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Guide to the Federal Regulatory Development Process (view source)

Revision as of 12:49, 28 July 2021

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Fax: 613-943-5071
 
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The JUS Legislative Counsel performs the same legal examination function at this stage as during the pre-publication stage (see Step 4).
 
The JUS Legislative Counsel performs the same legal examination function at this stage as during the pre-publication stage (see Step 4).
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<blockquote style="background-color: lightgrey; border: solid thin grey;">
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'''Is a Second Pre-Publication Required?'''
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There may be circumstances where a second pre-publication of a regulatory proposal is warranted.
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If substantive changes are made to the regulation after prepublication, a second round of pre-publication ensures that stakeholders are aware of the extent of the changes and have an opportunity to comment. It is highly advisable to discuss this with your TBS-RAS analyst.
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A proposed regulation may need to be pre-published a second time if a period of 18 months or more has passed since the initial prepublication. This informs Canadians that, despite the delay, the regulation will proceed. An explanation for the delay should be included in the revised RIAS.
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If there is a change in government or a ministerial shuffle, it may also be necessary to confirm with the recommending minister and the Privy Council Office as to whether a second pre-publication is warranted.
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In all of the above cases, the TBS-RAS analyst will advise Treasury Board ministers if a second pre-publication is deemed necessary and why.</blockquote>
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==== Step 10: Final Regulatory Submission Goes to PCO-OIC ====
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Once the final regulatory proposal has been approved by the responsible minister(s), the documents identified in the checklist below should be sent to the Assistant Clerk of the Privy Council. Unless specified otherwise, all documents are required in both official languages and must be prepared as separate versions rather than in a side-by-side format.
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PCO-OIC will only accept documents that bear the correct signatures and have a stamped regulation. PCO-OIC will forward a copy of the regulatory proposal to TBS-RAS.
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{| class="wikitable"
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|+Checklist for final publication in Part II of the Canada Gazette:
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!Document
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!Original Document(s)
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!Photocopies
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|-
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|Letter of Transmittal
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|Original
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|4
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|-
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|Minister's Recommendation to the GIC
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|Original, signed and dated, printed on the minister's departmental stationery
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|4
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|-
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|Order in Council
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|One stamped original–JUS to provide PCO with an electronic version of the document(s)
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|6
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|-
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|Regulations
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|One stamped original–JUS to provide PCO with an electronic version of the document(s)
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|10
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|-
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|Regulatory Impact Analysis Statement (RIAS)
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|Original (which must include the cover page signed by the minister) and electronic version of the document
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|5
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|-
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|Supplementary Note (if applicable)
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|Original and electronic version of the document
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|4
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|-
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|Communications Plan
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|Original and electronic version of the document
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|4
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|-
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|Request for Insertion in the Canada Gazette
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|Original
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|None
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|-
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|CD or Diskette
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|One CD, diskette, or USB key containing electronic versions of documents and artwork
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|N/A
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|}
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==== Step 11: Making of the Regulation by the Governor in Council ====
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The GIC is the Governor General of Canada acting on the advice of Cabinet. Since December 2003, advice to the Governor General on behalf of the Queen's Privy Council has been provided by the Treasury Board.
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Similar to proposals seeking pre-publication, TBS-RAS briefs Treasury Board ministers on submissions seeking final approval. The ministers will consider the results of pre-publication along with other information in the regulatory submission and will decide whether to recommend that the Governor General make the regulations as presented in their final form.
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If the Treasury Board does not agree to recommend the making of a regulation, it may do the following:
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* Request a second pre-publication;
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* Send the item to Cabinet or one of its other committees for consideration;
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* Refer the matter back to the recommending minister for further consideration; and
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* Refuse to approve the submission.
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Again at this step, you may be asked to have an experienced and knowledgeable official available (preferably at the ADM level but no lower than the director level) to answer questions or provide additional information during the Treasury Board meeting. TBS-RAS will advise when this is necessary, and TBS-RAS will inform the identified official of the time and place of the meeting.
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A regulation is "made" when the Governor General signs the Order in Council attached to the regulation. This usually happens shortly after the Treasury Board meeting.
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==== Step 12: Registering, Coming into Force, Publishing in Canada Gazette, Part II, and Distributing Regulations ====
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===== Registration =====
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Section 5 of the [http://laws-lois.justice.gc.ca/eng/acts/S-22/page-1.html Statutory Instruments Act] requires that a regulation be transmitted to the Clerk for registration within seven days. In practice, registration is usually done within 48 hours of the Treasury Board meeting at which the regulation is considered.
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To register a regulation, PCO-OIC records the title of the regulation, the title of the regulatory organization making the regulation, the legislative or other provision under which it is made, the date it is made, and the date of registration. The regulation is also assigned a number, preceded by the acronym SOR, which stands for statutory orders and regulations, or SI, which stands for statutory instruments.
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Certain classes of regulations may be exempted from registration under section 7 of the [http://laws-lois.justice.gc.ca/eng/regulations/C.R.C.,_c._1509/ Statutory Instruments Regulations]. Your JUS legislative counsel can advise you on this matter, and your TBS-RAS analyst should also be consulted.
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===== Coming into Force =====
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Regulations that must be registered generally come into force at midnight on the date of registration provided for in section 6 of the [http://laws-lois.justice.gc.ca/eng/acts/S-22/page-1.html Statutory Instruments Act] or on a day after registration that is specified in the regulations.
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However, a regulation may come into force on a day that is up to seven days before its registration (but not earlier than the day it is made) if the day of coming into force is specified in the regulation and the reasons it is not practical to come into force on registration are provided to the Clerk of the Privy Council.
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A regulation can take effect before it is made (i.e., be retroactive) only if the enabling act clearly authorizes the retroactivity and the text of the regulation specifies the date.
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In all cases, the government's decision to make a regulation must '''not''' be publicly announced until the OIC has been signed by the Governor General. However, it is possible to announce the '''intent''' to proceed with a certain course of action. Departmental communications advisors should also be consulted on any ministerial announcements related to the regulations and coordinate with PCO.
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===== Publication =====
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Section 11 of the [http://laws-lois.justice.gc.ca/eng/regulations/C.R.C.,_c._1509/ Statutory Instruments Regulations] requires that most regulations be published in the Canada Gazette, Part II, within 23 days of their registration (Part II is published every second Wednesday).PCO-OIC coordinates this process. As in the case with pre-publication, an extra edition of the Canada Gazette, Part II can be published on an exceptional basis (e.g., to enable a regulation to be published and enforced in advance of the normal publication schedule to meet an urgent need).
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Failure to publish a regulation does not make it invalid but does prevent the punishment of contraventions of the regulation. This is because the constitutional principle of the rule of law requires that the terms of a law must be knowable.
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There are two exceptions to this general rule. A person or organization contravening an unpublished regulation can be punished if the regulation is exempt from publication or if the regulation expressly provides that it applies before it is published in the Canada Gazette, Part II. In such cases, however, it must be proved that reasonable steps were taken to bring the substance of the regulation to the notice of those likely to be affected by it.
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===== Distribution =====
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Signed copies of an Order in Council are normally mailed to the sponsoring minister and to the deputy minister or agency head within five days of signature.
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Usually, OIC, including those making regulations, are made publicly available three working days after approval by the Governor General. They can be found at the PCO Reading Room (4th Floor, 85 Sparks Street, Ottawa), where visitors can obtain a short précis list of orders and regulations, together with the name of the sponsoring department, the legal authority, and the Privy Council number, and they can be found on the Web at the [http://www.pco-bcp.gc.ca/oic-ddc.asp?lang=eng Orders in Council Database].
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=== Review by the Standing Joint Committee for the Scrutiny of Regulations ===
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The mandate of the Standing Joint Committee for the Scrutiny of Regulations is defined by the [http://laws-lois.justice.gc.ca/eng/acts/S-22/page-1.html Statutory Instruments Act], the [http://laws-lois.justice.gc.ca/eng/acts/S-20/FullText.html Legislation Revision and Consolidation Act], and the Standing Orders of the House of Commons (the permanent written rules under which the House of Commons regulates its proceedings). Pursuant to the [http://laws-lois.justice.gc.ca/eng/acts/S-22/page-1.html Statutory Instruments Act], the Committee can scrutinize any statutory instrument made on or after December 31, 1971.
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Composed of eight senators and a proportionate number of members of the House of Commons, the Committee has the same powers that other standing committees have. It may sit while the House is sitting and when the House stands adjourned; send for persons, papers and records; print papers and evidence; and delegate to a subcommittee all or any of its powers (except the power to report directly to the House). It may also table reports in the House and request government responses to them. In addition, the Committee has the power to initiate the revocation of a regulation.
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The Committee reviews all statutory instruments referred to it on the basis of [http://www2.parl.gc.ca/MarleauMontpetit/DocumentViewer.aspx?DocId=1001&Sec=Ch17&Seq=3&Lang=E#fnB29 13 criteria], such as conformity with the Canadian Charter of Rights and Freedoms or the Canadian Bill of Rights; compliance with the [http://laws-lois.justice.gc.ca/eng/acts/S-22/page-1.html Statutory Instruments Act] with respect to transmission, registration, or publication; and unusual or unexpected use of the powers conferred by the enabling legislation.
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More information on the Standing Joint Committee for the Scrutiny of Regulation is available in section 17 of the [http://www2.parl.gc.ca/MarleauMontpetit/DocumentViewer.aspx?Sec=Ch17&Seq=4&Lang=E&Print=2 House of Commons Procedure and Practice Online].
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{| class="wikitable"
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|}
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== Part 3: Critical Path Template ==
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=== Proposed Critical Path Template ===
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To assist in meeting the timelines required for the submission of regulatory proposals for pre-publication and final approval, a critical path template is provided below.<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 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/critical-path-template.rtf.doc Critical Path Template] (RTF version, 139 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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<blockquote style="background-color: lightgrey; border: solid thin grey;">
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'''HINT: Forming a team to develop and implement a PMEP has been found to be an effective practice. The team should include not only regulatory development officers, evaluators, and corporate officers but also cost-benefit analysis experts, risk assessors and managers, IM/IT personnel, Secretariat analysts, and compliance promotion, enforcement, and monitoring groups, among others.'''</blockquote>
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<blockquote style="background-color: lightgrey; border: solid thin grey;">
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'''HINT: Forming a team to develop and implement a PMEP has been found to be an effective practice. The team should include not only regulatory development officers, evaluators, and corporate officers but also cost-benefit analysis experts, risk assessors and managers, IM/IT personnel, Secretariat analysts, and compliance promotion, enforcement, and monitoring groups, among others.'''</blockquote>
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<blockquote style="background-color: lightgrey; border: solid thin grey;">
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'''HINT: Forming a team to develop and implement a PMEP has been found to be an effective practice. The team should include not only regulatory development officers, evaluators, and corporate officers but also cost-benefit analysis experts, risk assessors and managers, IM/IT personnel, Secretariat analysts, and compliance promotion, enforcement, and monitoring groups, among others.'''</blockquote>
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<blockquote style="background-color: lightgrey; border: solid thin grey;">
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'''HINT: Forming a team to develop and implement a PMEP has been found to be an effective practice. The team should include not only regulatory development officers, evaluators, and corporate officers but also cost-benefit analysis experts, risk assessors and managers, IM/IT personnel, Secretariat analysts, and compliance promotion, enforcement, and monitoring groups, among others.'''</blockquote>
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<blockquote style="background-color: lightgrey; border: solid thin grey;">
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'''HINT: Forming a team to develop and implement a PMEP has been found to be an effective practice. The team should include not only regulatory development officers, evaluators, and corporate officers but also cost-benefit analysis experts, risk assessors and managers, IM/IT personnel, Secretariat analysts, and compliance promotion, enforcement, and monitoring groups, among others.'''</blockquote>
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