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Guidelines on International Regulatory Obligations and Cooperation (view source)
Revision as of 14:06, 5 August 2021
, 14:06, 5 August 2021no edit summary
=== Compliance With International Obligations ===
=== Compliance With International Obligations ===
This section of the CDSR refers to obligations that are not discretionary and are legally binding on the Government of Canada. The CDSR lists a number of requirements relating to compliance with international obligations and identifies which departments and agencies can best provide advice on them (see Appendix B).<blockquote>Departments and agencies are to respect Canada's international obligations in such areas as human rights, health, safety, security, international trade, and the environment. They must also implement provisions related to these obligations in all stages of regulatory activity.</blockquote>
This section of the CDSR refers to obligations that are not discretionary and are legally binding on the Government of Canada. The CDSR lists a number of requirements relating to compliance with international obligations and identifies which departments and agencies can best provide advice on them (see Appendix B).<blockquote>Departments and agencies are to respect Canada's international obligations in such areas as human rights, health, safety, security, international trade, and the environment. They must also implement provisions related to these obligations in all stages of regulatory activity.{{align|right|CDSR, page 6}}</blockquote>Canada's trade obligations do not prevent Canada from regulating products and services for the protection of human health or safety, the environment, animal and plant life or health, prevention of deceptive practices, and national security. However, Canada is obligated to regulate in these areas in a way that does not arbitrarily or unjustifiably discriminate against other jurisdictions and that does not restrict trade more than necessary.
For instance, under the World Trade Organization Technical Barriers to Trade Agreement (WTO TBT),<ref>See http://www.wto.org/english/docs_e/legal_e/17-tbt_e.htm.</ref> Canada is obligated to base technical regulations and conformity assessment procedures on available international standards where they would achieve the intended regulatory outcomes. Departments and agencies have the primary accountability for taking these obligations into account in the design and implementation of regulations within their areas of accountability.
In meeting trade and other international obligations, it is essential to know which department has responsibility for oversight of a given international agreement (see the Tools for a listing of agreements, and responsible departments and agencies) and to consult with that department if a regulatory proposal may impact this agreement.
Foreign Affairs and International Trade Canada has oversight responsibility for all of Canada's international agreements. It is also often the lead department in implementing obligations related to these agreements. However, other departments and agencies can also have delegated or lead responsibility for international agreements.<ref>See the ''Management Framework for International Trade Litigation'' for clarification of the departmental and agency roles and responsibilities in relation to initiating, responding to, and funding trade litigation and to ensure that ministers are informed of the trade litigation risks associated with new or revised policies, programs, and initiatives, including new or revised trade agreements.</ref>
So that departments know what Canada's international obligations are, and which department or agency has the lead, the CDSR requires the following:<blockquote>To ensure the compliance of regulatory proposals, departments and agencies should seek the advice and assistance of:
* the Legal Bureau of Foreign Affairs and International Trade Canada-the Legal Bureau is responsible for the negotiation, creation, and interpretation of Canada's international legal obligations and provides advice concerning the interpretation and application of such obligations for regulation;
* Foreign Affairs and International Trade Canada, which is responsible for coordinating the implementation of Canada's international trade obligations, including the implementation of the World Trade Organization (WTO) Agreement and the North American Free Trade Agreement (NAFTA);
* the Department of Justice Canada, with its specialized sections, and its departmental legal services units that are responsible for advising departments and agencies on legal matters, including consistency of regulatory proposals with Canada's international obligations; and
* the Trade Law Bureau of Foreign Affairs and International Trade Canada and the Department of Justice Canada, which provides advice on Canada's international trade obligations.{{align|right|CDSR, page 6-7}}
</blockquote>To obtain further clarification, departments and agencies should consider consulting other divisions within the Legal Bureau of Foreign Affairs and International Trade Canada as appropriate, as well as the department's Technical Barriers and Regulations Division. Foreign Affairs and International Trade Canada is responsible for coordinating the implementation of Canada's international trade obligations, including the implementation of the WTO TBT Agreement and NAFTA.
In meeting Canada's TBT obligations on international standards development, mutual recognition of testing and certification, and conformity assessment, departments and agencies should seek guidance from the Standards Council of Canada, which is charged with implementing the Government of Canada's Canadian Standards Strategy.
Departments and agencies are expected to demonstrate in regulatory impact analysis statements, when relevant, that their proposals do in fact meet Canada's international trade and other obligations.
==== International cooperation ====
The CDSR also introduces a broad set of requirements covering IRC activities throughout the regulatory life cycle. These can be broken down into three areas, each of which will be covered below.<blockquote>Departments and agencies are to take advantage of opportunities for cooperation, either bilaterally or through multilateral fora, by:
* reviewing and influencing international best practices, sharing knowledge, adopting or contributing to the development and updating of international standards and conformity assessment procedures, and developing and pursuing compatible approaches with international counterparts;
* limiting the number of specific Canadian regulatory requirements or approaches to instances when they are warranted by specific Canadian circumstances and when they result over time in the greatest overall benefit to Canadians; and
* identifying the rationale for their approach, particularly when specific Canadian requirements are proposed.{{align|right|CDSR, page 8}}
</blockquote>
==== International cooperation activities ====
This first requirement listed in the CDSR under "International cooperation" captures a wide array of possible activities. To meet this requirement, departments and agencies are expected to do the following:
* Consider opportunities for IRC at every stage in the life cycle of regulation-development, implementation, evaluation, and review. This includes consulting, selecting, designing, and assessing regulatory responses, the implementation of regulatory programs, performance measurement, evaluation, and review of regulatory frameworks.
* Demonstrate how regulations contribute to both high standards of environmental, health, and citizen protection and building a strong and competitive economy, while minimizing adverse impacts on trade.
* Identify regulations, standards, and decision-making processes that produce similar results, with a view to moving towards joint conformity assessment and review processes, especially with countries that are major markets for related goods and services.
* Engage stakeholders when developing IRC approaches and explain to interested and affected parties why cooperating with other governments or adopting international standards can benefit Canadians. The ''Guidelines for Effective Regulatory Consultations'' provides further guidance in this regard.
* Systematically discuss proposed regulatory approaches with key international counterparts at an early stage in the regulatory life cycle to prevent unnecessary differences and promote compatibility with approaches that will meet Canada's policy objectives.
* Maintain Canada's long-standing involvement and influence in, and commitment to, international standard-setting bodies.
* Consider recognizing equivalency where the regulations, standards or tests, inspections, and certifications of other countries provide the same level of protection as Canadian health and safety standards.
* Be proactive in monitoring regulatory developments in the national systems of our key trading partners (e.g. NAFTA countries, the European Union, and emerging markets) involved in regulation or standard setting to assess how other jurisdictions are using regulatory instruments to address a similar issue.
* Select the appropriate form of IRC prior to selecting a course of action (e.g. joint technical or working groups, joint research, common procedures, and enforcement policies; see the Tools for more examples).
* Consider what new institutional objectives, roles, duties, and mechanisms may be required to implement and maintain regulatory cooperation, and what short-, medium-, and long-term benefits are expected.
* Assess the risks and benefits of setting a precedent if Canada were the first country to establish a regulatory standard or framework.
* Actively consider IRC in the ongoing management of regulatory programs, e.g. when developing or renewing compliance and enforcement policies, technical guidelines, and procedures that are put in place to implement regulations.
In demonstrating compliance with the CDSR, departments and agencies are expected to track their IRC activities, explain how these demonstrate proactive engagement as described in this section, and explain the relationship of the activities to either proposed or existing regulatory requirements.
==== Limiting specific Canadian requirements ====
In meeting the second requirement listed in the CDSR under "International cooperation," departments and agencies are expected to use international standards or guidelines (e.g. those of NAFTA, the European Union, or other international standards), unless they would be an ineffective or inappropriate means of achieving Canada's policy objectives and required levels of protection.
When using international standards or guidelines, departments and agencies must respect their legal obligations under the ''Official Languages Act''.
In addition, they should:
* actively pursue approaches that are compatible with those of our key international counterparts in order to prevent and reduce unnecessary regulatory differences and improve the timeliness and predictability of the regulatory process (e.g. through joint or parallel reviews);
* adopt a unique approach only when the approach of NAFTA countries, the European Union, international organizations, or another relevant counterpart does not meet Canadian policy objectives and required levels of protection; and
* even in cases where valid objectives have led to unique Canadian regulations, continue to pursue forms of regulatory cooperation over the long term in order to reduce the impact of regulatory differences and move towards greater compatibility.
When relevant, departments and agencies are expected to demonstrate that regulatory proposals have limited specific Canadian requirements and explain how the use of international standards achieves the desired regulatory outcomes in the regulatory impact analysis statement.
==== Providing a rationale for specific Canadian requirements ====
The third aspect listed in the CDSR under "International cooperation" relates to the analysis underpinning decisions to develop specific Canadian regulations. In meeting this requirement, the following questions should be answered at an early stage in the regulatory life cycle:
* Do relevant international standards exist or is their completion imminent? If so, would such international standards be an effective and appropriate means for achieving Canada's stated policy objectives? If this is the case, then such international standards should be used as a basis for domestic regulation. If not, has the rationale been fully and transparently documented?<ref>See the World Trade Organization Technical Barriers to Trade Agreement, Article 2.4.</ref>
* Is the proposed regulation compatible with existing regulations of Canada's NAFTA partners? If not, are there practical ways to promote greater compatibility without compromising the achievement of Canada's policy objective? Would the different approach used by our NAFTA partners be equally effective and appropriate in the Canadian context?<ref>See the North American Free Trade Agreement, Article 906.</ref>
* Does the proposed regulation create an unnecessary obstacle to trade? Is the policy objective underlying the proposed regulation legitimate in the context of trade obligations? Is the proposed regulation rationally connected to the achievement of a legitimate policy objective in the context of trade obligations? Are there less trade-restrictive alternatives that would equally achieve the legitimate policy objective? Is there sufficient documentation to support the conclusions and analysis of each of these steps?
* Does the proposed regulation discriminate against imported products or services either on its face or in its effect? If so, is this discrimination justified under applicable exemptions from trade obligations?
* Is the proposed regulation a legitimate exercise of governmental regulatory power? Could it constitute expropriation?<ref>Canada's international trade and investment treaties typically contain a provision prohibiting the nationalization or expropriation of an investment of an investor from another party to that agreement, except where certain conditions have been met, including the payment of compensation at fair market value. Expropriation can be either direct or indirect. Indirect expropriation typically involves such a substantial interference with the investment as to support a conclusion that the investment has been taken from the investor. It is Canada's position, accepted by numerous international tribunals, that non-discriminatory regulations designed and applied to protect legitimate public welfare obligations, such as health, safety, and the environment, do not constitute indirect expropriation but are legitimate exercises of governmental "police powers." However, given that expropriation can be very fact-specific, in situations where a proposed regulation has the potential to substantially interfere with the operations of an investment in Canada, the regulatory body proposing such a regulation should seek legal advice from the Trade Law Bureau to ensure compliance with Canada's international obligations.</ref>
* Does the regulation comply with other international obligations, such as those found in environmental treaties?
* If the proposed regulatory approach differs from international standards or the approaches of key international counterparts, how is it different and why are the specific Canadian requirements necessary? How does this approach provide greater overall benefits to Canadians?
* Where proposed regulations may have a significant effect on trade, have the appropriate international bodies been notified in accordance with the notification obligations set out in Canada's trade agreements?
* Are resources and a strategy in place to reduce the impact of regulatory differences on regulated parties in the implementation of the regulation?
When regulatory proposals contain specific Canadian requirements, departments and agencies are expected to demonstrate why these are needed in the regulatory impact analysis statement.
=== Measuring, Evaluating, and Reviewing Regulation ===
<blockquote>Departments and agencies are also responsible for ensuring that regulation continually meets its initial policy objectives and for renewing regulatory frameworks on an ongoing basis.{{align|right|CDSR, page 10}}</blockquote>Requirements for performance measurement apply to the full regulatory life cycle; attention should be paid therefore to performance measurement of IRC activities. Often IRC activities aim at achieving long-term objectives and expend significant resources to produce measurable outcomes.
The evaluation of regulatory programs is required according to the time frames and cycle established in the Treasury Board ''Policy on Evaluation'' to demonstrate results for Canadians (see the CDSR, 4.6 "Measuring, Evaluating, and Reviewing Regulation"). Further guidance on measuring the performance of IRC strategies is provided in the Tools and the publication ''Implementing'' the Cabinet Directive on Streamlining Regulation: ''Performance Measurement, A Fact Sheet''.
Evaluations of regulatory programs are expected to address the elements of the CDSR on international obligations and IRC when relevant. In particular, when regulatory programs contain specific Canadian requirements instead of using international standards, evaluations are expected to address whether these remain relevant and cost-effective.
== 4. Enquiries ==
Please send any questions about these guidelines to:
Treasury Board of Canada Secretariat-Public Enquiries
Telephone: 1-877-636-0656
Email: [mailto:publicenquiries-demandesderenseignement@tbs-sct.gc.ca publicenquiries-demandesderenseignement@tbs-sct.gc.ca]
Website: [https://www.canada.ca/content/canadasite/en/treasury-board-secretariat/corporate/organization.html http://www.regulation.gc.ca]