conracts:

Applicants who wish their request for a Ministerial Exemption to be evaluated on evidence of shortage based on a 60-day Forward Contract may request that
the Ministerial Exemption be issued for the entire quantity of produce stated in the contract or separate requests may be made for portions of the total quantity. The reference number issued by the CFIA upon first receiving the 60-day Forward Contract or Attestation to such a contract must be included on all related Ministerial Exemption applications, in the box on the application titled "Reason for Exemption Request".

Submission of the contract or contract attestation would therefore not be required with each subsequent Ministerial Exemption request as the 60-day Forward Contract reference number would suffice.

Ministerial Exemptions based on 60-day Forward Contracts will be processed in accordance with Section 2. B. of these Guidelines.

Applicants are required to submit an application for each Ministerial Exemption requested, to the appropriate CFIA office, (refer to Appendix A of these Guidelines for contact information) CFIA officials shall:

review the application and Contract or Contract Attestation, to ascertain the completeness of the submission and if the application refers to a previously submitted contract or contract attestation, the 60-day Forward Contract will be verified;
ensure the proper payment for the Ministerial Exemption is received.

If deficiencies are apparent, the applicant will be advised and the application will be placed on hold until the required information has been supplied or the proper payment has been received.

When the application appears to be complete, the delegate of the Minister will:

verify, prior to approval, any plant health requirements; and
if necessary, seek additional information relating to the application in order to arrive at a decision.

Procedures for the administration of Ministerial Exemptions issued on the basis of 60-day Forward Contracts will be done in accordance with section 5. A. (a) and (b) of these Guidelines.

C. Requirements for all Applications:

Ministerial Exemptions are issued for a particular province and are not to be used to ship product into another province and are non-transferable between applicants.

Ministerial Exemptions will not be restricted to a monthly basis, but may be granted for any period of time subject to evidence of shortage presented on case by case basis or 60-day Forward Contracts. Note that Ministerial Exemptions must expire on December 31^st of each year in order to accommodate the Ministerial Exemption contract numbering system.

In cases where quality or suitability of potatoes offered as available is in question, Ministerial Exemptions may be issued on a limited basis until the issue is resolved.

When an exemption for only a portion of the volume requested on the original application is granted, a CFIA official will advise the applicant of the change of volume. Additionally, when an application is denied, the CFIA official will notify the applicant of the decision in writing, return the application with a statement that the request has been denied and return the applicable payment.

6. Payment for Ministerial Exemptions

As noted in Section 4, the applicant must submit payment of the fee with the application for an exemption from the Fresh Fruit and Vegetable Regulations.

In accordance with Section 2 of Part 6 of the Canadian Food Inspection Agency Fees Notice pursuant to the Canadian Food Inspection Agency Act, the fees prescribed for Ministerial Exemptions shall be paid at the time of the request for an exemption or the fee prescribed by this Notice is payable on receipt of a statement for services supplied by the CFIA.

The fee that is payable for a Ministerial Exemption conferred under Item 1 of the Table in Part 6 of the Canadian Food Inspection Agency Fees Notice is $20.00 per load.

*For the purpose of issuing Ministerial Exemptions and calculating the appropriate fees, in the case of 60-day Forward Contracts based on volume, one load will be calculated as equalling 50,000 lb.

No refund will be given for unused portions of an approved Ministerial Exemption, except in the case where the Agency has terminated the Ministerial Exemption earlier than stated on the Ministerial Exemption contract.

When a request for Ministerial Exemption is denied, the CFIA will return the application along with the payment to the applicant.

7. Amendments to Ministerial Exemptions

The applicant must complete a new application for any amendment to an existing Ministerial Exemption. The amended application must be submitted to the CFIA office in the receiving region.

In certain circumstances, the applicant may be asked to provide additional evidence that the product is still in shortage.

Amendments to Ministerial Exemptions issued based on 60-day Forward Contracts may be issued if they are not in contravention to the original contract.

8. Payment for Amendments

No fee will be charged for an amendment to an existing Ministerial Exemption when the amendment is for a change to:

the cut-off date;
the name and address of shipper(s) or adding a shipper(s);
the quality requirements (i.e., grade, size or colour); or

A new Ministerial Exemption must be issued and payment will be requested when the applicant wishes to increase the quantity from what was originally applied for.

A new Ministerial Exemption must be issued when the applicant wishes to change the state when importing from the United States, or change the province of receipt when moving produce interprovincially.

Appendix A - Designated Canadian Food Inspection Agency Offices

Alberta
Fresh Fruit and Vegetable Program Network Specialist / Agrifood Division
Room W1-03, 1115-57 Avenue North East
Calgary, Alberta
T2G 4X3
Telephone: 403-292-6746
Facsimile: 403-292-6629

Atlantic
Fresh Fruit and Vegetable Program Network Specialist / Agrifood Division
8768 Main Street, Unit 2
Florenceville-Bristol, New Brunswick
E7L 3G3
Telephone: 506-392-5814
Facsimile: 506-392-8370

British Columbia
Fresh Fruit and Vegetable Program Network Specialist / Agrifood Division
4321 Still Creek Drive, Suite 400
Burnaby, British Columbia
V5C 6S7
Telephone: 604-666-7778
Facsimile: 604-666-1963

Manitoba/Saskatchewan
Fresh Fruit and Vegetable Program Network Specialist / Agrifood Division
613-269 Main Street
Winnipeg, Manitoba
R3C 1B2
Telephone: 204-984-6186
Facsimile: 204-983-8022

Ontario
Fresh Fruit and Vegetable Program Network Specialist / Agrifood Division
174 Stone Road
Guelph, Ontario
N1G 4S9
Telephone: 519-837-9400
Facsimile: 519-837-9772

Quebec
Fresh Fruit and Vegetable Program Network Specialist / Agrifood Division
7^th Floor, University Street
Montreal, Quebec
H3A 3N2
Telephone: 514-283-8888
Facsimile: 514-283-3272