Regulations Amending the Regulations Designating Regulatory Provisions for Purposes of Enforcement (Canadian Environmental Protection Act, 1999): SOR/2022-89
Canada Gazette, Part II, Volume 156, Number 10
Registration
SOR/2022-89 May 2, 2022
CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999
P.C. 2022-444 April 29, 2022
Whereas, pursuant to subsection 332(1)footnote a of the Canadian Environmental Protection Act, 1999 footnote b, the Minister of the Environment published in the Canada Gazette, Part I, on July 10, 2021 a copy of the proposed Regulations Amending the Regulations Designating Regulatory Provisions for Purposes of Enforcement (Canadian Environmental Protection Act, 1999), in the annexed form, and persons were given an opportunity to file comments with respect to the proposed Regulations or to file a notice of objection requesting that a board of review be established and stating the reasons for the objection;
Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of the Environment, pursuant to section 286.1footnote cof the Canadian Environmental Protection Act, 1999 footnote b, makes the annexed Regulations Amending the Regulations Designating Regulatory Provisions for Purposes of Enforcement (Canadian Environmental Protection Act, 1999).
Regulations Amending the Regulations Designating Regulatory Provisions for Purposes of Enforcement (Canadian Environmental Protection Act, 1999)
Amendment
| Item | Column 1 Regulations |
Column 2 Provisions |
|---|---|---|
| 36 | Formaldehyde Emissions from Composite Wood Products Regulations | (a) section 5 |
Coming into Force
2 These Regulations come into force on the day on which the Formaldehyde Emissions from Composite Wood Products Regulations come into force, but if they are registered after that day, they come into force on the day on which they are registered.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
Issues
The proposed and final Formaldehyde Emissions from Composite Wood Products Regulations (the Formaldehyde Regulations) were published in the Canada Gazette, Part I and Part II, without the related proposed and final amendments to the Regulations Designating Regulatory Provisions for Purposes of Enforcement (Canadian Environmental Protection Act, 1999) [the Designation Regulations]. Without those related amendments, the penalties available to address non-compliance with respect to the Formaldehyde Regulations would not be consistent with those available for similar regulations made under the Canadian Environmental Protection Act, 1999 (CEPA). Accordingly, the Minister of the Environment (the Minister) recommended that the Governor in Council add the prohibition provisions set out in the Formaldehyde Regulations to the schedule to the Designation Regulations.
Background
The Designation Regulations are a tool used by the Department of the Environment (the Department) to designate various regulatory provisions made pursuant to CEPA as being subject to the fine regime under the Environmental Enforcement Act. Specifically, any regulatory provisions listed in the schedule to the Designation Regulations are subject to a minimum fine and higher maximum fines, should there be a successful prosecution of an offence involving harm or risk of harm to the environment, or obstruction of authority.footnote 2 As of October 2021, there are regulatory provisions associated with 35 regulations listed on the schedule to the Designation Regulations, including several that were made under section 93 of CEPA, such as those related to the control of asbestos, volatile organic compounds, methane, and mercury.
Under section 93 of CEPA, the Minister of Health and the Minister of the Environment published the proposed Formaldehyde Regulations in the Canada Gazette, Part I, on June 29, 2019, and the final Formaldehyde Regulations in the Canada Gazette, Part II, on July 7, 2021. Upon coming into force on January 7, 2023, the Formaldehyde Regulations will prohibit the import, sale, and offer for sale of composite wood products that emit formaldehyde above established limits, on the basis that formaldehyde in indoor air can cause irritation of the eyes, nose, and throat, may worsen asthma symptoms (especially in children), and, at higher levels, is associated with cancer of the nasal passageways. The proposed and final regulatory texts for the Formaldehyde Regulations in these publications did not include the proposed and final regulatory text for related amendments to add the prohibition provisions set out in the Formaldehyde Regulations to the schedule to the Designation Regulations, rendering the compliance and enforcement approach in the Formaldehyde Regulations inconsistent with those in similar regulations.
Objective
The objective of the Regulations Amending the Regulations Designating Regulatory Provisions for Purposes of Enforcement (Canadian Environmental Protection Act, 1999) [the Amendments] is to achieve consistency in the compliance and enforcement approach used by the Department across similar regulations. Adding the prohibition provisions set out in the Formaldehyde Regulations to the schedule to the Designation Regulations designates the Formaldehyde Regulations as being subject to a minimum fine and higher maximum fines should there be a successful prosecution of an offence.
Description
The Amendments add the prohibitions on the import, sale, and offer for sale of certain composite wood products, as set out in the Formaldehyde Regulations to the schedule to the Designation Regulations.
Regulatory development
Consultation
The Amendments are administrative in nature and do not introduce any new regulatory requirements, thus no direct impacts on stakeholders are anticipated. Furthermore, amendments to the Designation Regulations were originally intended to be included in the Formaldehyde Regulations, as noted in the “Description” section of the proposed and final Regulatory Impact Analysis Statement for those Regulations. For these reasons, the Department did not conduct any formal pre-consultations on the proposed Amendments. However, to promote awareness and increase transparency, the Department sent targeted emails to key stakeholders of the Formaldehyde Regulations (i.e. manufacturers and importers of composite wood products) in order to notify potentially interested parties of the draft publication. On July 10, 2021, the proposed Amendments were published in the Canada Gazette, Part I, for a 75-day public comment period. No comments were received on the proposal. The Department also informed the provincial and territorial governments about this publication through the CEPA National Advisory Committeefootnote 3 via a letter, providing them with an opportunity to comment. No comments were received from the Committee.
Modern treaty obligations and Indigenous engagement and consultation
An assessment of modern treaty implications conducted in accordance with the Cabinet Directive on the Federal Approach to Modern Treaty Implementation concluded that amendments adding the prohibition provisions set out in certain regulations to the schedule to the Designation Regulations do not introduce any new regulatory requirements and, therefore, do not result in any impact on modern treaty rights or obligations. As a result, specific engagement and consultations with Indigenous peoples were not undertaken. The prepublication comment period, which was open to all Canadians, provided an opportunity for Indigenous peoples to provide feedback on the proposed Amendments.
Instrument choice
Maintaining the status quo would have meant that the penalties available to address non-compliance with respect to the Formaldehyde Regulations would have remained inconsistent with those available for similar regulations, and that the effectiveness with which the Department could promote compliance and enforce the Formaldehyde Regulations would have remained compromised. The Department does not have non-regulatory mechanisms that could have rectified this enforcement gap. The Amendments correct the inconsistency and increase compliance and enforcement effectiveness using a pre-existing regulatory tool. The Department considers that the status quo is undesirable relative to the Amendments and, accordingly, has identified an addition to the schedule to the Designation Regulations as the chosen instrument.
Regulatory analysis
Benefits and costs
The Amendments do not impose any regulatory requirements on businesses and, therefore, do not result in any incremental costs for stakeholders or the Government of Canada. The Amendments ensure that the penalties available to address non-compliance with respect to the Formaldehyde Regulations are consistent with those available for similar regulations, and increase the effectiveness with which the Department can promote compliance and enforce the Formaldehyde Regulations.
Small business lens
Analysis under the small business lens determined that the Amendments do not impact small businesses in Canada.
One-for-one rule
The one-for-one rule does not apply to the Amendments, as there is no change in administrative costs or burden to business.
Regulatory cooperation and alignment
There is no regulatory cooperation or alignment component associated with the Amendments.
Strategic environmental assessment
In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required, given that the Amendments do not alter the environmental objectives of the affected regulations.
Gender-based analysis plus
No gender-based analysis plus (GBA+) impacts have been identified for these regulatory amendments.
Implementation, compliance and enforcement, and service standards
The Amendments will come into force on the same date as the Formaldehyde Regulations (January 7, 2023), unless they are registered after that day, in which case they will come into force upon their registration. The Amendments will not result in any new implementation, compliance, or enforcement implications, as they only enhance the existing implementation, compliance, and enforcement regimes surrounding the Formaldehyde Regulations. There are no service standards associated with these regulatory amendments.
When enforcing the Formaldehyde Regulations under the Amendments, the enforcement tools to be applied will be determined by the enforcement officer based on a consideration of what is most appropriate in the circumstances. In cases involving minor situations of non-compliance, a warning, compliance order or ticket may be appropriate and, in those cases, the increased fine regime would not apply. However, in cases where a violation of a prohibition under the Formaldehyde Regulations is considered a serious offence, prosecution may be the appropriate enforcement tool and, in such cases, the increased fine regime would apply upon determination of guilt.
Contacts
Matthew Watkinson
Director
Regulatory Analysis and Valuation Division
Department of the Environment
200 Sacré-Cœur Boulevard
Gatineau, Quebec
K1A 0H3
Email: ravd.darv@ec.gc.ca
Andrew Beck
Director
Risk Management Bureau
Safe Environments Directorate
Health Canada
269 Laurier Avenue West
Ottawa, Ontario
K1A 0K9
Email: formaldehyde-formaldehyde@hc-sc.gc.ca