Regulations Amending Certain Regulations Made Under the Fisheries Act: SOR/2023-147

Canada Gazette, Part II, Volume 157, Number 14

Registration
SOR/2023-147 June 23, 2023

FISHERIES ACT

P.C. 2023-651 June 23, 2023

Her Excellency the Governor General in Council, on the recommendation of the Minister of Fisheries and Oceans, makes the annexed Regulations Amending Certain Regulations Made Under the Fisheries Act under subsection 43(1)footnote a of the Fisheries Act footnote b.

Regulations Amending Certain Regulations Made Under the Fisheries Act

Yukon Territory Fishery Regulations

1 Subsection 6(7) of the Yukon Territory Fishery Regulations footnote 1 is replaced by the following:

(7) Except as otherwise provided as a condition of a licence issued under these Regulations, each gang of nets shall be marked at each end during open water fishing by a buoy, and during winter fishing by a stake the top of which shall be at least 1.2 m above the surface of the ice.

(7.1) The Minister may specify a licence condition referred to in subsection (7) only if the purpose of the condition is to mitigate marine mammal entanglement.

Fishery (General) Regulations

2 The headings before section 4 of the Fishery (General) Regulations footnote 2 are replaced by the following:

PART I
Periods of Time and Variation Orders

Periods of Time

3 Section 6 of the Regulations is replaced by the following:

6 (1) If a close time, fishing quota, limit on the size or weight of fish or fishing gear or equipment is fixed in respect of an area under any of the Regulations listed in subsection 3(4), the Regional Director-General may, by order, vary that close time, quota, limit, gear or equipment in respect of that area or any portion of that area.

(2) If a close time, fishing quota or fishing gear or equipment for herring or salmon fishing is fixed in respect of an area under the Pacific Fishery Regulations, 1993, a fishery officer may, by order, vary that close time, quota, gear or equipment in respect of that area or any portion of that area.

(3) If a close time, fishing quota, limit on the size or weight of fish or fishing gear or equipment is fixed in respect of an area of non-tidal waters for any species of fish other than salmon under the British Columbia Sport Fishing Regulations, 1996, the director responsible for fisheries management in the ministry responsible for fisheries in the Government of British Columbia may, by order, vary that close time, quota, limit, gear or equipment in respect of that area or any portion of that area.

(4) If a close time, fishing quota, limit on the size or weight of fish or fishing gear or equipment is fixed in respect of an area of non-tidal waters for any species of fish other than salmon under the Yukon Territory Fishery Regulations, the Director of the Fish and Wildlife Branch of the Department of Environment for the Yukon Territory may, by order, vary that close time, quota, limit, gear or equipment in respect of that area or any portion of that area.

(5) If a close time, fishing quota, limit on the size or weight of fish or fishing gear or equipment is fixed in respect of an area of the province of New Brunswick under the Maritime Provinces Fishery Regulations, the director responsible for fisheries management in the ministry responsible for fisheries in the Government of New Brunswick may, by order, vary that close time, quota, limit, gear or equipment in respect of that area or any portion of that area for any species of fish listed in Appendix A of the Canada–New Brunswick Memorandum of Understanding on Recreational Fisheries, dated June 18, 2001, as amended from time to time.

(6) If a close time, fishing quota, limit on the size or weight of fish or fishing gear or equipment is fixed in respect of an area of the province of Nova Scotia under the Maritime Provinces Fishery Regulations, the director responsible for fisheries management in the ministry responsible for fisheries in the Government of Nova Scotia may, by order, vary that close time, quota, limit, gear or equipment in respect of that area or any portion of that area for any species of fish listed in Appendix A to the Canada–Nova Scotia Memorandum of Understanding on Recreational Fisheries, dated September 17, 2003, as amended from time to time.

4 (1) The portion of subsection 27(6) of the Regulations before paragraph (a) is replaced by the following:

(6) Except as otherwise provided as a condition of a licence, a tag, float or buoy referred to in subsection (2) shall

(2) Section 27 of the Regulations is amended by adding the following after subsection (6):

(7) The Minister may specify a licence condition referred to in subsection (6) only if the purpose of the condition is to mitigate marine mammal entanglement.

Pacific Fishery Regulations, 1993

5 Subsection 13(1) of the Pacific Fishery Regulations, 1993 footnote 3 is replaced by the following:

13 (1) Except as otherwise provided as a condition of a licence issued under these Regulations, no person shall fish with a gill net unless it is marked in accordance with this section.

6 Section 14 of the Regulations is replaced by the following:

14 Except as otherwise provided as a condition of a licence issued under these Regulations, no person shall fish with a longline unless it has attached to each end a buoy floating on the surface of the water.

7 The portion of subsection 15(1) of the Regulations before paragraph (a) is replaced by the following:

15 (1) Subject to subsection (2) and except as otherwise provided as a condition of a licence issued under these Regulations, no person shall fish for commercial purposes with traps or ring nets unless a buoy floating on the surface of the water is attached to

8 The Regulations are amended by adding the following after section 15:

16 The Minister may specify a licence condition referred to in subsection 13(1), section 14 or subsection 15(1) only if the purpose of the condition is to mitigate marine mammal entanglement.

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.)

Issues

The effective management of fish stocks and their ecosystems is key to ensuring the sustainability of marine resources in Canadian waters. Given the dynamic nature of the marine environment, fisheries management measures must be flexible and adaptive.

Among a range of mechanisms, there are two tools available to Fisheries and Oceans Canada (DFO) that give discretion to those who have the delegated authority for fisheries management to respond in a timely manner to changes in any given fishery: (i) conditions specified in fishing licences and (ii) regulatory variation orders. In recent years, stakeholders and DFO have become aware of gaps in the applicable regulations that unduly and negatively impact the effective and timely application of these tools in response to evolving conservation needs.

Fishing gear identification requirements in conditions of fishing licences

The Fishery (General) Regulations (FGR) authorize the Minister of Fisheries and Oceans (Minister) to include conditions in a fishing licence related to fishing gear and equipment for the proper management and control of fisheries and the conservation and protection of fish; this includes the type, size, and quantity of fishing gear that is permitted to be used and the manner in which it is permitted to be used. These licence conditions cannot, however, be contrary to the FGR or the regulations listed in subsection 3(4) of the FGR. The way that the FGR is currently drafted prohibits the Minister from authorizing alternative fishing gear, if that fishing gear is contrary to regulatory gear marking requirements, even if this would address the issue of marine mammal entanglement. Since the Pacific Fishery Regulations and the Yukon Territory Fishery Regulations are listed under 3(4) of the FGR, this also applies to them.

Regulatory variation orders for fishing equipment and gear

Restrictions related to fishing close times, quotas, and limits on the size or weight of fish are fixed in regulations under the Fisheries Act (Act); however, delegated individuals within DFO or prescribed persons within provincial and territorial governments may be authorized to vary these requirements in order to respond to emerging conservation and fisheries management needs.

In 2019, the Act was amended to create a new regulations-making authority to empower delegated individuals to also vary fishing gear or equipment. Amendments to the FGR are required in order to permit the issuance of variation orders with respect to fishing equipment or gear.

Background

In Canadian fisheries waters, fishing activities are managed under a suite of regulations that fall under the Act. This includes the FGR, which set out requirements that control fishing and related activities along Canadian coasts, and within the provinces of Nova Scotia, New Brunswick, British Columbia, Prince Edward Island, Newfoundland and Labrador, and in the Yukon Territory and Northwest Territories.

Given the unpredictable nature of the marine environment and need for rapid fisheries management responses, the Act and the FGR were designed to include mechanisms for provincial, territorial, and DFO officials to modify regulatory requirements throughout the fishing season; this includes conditions of fishing licences and regulatory variation orders to change requirements related to fishing gear, fishing close times, fishing quotas, and the size and weight limits on fish. Unlike regulatory changes, fishing licence conditions and variation orders can be more timely and flexible to make necessary changes when circumstances warrant, or when existing restrictions for fisheries management or conservation purposes may no longer be adequate.

Fishing gear identification requirements in conditions of fishing licences

Section 22 of the FGR authorizes the Minister to specify in a licence a broad range of conditions for the proper management and control of fisheries and for the conservation of fish (which includes marine mammals in accordance with the Act), including the type, size and quantity of fishing gear and equipment and the manner in which it is permitted to be used. These measures allow DFO to manage Canadian fisheries and to protect Canada’s oceans and ecosystems from negative impacts.

Conditions of licence are a key instrument used by fisheries managers in order to establish rules during the fishing season. These conditions are attached to fishing licences that have been issued and serve as an important reference document for fishers with regards to what rules must be followed. Conditions of fishing licences cannot, however, be inconsistent with the FGR or any of the regulations listed in subsection 3(4) of the FGR. Currently, the FGR require that all fishing gear, other than mobile gear and handlines, be identified at the surface of the water via a tag, float or buoy attached to each end of the gear. These vertical lines can create a substantial entanglement risk to marine mammals and other marine species, particularly in areas where fishing activity is dense.

This is particularly important in Eastern Canada where entanglement in fishing gear is one of the two leading causes of mortality for the North Atlantic right whale (NARW). An estimated one million fishing lines, mostly buoy lines, connected to traps and pots used to catch lobster and crab, are spread across NARW migratory routes between Canada and the United States (U.S.). The NARW has been listed as Endangered under the Species at Risk Act (SARA) since 2005. In 2010, the total population was estimated to be 468 individuals. The 2021 estimate is 340 individuals, a 30 per cent decline since 2011, and the lowest population estimate in 20 years. Most concerningly, fewer than 100 are thought to be breeding females and births are not sufficient for the population to stabilize and grow.

Measures currently being used to reduce NARW injuries and mortalities include the establishment of dynamic and season-long fishing area closures for non-tended fixed gear fisheries, including lobster and crab; adjusting opening and closing times in key fisheries; mandatory reporting of lost and found fishing gear and accidental contact between marine mammals and fishing gear; aerial, vessel, and acoustic surveillance to detect the presence of vulnerable marine mammal populations; and fishery-specific gear marking for all fixed gear fisheries. DFO also continues to fund trials of new, innovative fishing gear that could reduce marine mammal entanglement, including ropeless and rope-on-demand fishing gear. Despite these measures, NARW injuries and mortalities continue to occur and further mitigation measures are required to recover this endangered species.

Reducing marine mammal entanglements in Canadian fisheries is an important priority given changes to the U.S. Marine Mammal Protection Act (MMPA). In 2016, the MMPA’s import provisions were amended which established new requirements for nations exporting fish and fish products to the U.S. Commencing on January 1, 2024, and every four years thereafter, foreign commercial fisheries and aquaculture operations must demonstrate that it has fisheries management measures to keep marine mammal bycatch levels comparable to U.S. levels in order to maintain access to the U.S. market.

The U.S. is Canada’s largest export destination for fish and seafood by value. In 2022, Canada exported $5.46B in fish and seafood products to the U.S., accounting for 65 per cent of total Canadian fish and seafood exports by value. According to 2022 trade data, lobster and snow crab are the top two exported species to the U.S. with sales of $1.63B and $1.49B respectively. Flexibility to implement alternative gear identification requirements to minimize marine mammal entanglement and bycatch in commercial fisheries will provide Canada with an important fisheries management measure to help secure ongoing access to the U.S. market.

Regulatory variation orders for fishing equipment and gear

In 2019, the Act was amended to provide delegated individuals with the authority to vary fishing gear or equipment in respect of an area under the regulations that fall under its authority. This legislative change was completed in response to an issue raised by the Standing Joint Committee for the Scrutiny of Regulations (SJCSR) with regard to how variation orders that impact fisheries close times can sometimes also inadvertently affect gear or equipment restrictions. For example, if a specific fishing gear is listed with an associated close time, and that close time is varied to a full year, the act of varying the close time will have a direct impact on gear restrictions included in the regulations.

Objective

The objective of the regulatory amendments is to provide explicit authorities to include fishing gear identification requirements in conditions of fishing licences for the purposes of mitigating marine mammal entanglement, and issue regulatory variation orders for fishing equipment and gear. These additional fisheries management measures will provide an enhanced response to rapid and emerging conservation and sustainability needs and will complement existing measures put in place to address vulnerable marine mammal populations, including the NARW. These measures will also support market access objectives by affording flexibility to use single endlines to identify trawls or to employ ropeless or rope-on-demand fishing technology to continue to fish in areas otherwise closed to fishing.

The regulatory amendments are aligned with recent amendments to the Act and would address an outstanding issue that has been raised by the SJCSR with respect to the use of variation orders for gear and equipment.

Description

The regulatory amendments to the FGR

Consequential amendments are also made to the Pacific Fishery Regulations and the Yukon Territory Fishery Regulations to provide the same gear marking flexibility as in the FGR.

Regulatory development

Consultation

The proposal to remove the requirement to identify fishing gear by marking both ends of the gear began as an industry initiative in 2014 to address concerns about whale entanglements in lobster fishing areas in the Bay of Fundy. Since then, DFO has also consulted with other industry stakeholders and Indigenous groups on proposals to reduce vertical lines in the water column.

In 2015, several regions conducted targeted phone calls to fishing industry and non-governmental organizations to seek feedback on the amendments. In 2017, each region consulted fish harvesters through the annual advisory meeting process about proposed amendments to the FGR that would permit exceptions to the two-endline regulatory gear identification requirement.

In 2017, Indigenous groups, provincial and territorial governments, industry associations and other participants provided feedback on the threat of entanglement for marine mammals, including NARW, and methods of reducing the threat, including through gear modification and new fishing gear technologies, during the Government’s “Let’s Talk Whales Initiative.”

In 2018 and 2019, DFO held a North Atlantic Right Whale Roundtable whose participants included representatives from the fishing industry, Indigenous groups, scientists, and other partners. The 2019 roundtable discussed potential fisheries management measures to prevent interaction with NARW, including the current proposal to repeal the two-endline requirement in the FGR. Several industry and environmental non-governmental groups (ENGOs) expressed frustration that vertical lines could not be removed because of the regulatory requirement. Additional consultations with fish harvesters and other stakeholders were held in 2019 during a series of regional workshops in Atlantic Canada and Quebec to discuss potential fisheries management measures that could be implemented to meet the import requirements of the U.S. MMPA, including measures to reduce vertical lines. Overall, the response was favourable to the proposed amendments to the gear identification requirements in the FGR.

In February 2020, DFO hosted a Gear Innovation Summit in which over 250 fish harvesters, industry representatives, ENGOs and government officials from Canada and other countries discussed whale-safe fishing gear technologies to reduce the amount of rope in the water, thereby lowering the risk of future whale entanglements. DFO’s Whalesafe Gear Adoption Fund (WSGF) and joint federal-provincial funding programs have supported approximately two dozen projects testing ropeless fishing gear technology innovations that remove vertical lines from the water column, thereby reducing entanglement risk. As gear trials proceed and ropeless fishing technology improves, harvesters are increasingly indicating to the Department that they would like to use this technology in their commercial fishing operations. The FGR amendment will support more widespread use of ropeless and rope-on-demand fishing gear.

While consultations did not take place specifically with respect to potential regulatory changes related to the use of variation orders for gear and equipment, these changes were included as part of the Parliamentary review of the Act that took place from 2016 to 2018. Variation orders are standard fisheries management tools employed by DFO on a fishery-specific basis. The use of variation orders and other fisheries management tools form part of the consultations that DFO has with industry on a regular basis. The regulatory amendment resolves an outstanding issued raised by the SJCSR and ensures that appropriate authorities flow from the Act to the FGR.

Modern treaty obligations and Indigenous engagement and consultation

As per the 2015 Cabinet Directive on the Federal Approach to Modern Treaty Implementation, an assessment was conducted on this proposal. The FGR applies in Canadian fisheries waters off the Atlantic, Pacific, and Arctic coasts, as well as to fishing and related activities in the provinces of Nova Scotia, New Brunswick, British Columbia, Prince Edward Island, and Newfoundland and Labrador, and in the Yukon Territory and Northwest Territories. The assessment concluded that this proposal will not have any adverse impacts on the rights, or self-government provisions of Modern Treaty Partners.

DFO regulates Indigenous fishing primarily through communal licences issued under the ACFLR, the mechanism by which communal fishing licences are issued to an Indigenous organization to authorize (among other things) the carrying out of fishing for food, social and ceremonial (FSC) purposes. The gear identification requirements in the FGR do not apply to licences issued under the ACFLR; however, the ACFLR authorize the Minister to impose conditions of licence related to gear identification. The amendments will therefore have no impact on these licences. Indigenous fish harvesters who hold commercial fishing licences pursuant to regulations other than the ACFLR will be regulated in the same manner as other non-Indigenous licence holders.

Instrument choice

A regulatory amendment to permit additional flexibility through the use of fishing licence conditions for the purposes of reducing marine mammal entanglement was deemed the most appropriate instrument that would minimize the need for future regulatory amendments. The baseline scenario of no action was not considered an appropriate option.

While policy options were considered, the use of voluntary guidelines may not achieve these desired outcomes. Similarly, amending the regulations to include specific fisheries or fishing areas where single-endline gear identification could be utilized would not afford the necessary flexibility to respond to the unpredictable migratory and habitat use patterns of marine mammals, including the NARW, that have been observed in recent years. A repeal of the regulatory section imposing gear identification requirements was contemplated. However this was deemed unsuitable because it would leave some fisheries with no gear identification requirements.

Regulatory amendments to the FGR to permit variation orders for fishing equipment and gear are required in order to align with the legislative changes that were made to the Act in 2019. Therefore, the baseline scenario of no action was not feasible in this case.

Regulatory analysis

Benefits and costs

The amendments to the FGR, and consequential amendments to the Pacific Fishery Regulations and the Yukon Territory Fishery Regulations will have no cost implications. Their purpose is to introduce flexibility in conditions of licence to the two-endline gear identification requirement and permit the issuance of variation orders for fishing gear and equipment. That flexibility is anticipated to be operationalized over time as appropriate.

The amendments will make DFO more agile and responsive to NARW and other marine mammal sightings and interactions and be better prepared for ongoing U.S. MMPA comparability assessments. This will ensure that Canadian fish harvesters will have continued access to the critical U.S. market.

Small business lens

The small business lens does not apply to these amendments as this regulatory proposal will not result in increased compliance or administrative costs on small business.

One-for-one rule

The one-for-one rule does not apply to these amendments as this regulatory proposal is not expected to impact administrative costs incurred by industry. Licence conditions and variation orders are already issued to fishers through long-standing processes and procedures, which will not change as a result of the regulatory amendments.

Regulatory cooperation and alignment

The proposal is not related to a work plan or commitment under a formal regulatory cooperation forum; however, it is commensurate with regulatory efforts in the U.S. to reduce marine mammal bycatch in commercial fisheries through a reduction in vertical lines. The proposal is also an important fisheries management measure to assist Canada in meeting the ongoing import requirements under the U.S. MMPA.

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.

Gender-based analysis plus

No gender-based analysis plus (GBA+) impacts have been identified for this proposal.

Implementation, compliance and enforcement

Implementation

While it is not anticipated that these new fisheries management measures will be implemented widely immediately upon coming into force; DFO will have the option to permit the use of innovative technologies for those fish harvesters that are ready to implement. The changes are intended to provide for flexibility in the application of conservation measures to be applied as appropriate in specific fisheries following the identification of a threat to vulnerable species and appropriate scientific assessment and consultation. Consequently, implementation of these measures would be on a fishery-by-fishery basis, and only as prescribed by the fishing licence condition or regulatory variation order. These in turn will be established on a risk basis when and where appropriate, after consultations with affected parties have taken place.

Education and outreach efforts would be made though existing commercial fishing harvesters’ advisory meetings to ensure that stakeholders and rights holders are made aware of the regulatory changes and how this could impact them.

Compliance and enforcement

Compliance and enforcement activities will be managed through existing commercial and recreational monitoring processes by fishery officers within DFO’s Conservation and Protection Branch.

If enforcement action is warranted, fishery officers would use established departmental approaches and procedures conferred under the Act to investigate potential violations. Any contravention of the regulations is a prosecutable offence under the Act and may result in court-imposed penalties, or a suspension or cancellation of the licence, depending on the violation. Section 78 of the Act outlines penalties for offences.

Contact

Andrea Morden
Manager, Integrated Resource Management
Fisheries and Oceans Canada
Email: Andrea.Morden@dfo-mpo.gc.ca