What We Heard Report – DIS-12-05

Administrative Monetary Penalties

Preamble

Discussion papers play an important role in the selection and development of the regulatory framework and regulatory program of the Canadian Nuclear Safety Commission (CNSC). They are used to solicit early public feedback on CNSC policies or approaches.

The use of discussion papers early in the regulatory process underlines the CNSC's commitment to a transparent consultation process. The CNSC analyzes and considers preliminary feedback when determining the type and nature of requirements and guidance to issue.

Introduction

In June 2012, as part of the Government of Canada's Responsible Resource Development initiative, amendments were made to the Nuclear Safety and Control Act (NSCA) to authorize the CNSC to implement an administrative monetary penalties (AMP) system to strengthen environmental protection and to increase compliance with the NSCA and its associated regulations.

The CNSC has a robust compliance and enforcement program, which includes several tools to enforce compliance when requirements are not being met. Among these tools are orders, revocation of a licence and prosecution. An AMP system will provide the CNSC with additional means for enforcement. The selection of the appropriate enforcement tool depends on factors such as the severity and risk posed by the act of non-compliance.

AMPs are issued to address violations. To implement an AMP system, the Commission must develop regulations that establish which acts of non-compliance will be designated as violations, how the penalties will be calculated and how the relevant documents will be served.

In discussion paper DIS-12-05, Administrative Monetary Penalties the CNSC set out a proposed approach for developing AMP regulations. The following summarizes the results of the CNSC's preliminary public consultation on the development of such regulations.

Consultation process

The CNSC issued this discussion paper for public comment on August 15, 2012 for a 30-day comment period. The discussion paper sought input from stakeholders and the general public on the CNSC's proposal for the AMP system as set out in the recent amendments to the NSCA. An invitation to comment on the discussion paper was posted on the CNSC's website, a notification was posted on the CNSC's Facebook page, and an information bulletin was forwarded to the CNSC's stakeholders. The notice of the consultation was also posted on the Government of Canada's Consulting with Canadians website.

On September 28, 2012, the CNSC posted the comments it received on its website and issued an invitation to provide feedback for a 15-day period. The CNSC received a total of 53 submissions from stakeholders.

This report provides a summary of the key comments received during consultation.

Summary of stakeholder comments

• In general, stakeholders expressed concern with the application of the potential AMP regulations and the possible financial impact on businesses regulated by the CNSC.
• Many noted that the consultation period for the paper was too short.
• Several concerns were received about elements of the AMP system that are prescribed in the NSCA. These are therefore beyond the scope of the proposed regulations. These concerns included:
  • that the exercise of due diligence is deemed to not be a sufficient argument for defence
  • that the time limit to issue an AMP
  • that the process for reviewing an AMP
  • that maximum and minimum penalty amounts
• There were several requests for clarification of the nature of the violations that would be subject to a fine under an AMP system and the range of penalties that would apply to those violations.
• Some respondents provided suggestions concerning the criteria that could be used when calculating the amount of an AMP. Comments indicated that aggravating factors influencing a higher penalty amount could include gross negligence or willfulness, multiple or ongoing violations, high-risk violations and a history of non-compliance.
• It was suggested that, in addition to introducing aggravating factors to increase the amount of an AMP, mitigating factors be used to reduce the amount. For example, mitigating factors that might be taken into account and lead to a lower penalty amount could include prompt notification and corrective actions, first-time offences, self-identified violations, low-risk violations, compliance agreements and compliance history.
• Several comments expressed concern that an AMP system may negatively impact businesses, and could be viewed as a barrier to industry entry and loss of competitive advantage.
• Several comments were received expressing concerns over the potential for AMPs being issued by multiple regulators for the same incident.

Next steps

The CNSC will take into consideration all input received from stakeholders in developing its AMP regulations and implementation program.

The discussion paper is the first step in the public consultation process for the CNSC's proposed AMP regulations and stakeholders will have further opportunity to comment on the draft regulations when they are pre-published in the Canada Gazette, Part I.