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OG/OO-24783 - Operational guideline: Referring non-compliance for potential enforcement through issuance of a Notice of Violation under the Administrative Monetary Penalty (AMP) regime

Although the Safe Food for Canadians Regulations (SFCR) came into force on January 15, 2019, certain requirements may apply in 2020 and 2021 based on food commodity, type of activity and business size. For more information, refer to the SFCR timelines.

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1.0 Purpose

To provide guidance to inspectors on when to consider referring non-compliance for potential enforcement through issuance of a Notice of Violation (NOV) under the Administrative Monetary Penalty (AMP) regime. A NOV may be issued when a regulated party is not compliant with a contravention designated as a violation under Schedule 1 of the Agriculture and Agri-Food Administrative Monetary Penalties Regulations.

2.0 Potential use

AMPs may be an appropriate enforcement response to non-compliance with designated provisions of the following regulations:

The expansion of AMPs to designated provisions of the SFCA and SFCR provides the CFIA with an additional enforcement option to manage non-compliance detected during food-related inspection activities. This will allow designated persons within the CFIA to exercise their discretion on a case-by-case basis to issue a notice of violation (NOV) with warning or penalty for violations of the listed provisions of the SFCA and Regulations. The Standard regulatory response process (SRRP) provides guidance on when an AMP may be considered as an enforcement response option.

3.0 Authorities

4.0 Acronyms

AAAMPA

Agriculture and Agri-Food Administrative Monetary Penalties Act

AAAMPR

Agriculture and Agri-Food Administrative Monetary Penalties Regulations

AMP

Administrative monetary penalty

CVS

Compliance verification system

DSDP

Digital Service Delivery Platform

EIS

Enforcement and investigation services

FNNC

Final Notice of Non-Compliance

INCR

Inspector Non-Compliance Report

IR-CAR

Inspection report - corrective action request

LoNC

Letter of Non-Compliance

MwtRP

Meeting with the Regulated Party

NOV

Notice of violation

SFCA

Safe Food for Canadians Act

SFCR

Safe Food for Canadians Regulations

SIP

Standard inspection procedure

SRRP

Standard regulatory response process

5.0 Background

5.1 Authority to issue administrative monetary penalties

The Agriculture and Agri-Food Administrative Monetary Penalties Act (AAAMPA) provides the authority for a person designated under that Act to issue a Notice of Violation (NOV) for a violation under a variety of provisions that are listed under Schedule 1 of the Agriculture and Agri-Food Administrative Monetary Penalties Regulations (AAAMPR).

The authority to issue a NOV is found under subsection 7(2) of the AAAMPA:

The AAAMPR designate violations that may be subject to a NOV and determine the gravity levels as minor, serious or very serious, setting base penalty amounts that may range from $500 to $10,000.

A designated official for the purpose of subsection 7(2) of the AAAMPA is a person or class of person designated pursuant to section 6 of the AAAMPA:

Section 6 of the AAAMPA: The Minister may designate persons, or classes of persons, who are authorized to issue notices of violation.

5.2 Relationship between the CFIA administrative monetary penalty regime and inspection processes

6.0 Procedures

When non-compliance with a provision listed in Schedule 1 of the AAAMPR is identified, the inspector should complete the inspection, gather all relevant information, and depending on the situation, consider taking immediate control action(s) to mitigate risk. Such actions may include seizing and detaining products, placing products under quarantine or immediately stopping an activity.

6.1 Determine if an AMP may be an appropriate enforcement response

Once the inspection has been completed and if applicable, necessary control actions are in place, the inspector can refer to the steps outlined in section 5.2.1 – Enforcement process of the Standard regulatory response process (SRRP) to determine the range of potential appropriate enforcement responses. The choice is based on the harm or potential harm of the non-compliance as well as the regulated party's compliance history and intent.

6.2 Assemble the information gathered supporting non-compliance

If the SRRP enforcement matrix suggests an AMP as a potential enforcement response, the inspector will assemble copies of all the pertinent information outlining non-compliance to create an inspector non-compliance report (INCR) referral package. The Inspector non-compliance report form (CFIA/ACIA 5393) should be used as a cover sheet for the INCR referral package.

The inspector should also include details of the regulated party's compliance history during the previous five year period where the CFIA has:

6.3 Submit INCR referral package for initial review

The INCR referral package will be reviewed prior to being forwarded for enforcement consideration. Follow established referral processes for your area.

The person(s) responsible for reviewing the INCR referral package will either:

The person(s) responsible for reviewing the INCR referral package evaluate the facts of the non-compliance using section 5.2.1 – Enforcement process of the Standard regulatory response process (SRRP).

6.4 Designated person reviews the facts and determines if an AMP is an appropriate enforcement response

A designated person, after having evaluated all the facts and having determined that there are reasonable grounds to believe that a violation has been committed and the elements of the violation have been met on a balance of probabilities standard, may exercise their discretion under subsection 7(2) of the AAAMPA to issue an NOV with a warning, or an NOV with a penalty. If the facts of the file warrant it, an alternate enforcement approach may be selected. Again, section 5.2.1 – Enforcement process of the Standard regulatory response process (SRRP) is consulted to assist in the selection of an alternate enforcement response.

6.5 Designated person issues the NOV

Only CFIA designated persons who have been trained and designated to issue NOVs under the AMP regime may do so. An NOV is considered issued once the designated person has signed and dated the NOV form and is ready to be served (delivered) once it has been issued.

6.6 Serving an NOV

The CFIA designated person serving the NOV on the regulated party does so according to the requirements of section 8 of the AAAMPR using the Certificate of Service (CFIA/ACIA 5197) and the NOV cover sheet (see Annex A).

For general inquiries related to this operational guidance document, please follow established communication channels, including submitting an electronic Request for Action Form (e-RAF).

ANNEX A: Notice of Violation (NOV) Cover sheet

IMPORTANT INFORMATION - PLEASE READ CAREFULLY

You are being served with a Notice of Violation issued pursuant to subsection 7 (2) of the Agriculture & Agri-food Administrative Monetary Penalties Act.

A Notice of Violation is a legal process. You have both legal rights and legal obligations with respect to service of this Notice of Violation. Your legal rights and obligations are detailed on the reverse side of the notice.

It is important that you read the option information and option instructions on the back of the notice. You must choose an option and follow the instructions precisely to exercise your rights.

This Notice of Violation is deemed to be served on, space pursuant to Sections 8 and 9 of the Agriculture and Agri-food Administrative Monetary Penalty Regulations

INFORMATION IMPORTANTE - VEUILLEZ LIRE ATTENTIVEMENT

Vous recevez le présent procès-verbal en vertu du paragraphe 7(2) de la Loi sur les sanctions administratives pécuniaires en matière d'agriculture et d'agroalimentaire.

L'imposition d'un procès-verbal est une procédure juridique. Vous avez des droits et des obligations juridiques relativement à la signification du présent procès-verbal. Ceux-ci sont expliqués en détail au verso de l'avis.

Il est important que vous lisiez les informations et instructions concernant ces options au verso de l'avis, car vous devez choisir une de ces options et suivre minutieusement les instructions s'y rattachant pour exercer vos droits.

Le présent procès-verbal est réputé avoir été notifié le space, conformément aux articles 8 et 9 du Règlement sur les sanctions administratives pécuniaires en matière d'agriculture et d'agroalimentaire.

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