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Guide to the Federal Regulatory Development Process (view source)

Revision as of 13:12, 28 July 2021

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Regulatory submissions do not contain an explanatory note. Explanatory notes are included only with instruments that are not subject to the government's policy on the pre-publication of draft regulations. This includes OICs that bring legislation into force. For more information, consult the Governor in Council Process Guide, available from PCO-OIC.
 
Regulatory submissions do not contain an explanatory note. Explanatory notes are included only with instruments that are not subject to the government's policy on the pre-publication of draft regulations. This includes OICs that bring legislation into force. For more information, consult the Governor in Council Process Guide, available from PCO-OIC.
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<blockquote style="background-color: lightgrey; border: solid thin grey;">
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'''Formatting Tips for the Supplementary Note'''
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*The security classification should clearly be indicated in the top right-hand corner, together with the words "Not for Publication."
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*The information provided should be in bullet form, concise, and to the point.
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*Do not attach the Supplementary Note to any other document.
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*The Supplementary Note should be submitted on standard size (8½ in. × 11 in.) paper, in both English and. French</blockquote>
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<blockquote style="background-color: lightgrey; border: solid thin grey;">'''Download'''
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If the following document is not accessible to you, please contact [mailto:info@tbs-sct.gc.ca info@tbs-sct.gc.ca] for assistance.
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*[https://www.canada.ca/content/dam/canada/tbs-sct/migration/hgw-cgf/priorities-priorites/rtrap-parfa/guides/gfrpg-gperf/rtf/pre-publication-results-tracking-document.rtf.doc Pre-Publication Results Tracking Document] (RTF version, 116 Kb)
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To view the RTF version, use the document conversion features available in most word processing software, or use a file viewer capable of reading RTF</blockquote>
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===Letters and Templates===
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====Transmittal for Examination by the Department of Justice Canada Legislative Counsel====
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Regulatory proposals being submitted for examination in accordance with the Statutory Instruments Act should be sent to the director of the Headquarters Regulations Section or to the director of the relevant Departmental Regulations Section. A letter of transmittal signed by the departmental regulatory manager and a copy of the finalized triage statement must accompany the regulatory proposal.
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The Letter of Transmittal to the JUS Legislative Counsel (note that in the case of the Departmental Regulations Sections, such as the Transport Canada Regulations Section, the Health Canada Regulations Section, the Environment Canada Regulations Section, and the National Defence Canada Regulations Section, proposals are sent directly to those sections) must include the following:
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*The name of the proposed regulation;
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*Any deadline for stamped copies;
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*A statement indicating whether an exemption from pre-publication will be requested and, if so, an explanation of the reasons as well as the written concurrence from the TBS-RAS portfolio analyst;
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*The name of the department's RIAS contact;
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*The name and telephone number of the department's legal contact;
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*The department's file number;
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*The names of instructing officers for both the English and French versions and any relevant information, such as relevant jurisprudence, legal opinions, and correspondence exchanged with the Standing Joint Committee for the Scrutiny of Regulations; and
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*A list of federal departments and agencies that must be consulted about the proposed regulation, along with a statement of the outcome of interdepartmental consultations to date.
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The following is a sample Letter of Transmittal.<blockquote style="background-color: lightgrey; border: solid thin grey;">'''Download'''
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If the following document is not accessible to you, please contact [mailto:info@tbs-sct.gc.ca info@tbs-sct.gc.ca] for assistance.
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*[https://www.canada.ca/content/dam/canada/tbs-sct/migration/hgw-cgf/priorities-priorites/rtrap-parfa/guides/gfrpg-gperf/rtf/transmittal-for-examination-by-the-department-of-justice-canada-legislative-counsel.rtf.doc Transmittal for Examination by the Department of Justice Canada Legislative] (RTF version, 13 Kb)
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To view the RTF version, use the document conversion features available in most word processing software, or use a file viewer capable of reading RTF.</blockquote>
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====Transmittal to the Assistant Clerk of the Privy Council====
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The Letter of Transmittal to the Assistant Clerk of the Privy Council should:
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*Be dated at the time of sending and signed by an ADM (or director general if the ADM is not available) or the president, in the case of a sponsoring agency;
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*State the subject matter, list the contents of the package, provide a short explanation of the submission, and indicate whether it is being submitted for publication in the Canada Gazette, Part I or Part II;
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*Specify any special requests (such as a statutory deadline, an upcoming meeting for which the submission is important, if there are multiple items, in what order they should be registered, communications considerations, etc.) related to the timing of approval by the GIC;
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*Indicate whether coming into force of the regulation is anticipated prior to GIC approval;
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*State when tabling of the regulation will take place (if tabling is required and there is a statutory deadline);
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*State whether the submission has financial implications and requires Treasury Board (Part A) approval or whether approval has already been received; and
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*Indicate the name, title, and telephone number of the official who can be contacted at all times during business hours for additional information about the submission.
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A sample Letter of Transmittal is provided below.<blockquote style="background-color: lightgrey; border: solid thin grey;">'''Download'''
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If the following document is not accessible to you, please contact [mailto:info@tbs-sct.gc.ca info@tbs-sct.gc.ca] for assistance.
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*[https://www.canada.ca/content/dam/canada/tbs-sct/migration/hgw-cgf/priorities-priorites/rtrap-parfa/guides/gfrpg-gperf/rtf/transmittal-to-the-assistant-clerk-of-the-privy-council.rtf.doc Transmittal to the Assistant Clerk of the Privy Council] (RTF version, 12 Kb)
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To view the RTF version, use the document conversion features available in most word processing software, or use a file viewer capable of reading RTF.</blockquote>'''Transmittal for Tabling in the House of Commons'''<blockquote style="background-color: lightgrey; border: solid thin grey;">
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'''Download'''
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If the following document is not accessible to you, please contact [mailto:info@tbs-sct.gc.ca info@tbs-sct.gc.ca] for assistance.
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*[https://www.canada.ca/content/dam/canada/tbs-sct/migration/hgw-cgf/priorities-priorites/rtrap-parfa/guides/gfrpg-gperf/rtf/transmittal-for-tabling-in-the-house-of-commons.rtf.doc Transmittal for Tabling in the House of Commons] (RTF version, 12 Kb)
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To view the RTF version, use the document conversion features available in most word processing software, or use a file viewer capable of reading RTF.</blockquote>'''Transmittal for Tabling in the Senate'''<blockquote style="background-color: lightgrey; border: solid thin grey;">
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'''Download'''
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If the following document is not accessible to you, please contact [mailto:info@tbs-sct.gc.ca info@tbs-sct.gc.ca] for assistance.
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*[https://www.canada.ca/content/dam/canada/tbs-sct/migration/hgw-cgf/priorities-priorites/rtrap-parfa/guides/gfrpg-gperf/rtf/transmittal-for-tabling-in-the-senate.rtf.doc Transmittal for Tabling in the Senate] (RTF version, 12 Kb)
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To view the RTF version, use the document conversion features available in most word processing software, or use a file viewer capable of reading RTF.</blockquote>
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===Notice of Pre-Publication===
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The Notice of Pre-Publication is the text published in the Canada Gazette, Part I, formally announcing the regulatory organization's intent to regulate. It provides the name of the proposed regulation (or the regulation to be amended) and specifies the number of days during which interested parties may comment. (The Notice of Pre-Publication is followed in the Canada Gazette, Part I, by the text of the proposed regulation and preceded by the RIAS.)
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The following are examples of Notices of Pre-Publication for the Canada Gazette, Part I. For convenience, the English and French versions are shown side by side; however, when submitting actual documents, separate versions are required (one language per page).
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==Notice of Pre-Publication==
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===New Regulations or Amendment of an Existing Regulation (Made by Governor in Council)===
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DEPARTMENT OF (insert name of Department)
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ACT (insert name of Act)
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Notice is hereby given that the Governor in Council, pursuant to section (insert section) of the (insert name of Act), proposes to make the annexed (insert name of Regulations).
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Interested persons may make representations with respect to the proposed Regulations within (30, 60, etc.) days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of this notice and be addressed to (name and address of the person).
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{{align|right|Signature}}
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{{align|right|Assistant Clerk of the Privy Council}}
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=== New Regulations or Amendment of a Regulation (Approved by Governor in Council), where Pre-Publication Is Required by Statute ===
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DEPARTMENT OF (insert name of Department)
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ACT (insert name of Act)
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Notice is hereby given, pursuant to subsection (insert section) of the (insert name of Act), that the (department or agency), pursuant to section (insert section) of that Act, proposes to make the annexed (insert name of Regulations).
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Interested persons may make representations with respect to the proposed Regulations within (30, 60, etc.) days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of this notice and be addressed to (name, address, telephone, fax, email of the person).{{align|right|Signature}}
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{{align|right|Assistant Clerk of the Privy Council}}
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=== The Communications Plan ===
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All regulatory proposals other than miscellaneous amendment regulations must be accompanied by a communications plan that indicates the following:
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* The public environment analysis;
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* The target audience(s) for communication initiatives and anticipated reactions;
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* The key messages and storyline;
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* The strategy and tools that will be used to disseminate information;
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* The proposed budget and evaluation methods; and
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* The risks involved.
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This plan demonstrates to Treasury Board ministers that communications have been given consideration, even if the plan is only to publish in the Canada Gazette.
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When the strategy involves a minister's announcement, or if the regulatory proposal has high communications risks or is related to a key government priority, PCO-Communications must be contacted by the department or agency (usually the departmental communications section) to review the communications plan.
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== Part 5: Treasury Board Submissions and Governor in Council Proposals ==
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=== When Do Regulations Need a Treasury Board Submission? ===
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A regulatory proposal must be accompanied by a Treasury Board submission when it has resource management implications. Typical examples include seeking authority to do the following:
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* Allocate resources previously approved by Cabinet or included in a federal budget;
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* Authorize or amend terms and conditions of grant or contribution programs;
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* Carry out a project or initiative that would exceed the cost limit of a minister's delegated authority;
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* Enter into a contract above or outside a federal organization's or minister's authority; and
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* Obtain an exemption from a Treasury Board policy.
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A Treasury Board submission is also required if the proposed regulation is subject to the User Fees Act or impacts the Consolidated Revenue Fund.
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Departments and agencies should consult the TBS Program Sectors at the earliest possible opportunity to determine whether a given initiative requires a Treasury Board submission. TBS may recommend that the sponsoring organization prepare a submission even if there is no explicit requirement to do so.
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Expectations about the quality of submissions are addressed in the Management Accountability Framework. Detailed information on how to prepare a Treasury Board submission can be found in the [http://www.tbs-sct.gc.ca/pubs_pol/opepubs/TBM_162/gptbs-gppct-eng.asp Guide to Preparing Treasury Board Submissions].
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The Treasury Board submission must be made in advance of the minister seeking approval for pre-publication of the regulatory proposal, but this may occur at the same Treasury Board meeting.
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=== Process for Treasury Board Submissions ===
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When a regulatory submission must be accompanied by a Treasury Board submission, the latter must be brought forward at the pre-publication stage. Both submissions should be forwarded at the same time to:
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Submission and Cabinet Document Centre
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Treasury Board of Canada Secretariat
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8th Floor, East Tower
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140 O'Connor Street
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Ottawa ON  K1A 0R5
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Treasury Board submissions are Cabinet confidences and must be delivered by a departmental official or secure messenger.
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The Submission and Cabinet Document Centre will forward a copy of the submissions to the Assistant Clerk of the Privy Council. Stamped copies and original documents for the regulatory proposal should '''not''' be stapled or hole-punched.
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Once pre-publication is completed, the recommendation of the Treasury Board is not required for the final approval stage unless substantive changes that have financial or program impact have been made to the regulation.
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=== Treasury Board Regulations Versus Governor in Council Regulations ===
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The statutory authority (enabling act) pursuant to which a regulation is made determines the process to be used:
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* When the enabling act states that the Treasury Board may make regulations, the sponsoring minister must present the regulatory submission to the Treasury Board for decisions on both pre-publication and final publication.
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* When the enabling act states that the GIC may make regulations, the sponsoring minister must present the regulatory submission to the Treasury Board for a decision on pre-publication and, subsequently, for recommendation to the Governor General for final approval.
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* When the enabling act states that the GIC may make regulations "on the recommendation of the Treasury Board," the sponsoring minister must present the regulatory submission to both the Treasury Board and the GIC for approval. The regulatory organization must also prepare a separate submission for the Treasury Board.
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== Part 6: Miscellaneous Amendments Regulations ==
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=== Description ===
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Miscellaneous amendments regulations (MARs) are used to quickly correct errors, omissions, and inconsistencies in regulations. This process can be used at any time.
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The MAR process is faster and less costly than other regulatory approval mechanisms; it has the following advantages:
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* It uses a low-impact RIAS, which is a simplified RIAS.
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* No communications plan is required.
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* It is expected that there will be a recommendation for exemption from pre-publication in Part I of the Canada Gazette (except where required by statute).
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Regulatory organizations must ensure that they obtain concurrence from TBS-RAS before sending the draft of the drafting instructions to the relevant regulations section of JUS. To maximize efficiency, MARs should be submitted in an omnibus package.
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When a regulation-making authority intends to amend several instruments at the same time, and some of the instruments are statutory instruments (SI), and others are statutory orders and regulations (SOR), two separate instruments are required: one to amend the SIs and the other to amend the SORs.
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=== Criteria ===
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MARs can be used to implement corrections that have been triaged as having no impact. These corrections are restricted to the following:
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* Errors in format, syntax, spelling, and punctuation;
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* Typographical errors, archaisms, anomalies, and numbering errors;
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* Inconsistencies between the English and French versions, as long as these inconsistencies are non-substantive;
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* Obsolete regulations (i.e., regulations that are outdated but still legally enforceable); and
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* Spent regulations (i.e., regulations that have no further application or effect).
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MARs can also be used to implement regulatory amendments requested by the Standing Joint Committee for the Scrutiny of Regulations that have been triaged as having no impact or a low impact. In the event that a change requested by the Standing Joint Committee for the Scrutiny of Regulations is triaged as having medium or high impact because, for example, it affects Canadians in a significant manner and some form of consultation may be needed, departments are to consult with TBS-RAS to assess whether the MAR process is appropriate.
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=== Process ===
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Ensure receipt of concurrence from TBS-RAS before proceeding with MARs. Unless otherwise indicated (e.g., statutory requirements), the following requirements apply to MARs:
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* The low-impact RIAS template must be completed.
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* The minister or agency head does not have to sign the RIAS.
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* No communications plan is required.
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* No pre-publication is necessary.
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* The words "Miscellaneous Amendments Regulation" must appear in the title of the MAR.
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=== Examination of the Regulations and the Regulatory Impact Analysis Statement ===
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The examination of proposed regulations by the JUS drafters and review of the RIAS by TBS-RAS follow the same steps as regulatory amendments exempt from pre-publication (in other words, they are reviewed only once).
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When the MAR is making changes requested by the Standing Joint Committee, a copy of all correspondence between the regulating organization and the Committee should be attached to the regulatory proposal.
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=== Quality Control of Documentation by the Orders in Council Division of the Privy Council Office and Preparation of Briefing Note by the Treasury Board of Canada Secretariat's Regulatory Affairs Sector ===
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Once ministerial approval is received, the documents listed in the table below are sent to the Assistant Clerk of the Privy Council. The signature of the ADM is not required; another departmental official may sign the letter, which must refer specifically to "miscellaneous amendments regulations."
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MARs are generally exempted from pre-publication. However, if pre-publication is required by statute, you must send the documentation listed in the checklist below to PCO-OIC.
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=== Ministerial Regulations ===
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When MARs are made in relation to ministerial regulations, the amendments are the responsibility of the minister administering the enabling act. Once ministerial approval is obtained, the regulations are "made" and can be sent to PCO-OIC for publication in the Canada Gazette, Part II. The Letter of Transmittal must refer to "miscellaneous amendments regulations" and must include a contact name, title, and telephone number.
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== Appendix – Forward Plan ==
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<blockquote style="background-color: lightgrey; border: solid thin grey;">'''Download'''
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If the following document is not accessible to you, please contact [mailto:info@tbs-sct.gc.ca info@tbs-sct.gc.ca] for assistance.
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* [https://www.canada.ca/content/dam/canada/tbs-sct/migration/hgw-cgf/priorities-priorites/rtrap-parfa/guides/gfrpg-gperf/rtf/forward-plan.rtf.doc Forward Plan] (RTF version, 83 Kb)
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To view the RTF version, use the document conversion features available in most word processing software, or use a file viewer capable of reading RTF.</blockquote>
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== Acronyms ==
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; CDRM
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: [[Cabinet Directive on Regulatory Management]]
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; GIC
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: Governor in Council
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; JUS
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: Department of Justice Canada
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; MAR
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: Miscellaneous amendments regulation
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; OIC
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: Order in Council
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; PCO
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: Privy Council Office
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; PCO-OIC
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: Privy Council Office, Orders in Council Division
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; PWGSC
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: Public Works and Government Services Canada
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; RIAS
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: Regulatory Impact Analysis Statement
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; TBS
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: Treasury Board of Canada Secretariat
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; TBS-RAS
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: Treasury Board of Canada Secretariat, Regulatory Affairs Sector
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== Web Addresses ==
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=== Treasury Board of Canada Secretariat–Regulatory Affairs Sector ===
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* Cabinet Directive on Streamlining Regulation
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* Assessing, Selecting, and Implementing Instruments for Government Action
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* Canadian Cost-Benefit Analysis Guide: Regulatory Proposals
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* Guidelines on International Regulatory Obligations and Cooperation
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* Guidelines for Effective Regulatory Consultation
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=== Other Web Addresses ===
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* [http://www.pco-bcp.gc.ca/index.asp?doc=legislation/table_e.htm&lang=eng&page=information&sub=publications Guide to the Making of Federal Acts and Regulations]
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* [http://www.ceaa-acee.gc.ca/default.asp?lang=En&n=B3186435-1 The Cabinet Directive on Environmental Assessment of Policy, Plan and Program Proposals]
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* [http://www.pco-bcp.gc.ca/index.asp?lang=eng&page=information&sub=publications&doc=legislation/cabdir-dircab-eng.htm Guide to Making Federal Acts and Regulations: Cabinet Directive on Law-Making]
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* [http://www.gazette.gc.ca/index-eng.html Canada Gazette]
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* [http://www.tbs-sct.gc.ca/pol/doc-eng.aspx?id=12236 Policy on Service Standards for External Fees]
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* [http://www.scienceadvice.ca/en.aspx Council of Canadian Academies]
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* [http://www.aadnc-aandc.gc.ca/eng/1100100014664/1100100014675 Aboriginal Consultation and Accommodation – Interim Guidelines for Federal Officials to Fulfill the Legal Duty to Consult (February 2008)]
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* [http://www.pco-bcp.gc.ca/index.asp?lang=eng&page=secretariats&sub=oic-ddc&doc=oic-ddc-eng.htm Privy Council Office–Orders in Council Division]
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* [http://www.pco-bcp.gc.ca/oic-ddc.asp?lang=eng&Page=secretariats Orders in Council Database]
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* [http://www.gazette.gc.ca/pi-ip/rfif-fddi-eng.html Request for Insertion in the Canada Gazette Form (PDF Document - 172 KB)]
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* [http://www.gazette.gc.ca/cg-gc/lm-sp-eng.html#i1 Requirements for Publication in Canada Gazette, Part I]
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* [http://www2.parl.gc.ca/CommitteeBusiness/AboutCommittees.aspx?Cmte=REGS&Language=E&Mode=1&Parl=38&Ses=1&View=Chttp://www.gazette.gc.ca/pi-ip/pi-ip-eng.html Standing Joint Committee for the Scrutiny of Regulations]
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* [http://laws-lois.justice.gc.ca/eng/acts/S-22/page-1.html Statutory Instruments Act]
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* [http://laws-lois.justice.gc.ca/eng/regulations/C.R.C.,_c._1509/ Statutory Instruments Regulations]
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* [http://www.tbs-sct.gc.ca/Pubs_pol/opepubs/TBM_162/siglist-eng.asp Treasury Board Submission Guidelines]
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* [http://www.ic.gc.ca/eic/site/oca-bc.nsf/eng/ca00963.html Voluntary Codes Guide– What is a Voluntary Code?]
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<references />
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