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Statutes of Newfoundland and Labrador 2004


Statutes of Newfoundland and Labrador 2004 Chapter 43

CHAPTER 43

AN ACT TO AMEND THE FISH INSPECTION ACT

(Assented to December 16, 2004)

Analysis

1. S.2 R&S
Definitions

2. S.3 R&S
Appointment

3. S.4 R&S
Regulations

4. S.4.1 R&S
Fees and forms

5. S.5 Amdt.
Issue of licences

6. S.6 R&S
Powers of inspectors

7. S.7 Amdt.
Appeal

8. S.9 R&S
Seizure

9. S.10 R&S
False labelling, marketing or packaging

10. Ss.10.1& 10.2 Added
10.1 Processing plan
10.2 Annual report

11. S.11 Rep.
Defective cans

12. S.11.1 Added
Ticketing

13. S.12 Amdt.
Falsification of certificates

14. S.13 R&S
Prohibition against marketing

15. S.14 R&S
General penalty

16. S.16 Added
Administrative penalty

17. S.17 Added
Review

18. Commencement

Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:


RSNL1990 cF-12
as amended

1. Section 2 of the Fish Inspection Act is repealed and the following substituted:

Definitions

2. In this Act

(a) "agency agreement" means an agreement between a licensed processor and another person which authorizes that person to buy fish or marine plants on behalf of the licensed processor;

(b) "annual report" means the report on processing operations for the preceding year required under section 10.2;

(c) "carton" includes a type of receptacle, package, wrapper or confining band used in holding, storing, packing or marketing fish or marine plants;

(d) "container" means any means by which fish or marine plants may be held and includes a vessel hold, boat pen, vehicle storage area, tote pan, fish bag and an insulated fish box;

(e) "decomposed " means having an offensive or objectionable odour, flavour, colour or textural defect associated with spoilage and for greater certainty includes dead shellfish other than dead shrimp and dead squid;

(f) "establishment" means a place where fish or marine plants are handled, processed, graded or stored, or where records relating to that handling, processing, grading or storing are kept;

(g) "fish" includes all finfish, marine invertebrates and marine mammals, whether caught or farmed, and parts, products or by-products of them;

(h) "fish landing station" means a site where fish or marine plants are off loaded for the purpose of marketing;

(i) "labelling" includes marking;

(j) "marine plants" includes Irish moss, kelp, and other marine plants, parts, products or by-products of them;

(k) "marketing" means the buying, selling, holding in possession, offering or advertising for sale of fish or marine plants;

(l) "minimum processing requirement" means the minimum processing required by the minister;

(m) "minimum production requirement" means the minimum amount of production required by the minister to be processed by a processor;

(n) "minister" means the minister appointed under the Executive Council Act to administer this Act;

(o) "person" includes a corporation and the heirs, executors, administrators or other legal representatives of a person;

(p) "processing" includes cleaning, grading, filleting, icing, packing, canning, freezing, smoking, salting, cooking, pickling, drying or preparing fish or marine plants for market in another manner;

(q) "processing plan" means the annual processing plan filed with the minister in anticipation of the processing to be undertaken by the processor for the year following, containing the information required by the regulations;

(r) "tainted" means being rancid or having an abnormal odour or flavour;

(s) "unwholesome" means having in or upon the fish or marine plants, a bacteria, toxin or other foreign substance of a public health concern, or an aesthetically offensive substance; and

(t) "vehicle" includes a vessel, boat, motor vehicle, aircraft or other means for the transportation of fish or marine plants or containers or cartons of them.

 

2. Section 3 of the Act is repealed and the following substituted:

Appointment

3. (1) There may be appointed in the manner authorized by law those inspectors, officers, clerks and other persons that are necessary for the proper administration of this Act.

(2) A person shall not obstruct, impede or refuse to admit an inspector or other person acting in execution of this Act or the regulations and a person shall not aid or abet a person in obstructing, impeding or refusing to admit an inspector or other person acting in execution of this Act or the regulations.

3. Section 4 of the Act is repealed and the following substituted:

Regulations

4. (1) The Lieutenant-Governor in Council may make regulations

(a) requiring and providing for the licensing of persons engaged in the buying, handling, storing, grading, processing, transporting or marketing of fish or marine plants;

(b) providing for the licensing of establishments used in or in connection with the buying, handling, processing, storing, grading, transportation or marketing of fish or marine plants;

(c) providing for the cancellation or suspension of licences issued under this subsection and the method by which that cancellation or suspension may be effected;

(d) which relate to the regional distribution of licences and the development and administration of the fishing industry in the province and other matters that are not directly related to fish quality;

(e) respecting the contravention of sections of this Act and regulations for which an administrative penalty may be imposed and the time and manner in which those penalties may be imposed and collected;

(f) prescribing the procedure to be followed in an appeal to the minister under this Act; and

(g) exempting persons, vehicles or establishments or a class or persons, vehicles or establishments from the application of the provisions of this Act or the regulations.

(2) The minister may make regulations

(a) prescribing grades and standards of fish or marine plants for buying or marketing;

(b) respecting the handling, processing, storing, grading, packaging, buying, labelling, transporting, marketing, inspection and detention of fish or marine plants;

(c) regarding the quality and specifications of containers and cartons, and the labelling and inspection of containers and cartons;

(d) requiring and providing for the standards and operating requirements of vehicles and the transportation of fish or marine plants;

(e) prescribing the requirements for the construction, equipment and operating standards of establishments, and of vehicles or equipment used in an establishment associated with the buying or processing of fish or marine plants;

(f) prohibiting the marketing and labelling of fish or marine plants or containers or cartons of them under grade names or standards unless all the requirements of this Act and the regulations have been complied with, and prohibiting the marketing and labelling of fish or marine plants or containers or cartons of them under a name calculated to mislead or deceive;

(g) prescribing the manner in which samples of fish or marine plants may be taken;

(h) prohibiting or restricting the marketing of fish or marine plants or cartons or containers of them unless all the requirements of this Act and the regulations have been complied with;

(i) prescribing certificates and other documents that may be issued in respect of an inspection made under this Act or the regulations;

(j) respecting fish landing stations in the province;

(k) providing for the disposition of fish or marine plants, so as to prevent them from being marketed for human consumption, where the fish or marine plants are tainted, decomposed or unwholesome and prescribing the methods, supervision and direction of the time within which the disposal is to be effected and by whom and at whose expense, including prescribing the time for disposal following inspection;

(l) requiring processors to retain certified quality control personnel, and the qualifications which shall be required of those quality control personnel;

(m) requiring a processor to disclose the shareholders of the processing operation and those with a majority interest in a processing operation;

(n) prescribing criteria to determine which licences are inactive licences;

(o) prescribing minimum production requirements;

(p) prescribing minimum processing requirements;

(q) prescribing the requirements for an annual report required to be filed under section 10.2;

(r) with respect to the licensing of grading companies;

(s) prescribing operating standards relating to the quality of fish or marine plants;

(t) prescribing the circumstances in which agency agreements may be required or approved;

(u) regarding special permits for the transfer of fish or marine plants, and the circumstances under which those permits may be given; and

(v) generally, to give effect to the purpose of this Act.

(3) The Lieutenant-Governor in Council and the minister may in addition to or instead of regulations made under subsections (1) and (2) adopt by reference and constitute as regulations the whole or part or provisions of a code adopted or standards fixed, with or without modification, and including amendments to the code or standard of an organization acceptable to the Lieutenant-Governor in Council or the minister.

(4) A certificate of the minister that a document is a copy of a code or standard referred to in subsection (3) or an extract from, a modification of, or an amendment to, a code or standard is without further proof presumptive evidence of the content of that code, standard, extract or amendment.

 

4. Section 4.1 of the Act is repealed and the following substituted:

Fees and forms

4.1 The minister may prescribe fees and establish forms for the purpose and administration of this Act.

 

5. Section 5 of the Act is amended by adding immediately after subsection (2) the following:

(3) Where a processor has been convicted of engaging in an anti-competitive act as defined in section 78 of the Competition Act (Canada), the minister may suspend or cancel that processor's licence.

(4) The minister may, in the circumstances prescribed in the regulations, issue a special permit for the transportation of fish or marine plants.

(5) Where the minister has reasonable grounds to believe that a person has violated a provision of this Act, the regulations or a condition of licence and the person has not, within a reasonable time, complied with a request of the minister to cease the violating activity, the minister may issue a stop work order and that activity shall cease.

 

6. Section 6 of the Act is repealed and the following is substituted:

Powers of inspectors

6. (1) Where it is reasonably necessary for the purpose of ensuring compliance with this Act and the regulations, an inspector, officer or other person designated by the minister may, at a reasonable time and without a warrant

(a) enter an establishment or a vehicle used for the carriage or storage of fish or marine plants and may open a container or carton which he or she believes contains fish or marine plants;

(b) require to be produced for inspection or for the purpose of obtaining copies or extracts from books, shipping bills, bills of lading or other documents or papers relating to the quality, landing, buying, processing, transportation or marketing of fish or marine plants; and

(c) take, without charge, the minimum sample of fish or marine plants required for inspection.

(2) An inspector, officer, or other person acting under subsection (1) may detain a vehicle for the purpose of performing the inspection or obtaining the sample referred to in that subsection.

(3) A sample taken under subsection (1) shall be disposed of as the minister directs.

 

7. Section 7 of the Act is amended by deleting the word "marking" and by substituting the word "labelling".

 

8. Section 9 of the Act is repealed and the following substituted:

Seizure

9. (1) Where an inspector believes on reasonable grounds that a person has contravened this Act or the regulations, the inspector may, with a warrant issued under subsection (2), seize all fish or marine plants or containers or cartons of them by means of or in relation to which he or she reasonably believes the offence was committed.

(2) A provincial court judge or justice of the peace who is satisfied by an information upon oath or affirmation that there are reasonable and probable grounds for believing that there is on the premises anything that there are reasonable grounds to believe will give evidence with respect to an offence under this Act or the regulations may issue a warrant authorizing an inspector named in the warrant to enter and seize all fish or marine plants and containers or cartons of them that are considered necessary, subject to the conditions that may be specified in the warrant.

(3) Fish or marine plants or containers or cartons of them seized under subsection (1) may be held and kept for a period of 180 days following the day of seizure unless during that period proceedings under this Act in respect of those fish or marine plants or containers or cartons of them are undertaken, in which case the fish or marine plants or containers or cartons of them may be further held and kept until the proceedings are finally concluded.

(4) Where, in the opinion of the inspector or other person having custody of the fish or marine plants or cartons or containers of them seized under this section that the seized materials will become tainted, decomposed or unwholesome during the period referred to in subsection (3), the inspector or other person shall inform the minister and the minister may direct that the seized materials be sold in a manner that he or she may determine.

(5) The proceeds of a sale referred to in subsection (4) shall be paid into the Consolidated Revenue Fund.

(6) Where fish or marine plants or containers or cartons of them are seized under this section, a person having an interest in the seized materials may apply to a judge of the Trial Division for the return of those materials, and the judge may, where

(a) he or she is satisfied that the fish or marine plants or containers or cartons of them were not seized because they were decomposed, tainted or unwholesome;

(b) he or she is satisfied that the retention of the fish or marine plants or containers or cartons of them is not necessary as evidence of the commission of an offence;

(c) he or she is satisfied as to the value of the fish or marine plants or containers or cartons of them seized; and

(d) the applicant posts a bond or other form of security in a manner and amount satisfactory to the judge,

order the return of the fish or marine plants or containers or cartons of them.

(7) Where no proceedings are taken following a seizure under this section or where proceedings are taken and the person charged is acquitted of the charge made against him or her

(a) the inspector or other person having the custody of the fish or marine plants or containers or cartons of them seized under subsection (1) shall return them to the person from whom they were seized; and

(b) where the fish or marine plants or containers or cartons of them is sold under subsection (4), the minister shall pay the proceeds of the sale to the person from whom they were seized under subsection (1).

(8) For the purpose of preserving the identity of fish or marine plants or containers or cartons of them seized under subsection (1), an inspector may place upon the fish or marine plants or container or carton a numbered tag in the form that the minister may prescribe.

(9) A person shall not remove or alter a tag placed upon fish or marine plants or containers or cartons of them under subsection (8) and shall not remove fish or marine plants or containers or cartons of them held and kept under this section.

(10) Where a person is convicted of an offence under this Act or the regulations or of a violation of a condition of licence issued under this Act or the regulations, the judge before whom he or she is convicted may, in addition to a penalty imposed under this Act

(a) order that the

(i) fish or marine plants or containers or cartons of them by means of or in relation to which the offence was committed,

(ii) costs of storage of the fish or marine plants or containers or cartons of them during the disposition of the case, and

(iii) proceeds of a sale under subsection (4),

be forfeited to the Crown to be disposed of as the minister directs or be paid into the Consolidated Revenue Fund, whichever is appropriate; or

(b) where a bond or other security has been posted under subsection (6), call upon the bond or other security and order the person posting it to pay immediately the amount of the bond or other security into the Consolidated Revenue Fund as a debt due the Crown.

 

9. Section 10 of the Act is repealed and the following substituted:

False labelling, marketing or packaging

10. A person shall not mark, label or package fish or marine plants or containers or cartons of them in a manner that is false, misleading or deceptive.

 

10. The Act is amended by adding immediately after section 10 the following:

Processing plan

10.1 (1) A processor shall submit a processing plan to the minister for his or her approval which

(a) contains the information with respect to the processing which the processor intends to undertake in that year; and

(b) is in the form required by the minister and contains the information required by the regulations.

(2) Where, after a processing plan has been approved, a processor proposes to make a significant alteration or addition to the processing he or she intends to undertake, that processor shall file with the minister an amended processing plan which meets the requirements of subsection (1) and the minister may accept it with or without changes.

(3) A processor shall process in substantial conformity with the processing plan approved under this section.

Annual report

10.2 (1) A processor shall, once in a calendar year, file with the minister an annual report on his or her processing operations for the preceding year.

(2) The annual report on processing required under subsection (1) shall be in the form required by the minister and contain the information prescribed by the regulations.

 

11. Section 11 of the Act is repealed.

 

12. The Act is amended by adding immediately after section 11 the following:

Ticketing

11.1 An inspector may commence proceedings, which may be in the form of a ticket issued in accordance with the Provincial Offences Act and regulations in respect of a violation of this Act or the regulations.

 

13. (1) Subsection 12(1) of the Act is amended by adding immediately after the word "containers" the words "or cartons".

(2) Subsection 12(2) of the Act is repealed and the following substituted:

(2) A person who violates subsection (1) is guilty of an offence and is liable on summary conviction

(a) for a first offence, to a fine of not less than $5,000 and not more than $20,000 or to imprisonment for a term of not less than one month or more than 6 months, or to both a fine and imprisonment;

(b) for a second offence, to a fine of not less than $20,000 and not more than $50,000 or to imprisonment for a term of not less than 2 months or more than 6 months, or to both a fine and imprisonment; and

(c) for a third offence, to a fine of not less than $50,000 and not more than $100,000 or to imprisonment for a term of not less than 3 months or more than 6 months, or to both a fine and imprisonment.

 

14. Section 13 of the Act is repealed and the following substituted:

Prohibition against marketing

13. (1) A person shall not market fish or marine plants intended for human consumption if the fish or marine plants are tainted, decomposed or unwholesome.

(2) A person who violates subsection (1) is guilty of an offence and is liable on summary conviction

(a) for a first offence, to a fine of not less than $5,000 and not more than $20,000 or to imprisonment for a term of not less than one month or more than 6 months, or to both a fine and imprisonment;

(b) for a second offence, to a fine of not less than $20,000 and not more than $50,000 or to imprisonment for a term of not less than 2 months or more than 6 months, or to both a fine and imprisonment; and

(c) for a third offence, to a fine of not less than $50,000 and not more than $100,000 or to imprisonment for a term of not less than 3 months or more than 6 months, or to both a fine and imprisonment.

 

15. Section 14 of the Act is repealed and the following substituted:

General penalty

14. A person who violates a provision of this Act or the regulations or a condition attached to a licence issued under this Act or the regulations for which no penalty is provided elsewhere in this Act is guilty of an offence and is liable on summary conviction

(a) for a first offence, to a fine of not less than $5,000 and not more than $20,000 or to imprisonment for a term of not less than one month or more than 6 months, or to both a fine and imprisonment;

(b) for a second offence, to a fine of not less than $20,000 and not more than $50,000 or to imprisonment for a term of not less than 2 months or more than 6 months, or to both a fine and imprisonment; and

(c) for a third offence, to a fine of not less than $50,000 and not more than $100,000 or to imprisonment for a term of not less than 3 months or more than 6 months, or to both a fine and imprisonment.

 

16. The Act is amended by adding immediately after section 15 the following:

Administrative penalty

16. (1) Where the minister is of the opinion that a person has committed, as specified by regulation, a contravention of this Act for which an administrative penalty applies, the minister or a person authorized by the minister may, in writing, notify that person that he or she is to pay to the government of the province an administrative penalty in the amount set out in the notice for each contravention.

(2) A person who pays an administrative penalty with respect to a contravention may not be ticketed under the Provincial Offences Act and regulations or charged with an offence under this Act with respect to that contravention.

(3) Where a person fails to pay an administrative penalty in accordance with a notification under subsection (1), the government of the province may recover the amount owing in respect of the penalty as a debt owed to the Crown.

(4) For the purpose of this section, an administrative penalty is a monetary penalty imposed in accordance with the regulations for a contravention of this Act.

 

17. The Act is amended by adding immediately after section 16 the following:

Review

17. The minister shall, every 5 years, perform a review of this Act and the regulations made under it, the principles upon which it is based, and consider the areas in which it may be improved and report his or her findings to the Lieutenant-Governor in Council.

Commencement

18. This Act shall come into force on April 1, 2005.

 

 

 

 

 

 

 

 

 

 

 

 

 

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