Regulatory Process Guide
Developing a Regulatory Proposal and Seeking its Approval

Table of Contents

Introduction

Part A: Essentials of Making Regulations

What is a Regulation? 
The Legal Framework for Regulations 
The Government of Canada Regulatory Policy 
The Regulatory Process 
The Regulatory Proposal 
Key Participants in the Regulatory Process 

Part B: The Regulatory Process: Step-By-Step

STEP 1: Conception and Development of a Regulation 
STEP 2: Departmental Drafting of a Regulation, RIAS, and Other Documents 
STEP 3: Examination by Justice – RS(J) and preliminary assessment by PCO-RAD 
STEP 4: Ministerial Approval for Pre-Publication 
STEP 5: Pre-publication Review by the Regulatory Affairs and Orders in Council Secretariat and the Treasury Board 
STEP 6: Pre-publication in the Canada Gazette, Part I, with Comment Period 
STEP 7: Departmental Preparation of Regulatory Proposal for Final Submission to TB 
STEP 8: Final Review by the RAOIC and the Treasury Board 
STEP 9: Making, Registering, Publishing in Canada Gazette, Part II, and Distributing Regulations 
STEP 10: Parliamentary Review by the Standing Joint Committee for the Scrutiny of Regulations
Checklists

Part C: Models

Regulatory Impact Analysis Statement (RIAS)
Letter of Transmittal 
Ministerial Recommendation 
Order in Council 
Resolution 
Notice of Pre-publication 
Acronyms 
References 
Web Addresses 
Other Resources 

National Library of Canada cataloguing in publication data

Introduction

This Guide to the Regulatory Process is intended for persons involved in developing Governor in Council (GiC) regulations that must be made or approved by the Treasury Board (TB). For the most part, this document assumes that a department has decided, after conducting the requisite analysis and consultations, that regulatory intervention is the best option.

For a description of the process in the approval of non-regulatory Orders in Council, please refer to the Guide for Governor in Council Submissions. The regulatory process set out in this Guide does not apply to ministerial orders and/or ministerial regulations. However, a checklist of required documents for the registration and publication of ministerial orders and regulations is provided on page 33 of this Guide.

Traditionally, TB has been the Cabinet committee who's recommendation or approval is required for regulations liable to have significant financial implications or those that, through their enabling statute, require TB approval or recommendation (Part A of the TB Meeting Agenda).

Pursuant to changes in Cabinet committee mandates on December 12, 2003, TB's role was expanded to include approving regulation and most Orders in Council requiring Governor in Council approval.

Consequently, proposed Orders in Council and Regulations which previously would have been submitted to the Special Committee of Council, are now considered by the TB (Part B of the TB Meeting Agenda).

This Guide was prepared by the Regulatory Affairs Division, Operations Branch, Privy Council Office. We would like to acknowledge the comments and input received from the regulators and policy analysts across government that contributed to the project.

The guide is divided into three parts:

Part A - Essentials of Making Regulation: summarizes the legal, policy and procedural framework surrounding regulations, highlighting the key documents of a regulatory proposal and the key players in the regulatory process.

Part B - The Regulatory Process: Step-by-Step provides detailed information on the steps to be followed to bring a regulation into force, once a department/agency decides to regulate. This is known as the regulatory process and is mandatory for all GiC regulations.

Part C - Models: includes samples of some of the documents used in the approval process, such as the Regulatory Impact Analysis Statement (RIAS), Letter of Transmittal, Ministerial Recommendation, Order in Council, and the Notice of Pre-publication.

Throughout this Guide “department” is often used for departments, agencies, or other regulation-making entities. We also use “regulatory proposal” for regulatory package, regulatory submission or regulatory initiative.

This an updated version of the April 2001 Guide to the Regulatory Process.

Part A: Essentials of Making Regulations

What is a Regulation?

For the purpose of this guide, the word “regulation” is used in the sense defined in the Statutory Instruments Act. This is a complex definition, but in general it includes:

any document made by the authority of an enabling act which provides the powers to “make” regulations; and

any document that is expressly authorized under an act of Parliament, lays down rules of conduct relating to rights and responsibilities, has binding legal effect, and is of general application.

Authority to make regulations must be clearly delegated by an act

(i.e., the enabling act). Consequently, regulations are often referred to as delegated or subordinate legislation. Nevertheless, regulations are law and have the same binding legal effect as acts.

An enabling act will set out the framework of a regulatory scheme and delegate the authority to develop the details and express them in regulations to the Governor in Council, a minister or an administrative agency.

The Regulations Section of the Department of Justice, or RS(J), is responsible for determining whether your document meets the legal definition of a regulation. If you have any questions on this matter, contact the RS(J) at (613)957-0099 or (613)957-0004.

The Legal Framework for Regulations

The Constitution Act, 1867, and the Charter of Rights and Freedoms are the foundation for the legal framework within which regulations are made.

Enabling Acts are made under the Constitution. They provide legal authority to make regulations. They specify who may make regulations and the scope of the regulation-making authority. Regulations must stay within this scope, adhering to certain limits. For example, a regulation must not conflict with, restrict or extend the scope of its application. Departmental legal services can provide legal advice on authority.

Beyond the enabling act, the Statutory Instruments Act (SI Act) and the Statutory Instruments Regulations (SI Regulations) provide a framework for regulations. They set out three basic legal requirements for making regulations:

• legal examination,

• registration, and

• publication in the Canada Gazette, Part II.

The Government of Canada Regulatory Policy

The Regulatory Policy is the seven-point Cabinet directive on the use of regulatory powers that have been delegated to the GiC or minister.

The Policy is designed to ensure that use of the government's regulatory powers results in the greatest net benefit to Canadian society. It states that the Government of Canada is committed to working in partnership with industry, labour, interest groups, professional organisations, other governments and interested individuals to achieve this objective.

Pursuant to the Policy, before pursuing regulation, departments must conduct an assessment, which includes identifying the problem, assessing the need for regulation, analysing and assessing alternative solutions, demonstrate that the benefits outweigh the costs, and that Canadians have been consulted.

The Policy describes the principles that govern the development of regulations, requiring that departments have systems in place to manage regulatory resources effectively and have the resources for proper implementation/enforcement. The Policy also recognizes that regulation making is no longer an exclusively domestic activity and that every regulation must be reviewed as to whether, and to what extent, it may impact on Canada's obligations under an international agreement or treaty. Annex A of the Regulatory Policy sets out the obligations of regulators with respect to international and intergovernmental agreements.

The Regulatory Policy also reinforces the requirement for regulators to follow other directives from Cabinet concerning policy and law-making such as the Cabinet Directive on Law-making , the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals and the Cost Recovery and Charging Policy.

If you have questions about the Regulatory Policy, contact your analyst at the Privy Council Office, Regulatory Affairs Division (PCO-RAD). See link to “Contact Us” in the PCO-PUBLISERVICE web site.

The Regulatory Process

The regulatory process is a set of procedural requirements flowing from the Regulatory Policy, from statutes — principally the SI Act — and from Cabinet directives. The process refers to the steps (detailed in Part B of this Guide) required to make a GiC regulation. Following the process enables departments to better ensure that ministers have the appropriate information on which to base decisions regarding regulations.

The duration of the regulatory process will vary depending on a number of factors including:

• the regulation is complex,

• the issue is controversial, and

• the magnitude of its potential impact is high.

The Regulatory Process Diagram

It is reasonable to allow six to nine months to develop and bring into force a regulatory proposal – that is, from the time the draft regulatory proposal is sent to Justice for legal examination to the regulation becoming law (referred to as Steps 3 through 9 of the Regulatory Process).

The Regulatory Proposal

The following documents comprise the heart of the regulatory proposal. Models of most of the documents can be found in Part C.

The Regulation Itself

A regulation, once made, has the force and effect of law, and is therefore the key document in the process. The most common type is known as a Governor in Council (GiC) regulation and is made by the GiC through the TB (in Part B of its Meeting Agenda), or by another entity (e.g., the Employment Insurance Commission, Canada Post Corporation) with the approval of the GiC.

The Regulatory Impact Analysis Statement (RIAS)

The RIAS is a public accounting of each regulation according to the government's Regulatory Policy. It provides a clear explanation of the regulation, its purpose, the analysis substantiating it and its expected impacts. The RIAS is a key decision-making document for ministers and the public.

Before a department decides to regulate, it will carry out a policy analysis (e.g., of benefits and costs) to determine whether regulating is the best way to respond to a certain problem. The RIAS is written at the end of the policy analysis and development process and is a summary of the analysis done. A sample RIAS is provided in Part C, however, for more detailed information, please consult the RIAS Writer's Guide.

The RIAS is the recommendation of the sponsoring minister(s) to his or her colleagues on the Treasury Board and provides important information for their consideration and decision. Pre-publication in the Canada Gazette, Part I, supplements departmental consultation mechanisms, and contributes to transparency in the regulatory process. It offers a further opportunity for public comment and input.

A regulatory submission accompanied by an incomplete RIAS will not be accepted on TB's agenda.

For guidance on developing a high-quality RIAS, consult your PCO-RAD analyst early in the process. See link to “Contact Us” in the PCO-PUBLISERVICE web site.

Other Documents

Other important documents that may accompany the proposed regulation and the RIAS in the development and approval process include: a Communications Plan, Supplementary Note, Resolution, Order in Council, Letter of Transmittal, Ministerial Recommendation, Notice of Pre-publication, and Request for Insertion in the Canada Gazette. These documents are discussed further in Part B, Step 2.

Key Participants in the Regulatory Process

Many organizations and individuals contribute to the regulation-making process. The following are the main participants:

Governor in Council

The Governor in Council (GiC) is the Governor General of Canada acting on the advice of the Queen's Privy Council for Canada

(i.e., the Cabinet). In practice, it is the TB, acting on behalf of Cabinet, that is responsible for reviewing and making recommendations to the Governor General.

When legislative authority is conferred to the GiC, it is exercised by the government collectively through the TB (in Part B of its Meeting Agenda) with few exceptions. For example, to streamline the approval process, TB has been delegated authority to act as the Committee of the Privy Council (CPC) in certain matters that are mostly non-regulatory (in Part A of its Meeting Agenda). For more information on the process of TB acting as CPC, refer to the Treasury Board Secretariat Regulatory Issues site.

Governor General

All GiC regulations must be approved by the Governor General to become law. The Governor General formally completes the “making” of regulations, the day after TB approval. If the Governor General is not available, the Chief Justice of Canada (in his/her role as Deputy Governor General) or another Judge of the Supreme Court of Canada, will approve regulations.

Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations (SJC)

The SJC provides parliamentary oversight pursuant to the SI Act. The SJC reviews the final regulation to ensure it meets a variety of criteria, including that it is authorised by the enabling statute, does not conflict with the Charter of Rights and Freedoms, and is not deficient in terms of drafting. For example, where a regulation made by the GiC is viewed by SJC to be “ultra vires” (i.e., beyond government powers), and the matter is not corrected by the regulation-making authority, the SJC may ask Parliament to order that the regulations be repealed.

Department of Justice

The Department of Justice provides legal advice to the Government, including advice about the legality of proposed regulations and the legal requirements of the regulatory process. The Department of Justice, including the Trade Law Division at the Department of Foreign Affairs and International Trade, advises regulatory authorities on their legal obligations under the World Trade Organisation, the North American Free Trade Agreement and other international agreements. This includes advice on how to draft technical regulations so as to comply with them. The two branches of the Department of Justice most involved in providing advice about proposed regulations are the Departmental Legal Services Units, or DLSUs, and the Regulations Section, or RS(J).

Departmental Legal Services Units (DLSUs): The DLSUs are normally the first point of “legal” contact for advice on regulations. They are thus in a good position to identify and resolve potential legal issues in regulatory proposals or draft regulations early on in the process. DLSUs can also help to ensure that the proposed regulatory approach is consistent with other regulations already in place elsewhere in the client department or in other parts of government.

The client department's regulatory program division and the DLSUs may together prepare drafting instructions or draft regulations. The DLSUs will review proposals before they are submitted to the RS(J). The DLSUs may be especially familiar with certain aspects of a regulatory program's work and can bring this expertise to the development of regulations.

Regulations Section (RS(J)): Depending on the department or agency involved, the RS(J) may participate in the drafting of the regulations. In a number of cases, the RS(J) has established satellite drafting units that are co-located with departmental DLSUs or departmental regulatory co-ordination offices. In all cases, the RS(J) carries out the legal examination of each proposed regulation under the Statutory Instruments Act to ensure that:

• the regulations are authorised by the enabling statute;

• the regulations do not constitute an unusual or unexpected use of the authority under which they are to be made;

• the regulations do not trespass unduly on existing rights and freedoms and are not, in any case, inconsistent with the Charter;

• the form and drafting of the regulations are in accordance with established standards; and

• the French and English versions of the proposed regulations correspond to each other.

Once this examination is completed, the RS(J) will return “blue-stamped” (i.e., examined) copies of the proposed regulations to the sponsoring department or agency.

Sponsoring Departments

For GiC regulations, departments are responsible for:

• drafting the regulations with the DLSU in both official languages¹ (or providing drafting instructions to the RS(J) in both official languages), drafting the RIAS, and other documents (e.g., Supplementary Note);

• ensuring that the information in the RIAS is consistent with the requirements of the Regulatory Policy, including the Regulatory Process Management Standards;

• submitting the appropriate number of documents² to the RS(J), the Assistant Clerk of the Privy Council, and to Regulatory Affairs analysts at PCO (both for pre-publication and final publication);

• analysing comments received during pre-publication, making changes to the regulations if warranted, and amending the RIAS to respond to comments; and

• providing for an knowledgeable official to be present at the TB meeting, if required by PCO.

Sponsoring Ministers

A minister recommends the regulation and the RIAS by signing the RIAS cover page. When seeking final approval of a regulation and publication in the Canada Gazette, Part II, a minister formally communicates his/her support for the regulation to the TB through a Ministerial Recommendation, also to be signed and dated. This document states specifically what the sponsoring minister is requesting of the Governor in Council.

Privy Council Office, Regulatory Affairs and Orders in Council Secretariat (RAOIC)

The RAOIC is responsible for monitoring, co-ordinating and advising on regulatory and Orders in Council issues and policies, and ensuring their consistency with economic, social and federal-provincial policies. The RAOIC is divided into the Regulatory Affairs Division and the Orders in Council Division. The Secretariat supports the Prime Minister and Cabinet with appointment Orders and the TB with regulations and Orders in Council.

Regulatory Affairs Division (PCO-RAD): The prime responsibilities of RAD include:

• monitoring regulatory proposals;

• providing substantive support to the TB through analysis, briefing, and advice with respect to regulatory proposals; and

• supporting the implementation and development of the Regulatory Policy.

RAD reviews each regulatory proposal from an overall policy perspective. The Division may request additional information or analyses from the sponsoring department prior to the proposal being submitted to the TB for consideration.

Order in Council Division (PCO-OiC): This Division's responsibilities include:

• managing the approval process for all Orders in Council, regulations, and other statutory instruments;

• providing secretariat services to TB;

• providing advice on the use of Orders in Council;

• producing and distributing Orders in Council;

• registering and publishing regulations in Part II of the Canada Gazette; and

• maintaining records of approved Orders in Council, the Consolidated Index of Statutory Instruments, and a number of oath books.

Canada Gazette

The Canada Gazette is the official publication of the Government of Canada. Published regularly by the Queen's Printer since 1841, the Canada Gazette serves as public notice of government initiatives with regard to legislation, regulations, etc.

The Canada Gazette, Part I, contains all formal public notices, official appointments, miscellaneous notices and proposed regulations from the government and private sectors that are required to be published by a statute or regulation. The Canada Gazette Directorate, Communications Co-ordination Services Branch, Public Works and Government Services Canada (PWGSC), co-ordinates, edits and produces Part I.

The Canada Gazette, Part II, contains regulations as defined in the SI Act, and certain other classes of statutory instruments. The PCO-OiC co-ordinates and registers all regulations for publication in Part II.

The Canada Gazette, Part III, contains the most recent public Acts of Parliament and their enactment proclamations. The Canada Gazette Directorate, PWGSC, produces, publishes and distributes all three parts of the Canada Gazette on behalf of the Queen's Printer for Canada and in accordance with the SI Act and the SI Regulations.

Treasury Board Secretariat (TBS)

TBS examines draft regulations that require TB approval or recommendation in its capacity as the central agency responsible for the management of the government's financial, personnel and administrative affairs (Part A of the TB Meeting Agenda). It plays a challenge role vis-à-vis client departments or agencies to ensure that it focuses on the most deserving priorities and that program design and impacts have been fully considered before bringing proposals before TB. TBS plays a leadership role in issues directly related to the making of regulations, such as program management, expenditure management, cost-recovery policy, performance measurement and reporting.

Treasury Board (TB)

TB is a statutory Cabinet committee whose recommendation or approval is required for regulations liable to have significant financial implications or those that, through their enabling statutes, require TB approval or recommendation (e.g., regulations that impose new user fees, or raise or lower existing fees under the Financial Administration Act). This responsibility is set out in Part A of TB's Meeting Agenda.

Pursuant to changes in Cabinet committee mandates on December 12, 2003, TB's role was expanded to include approving regulation and most Orders in Council requiring Governor in Council approval.

Consequently, proposed Orders in Council and Regulations which previously would have been submitted to the Special Committee of Council, are now considered by the TB in Part B of the TB Meeting Agenda.

Part B 
The Regulatory Process Step-by-Step

Part B: The Regulatory Process: Step-By-Step

The process outlined below is designed to help ensure that a department's regulations comply with the requirements of the Statutory Instruments Act and the Regulatory Policy.

Completing the procedures of Step 1 below may reveal that regulation is not the best instrument to use for policy development. Alternatives should then be pursued.

STEP 1: Conception and Development of a Regulation

Regulating is not always the best solution to a problem, therefore the Regulatory Policy sets out criteria for determining whether regulation making is warranted. These criteria include demonstrating that a problem or risk exists, that intervention is justified and that regulation is the best alternative. Other Cabinet directives (e.g., the 1999 Cabinet Directive on Environmental Assessment of Policy, Plan and Program Proposals) must also be followed in the conception and development of regulations.

In seeking a solution to a defined problem, the department must consider the potential impacts of the proposed action. Questions to ask include:

• Will the proposed solution have an environmental impact? If so, an environmental assessment should be done.

• Does it have health and safety implications?

• Will it affect a specific group (e.g., single parents, First Nations, etc.) or industry sector (e.g., telecommunications, forestry)?

• What are its costs and benefits?

• Who will benefit, and who will pay the cost?

If, after initial policy analysis, the department concludes (either on its own, or as a result of consultations) to pursue regulation, it must do so according to a specific process. This includes planning, analysis and public consultation in accordance with the Regulatory Policy.

If necessary, refer to the following guide books:

• Benefit-Cost Analysis Guide for Regulatory Programs

• A Guide to the Making of Federal Acts and Regulations, Part I

• Assessing Regulatory Alternatives

• Standards Systems: A Guide for Canadian Regulators

• Voluntary Codes Guide

Notification

Before drafting a regulatory proposal, it may be necessary to involve the public in defining the problem and identifying a solution. Early notice improves the regulatory process, as affected parties are more likely to accept regulations introduced this way than ones imposed without early and genuine consultation.

Early notification can be done through a number of official vehicles. Four of these are:

Report on Plans and Priorities (RPP): Each department and agency must prepare a one-year RPP to be tabled in Parliament. This document offers an opportunity to advise Parliamentarians, and interested groups and individuals, of upcoming regulatory initiatives. At a minimum, departments should include “major” and “significant” ³ regulations in their RPP.

Departmental Regulatory Plan: Departments should develop a Web site and/or other information vehicles that outline their regulatory plans and can provide more complete advance notice than the RPP. The RPP should refer to these vehicles.

• Notice of Intent: If a department decides that public consultations would be in the public interest, it can launch the process by publishing a Notice of Intent in the Canada Gazette, Part I.

• A Notice of Intent can be used to solicit the views of the public in the early stages of problem definition. Publishing a Notice of Intent does not preclude the need for pre-publication or for general consultation with stakeholders, including the public, during the development of the related policy and regulation.

• The Notice of Intent should be tailored to the situation. Seek input (data, technical specifications, expert advice and comment, and any other relevant information) needed to define an issue clearly. The Notice of Intent may also propose a reasonable and achievable solution.

Departments may advise their clients and others about upcoming regulatory initiatives through such vehicles as departmental publications and Web sites, trade, sectoral or professional publications, etc.

STEP 2: Departmental Drafting of a Regulation, RIAS, and Other Documents

In developing the regulatory proposal, keep in mind the Regulatory Policy requirements and the analysis that must be undertaken to achieve an effective regulation.

Although some regulations are straightforward, many are complex and require much time to develop. Expect delays, and develop a plan for timely management of your process, especially if a number of parties are to provide input.

The Draft Regulation

The information gathered in Step 1 should provide the necessary viewpoints and direction for formulating an appropriate regulatory scheme. The objective is to draft the best possible regulatory tool in accordance with the law and the Regulatory Policy.

The DLSU will work on the legal aspects of your regulations and regulatory package before the regulations go the RS(J).

A department or agency may either draft a regulation itself in both official languages, or provide the RS(J) with drafting instructions in both official languages.

When a department submits drafting instructions:

• These instructions should explain the policy that the department or agency intends to implement through the proposed regulations. The instructions should deal with who, when, where, and how the issue is being dealt with.

• The policy should be as well developed as possible before drafting instructions are submitted. Using this information, a team of RS(J) drafters advises on the legal authority for the regulatory proposals, assists in the process of developing the regulations and produces drafts that conform to the criteria of the SI Act. The client then verifies these drafts to ensure consistency with the policy.

• Along with drafting instructions, departments must also submit a draft RIAS. The RS(J) will review the regulation at the same time as drafting them. Before a regulation is blue-stamped ⁴, the department will review the draft regulation, make changes, if necessary, and submit to the RS(J) a final RIAS as well as the other documents required in the regulatory proposal.

When a department submits draft regulations:

• In this case, a team of RS(J) drafters advises on the legal authorities and re-drafts provisions that do not meet accepted standards. The team will draw legal and drafting problems to the instructing officer's attention and suggest solutions. The client then verifies these drafts.

• The RS(J) may rewrite some provisions of the regulations. To ensure that these revisions result in regulations that are enforceable and that respect the policy, departments and agencies should review and comment on both English and French versions of the draft before they are blue-stamped.

• Your legal advisors should be involved in the regulation-making process early.

The Regulatory Impact Analysis Statement (RIAS)

The sponsoring department(s) must prepare a RIAS to accompany each regulatory proposal. Each section of the RIAS addresses one or more elements of the Regulatory Policy. Regulatory submissions will not be scheduled unless they are accompanied by a RIAS. A detailed explanation of each section's requirements can be found in Part C.

The Communications Assessment

Normally, a department's communications directorate will perform a Communications Assessment and develop a Communications Plan, if needed. The Plan:

• details what is to be achieved by each communications activity;

• identifies how the department has encouraged public participation while developing the proposal;

• states who the affected parties are;

• states what reaction has been so far;

• identifies who is to be the target audience for communication initiatives;

• states how these will be carried out; and

• identifies opportunities for publishing the benefits of the regulation or responding to possible negative reactions.

The Supplementary Note

Use the Supplementary Note to inform ministers of confidential (e.g., trade secrets) or sensitive matters not found in the RIAS. For example, you could use the Supplementary Note to acquaint ministers with the objectives, nature and consequences of the proposal. Supplementary Notes are not part of the Regulations. They are Cabinet confidences and, as such, are not released to the public. Because they contain confidential and/or sensitive information, they should not be sent electronically to PCO.

How to prepare a Supplementary Note:

• Title the Supplementary Note as such.

• Indicate any security classification in the top right-hand corner.

• Indicate “NOT FOR PUBLICATION” in the top right-hand corner (immediately below any security classification).

• Provide briefing information in a format and at a level of detail appropriate to the case.

• List by name groups opposed to the regulation, and provide an assessment of their views and how these have been addressed.

• Do not attach the Supplementary Note to any document.

• The Supplementary Note is to be submitted on standard size paper 8½" x 11", in both French and English.

Notice of Pre-publication

This indicates to interested parties the government's intent to regulate. It specifies how many days the regulation will be pre-published and to whom to send comments.

The draft Order in Council

This is a short legal document (like a covering letter) that gives effect to the decision of the GiC to make or approve the regulation.

The Letter of Transmittal

Regulations sent to the RS(J) for legal examination must be accompanied by a Letter of Transmittal signed by the departmental manager responsible for the project.

The Draft Ministerial Recommendation

The recommendation is a ministerial communication which states specifically what the sponsoring minister is requesting of the Governor in Council.

It is also helpful to PCO-RAD analysts to include in the regulatory proposal a copy of the briefing memo to the sponsoring minister.

STEP 3: Examination by Justice – RS(J) and preliminary assessment by PCO-RAD

Pursuant to the SI Act, regulations are required to be examined by the Clerk of the Privy Council in consultation with the Deputy Minister of Justice. This function is managed by the Deputy Chief Legislative Counsel (Regulations), Justice. This legal examination is to ensure that the proposed regulations:

• are authorised by the enabling statute;

• do not constitute an unusual or unexpected use of the authority under which they are to be made;

• do not trespass unduly on existing rights and freedoms and are not, in any case, inconsistent with the Charter of Rights and Freedoms; and

• are in the form and drafted in accordance with established standards.

The Checklist at the end of this section provides details on how many copies to send and to whom. Part C provides detailed information and models of most documents. Once all the documents have been prepared, forward the regulatory proposal to the RS(J) and PCO-RAD.

The RS(J) Role

If a department submitted drafting instructions to the RS(J), its review will be done concurrently with the drafting. Once the client department approves the draft regulation, the RS(J) will blue-stamp it.

If a department itself drafts the proposed regulation, the RS(J) will examine it and provide the sender with a file number. The RS(J) will review the documents provided and, once completed, will send blue-stamped copies of the proposed regulations to the DLSU for further processing.

The time required for the RS(J) to complete the examination of proposed regulations will vary from case to case, depending on a number of factors. These include the length and complexity of the proposed regulations, the number of legal and drafting issues to be addressed, the workload of the Regulations Section at the time, and the priority assigned to the regulations by the sponsoring department or by the government as a whole. Departments are encouraged to consult the Regulations Section in order to obtain an estimate of the time needed to complete the examination in any given case.

The PCO Role

This is a useful point at which to obtain preliminary feedback from PCO-RAD on your draft submission. It is recommended at this point that you provide a copy of the submission package to your PCO, Regulatory Affairs analyst. Your PCO-RAD analyst will review the draft RIAS for consistency with the Regulatory Policy, requests for exemption from pre-publication, and for clarity and completeness of information. PCO will discuss any concerns with the department, dealing usually with the contact person whose name appears on the RIAS.

Requests for exemption from pre-publication are considered on a case-by-case basis and therefore the list of examples found below is not exhaustive. The PCO-RAD advises ministers and departments on the appropriateness of a proposed exemption and may recommend that it be challenged.

Examples of regulations that may be considered for exemption from pre-publication include, but are not limited to, those that:

• respond to emergencies which pose major risks to health, safety, the environment or security;

• are sensitive, where pre-publication would cause demonstrable adverse effects or undermine the intent of the regulations, such as regulations affecting subsidy changes and interest-rate changes;

• need renumbering, corrections to ensure consistency between English and French versions, or corrections of grammatical or typographical errors (miscellaneous amendments);

• are enabling regulations, such as remission orders and authorising orders (e.g., regulations permitting the growing of hemp to be used for medicinal purposes);

• are repetitive regulations duplicated in the same form regularly (e.g., Energy Supply Allocation Board Regulations, which must be amended every two years to name board members);

• are being repealed and have not been enforced for a considerable period of time;

• are exempt from pre-publication pursuant to the statute (e.g., Canada Business Corporations Act, section 261, subsection (3)).

It is recommended that you obtain PCO-RAD advice prior to submitting your proposal to your Minister for signature.

Step 4: Ministerial Approval for Pre-Publication

Departments have varying internal management and approval systems for regulations. Your regulatory co-ordination personnel can advise you on the system that exists in your department.

On receipt of blue-stamped copies of the regulatory proposal from the RS(J), you will usually seek your minister's approval of the proposal (and that of other ministers if more than one is sponsoring the proposal). If approval is granted the department will prepare a regulatory package for submission to the TB.

A minister grants his/her approval of the proposed regulation and the RIAS, by signing on the RIAS cover page. This signals that the minister is recommending the regulation to the TB.

By approving the documentation, a minister formally recommends to the GiC that the proposed regulations be pre-published. The TB will make its decision on the regulation, taking into account both the justification contained in your regulatory package and broader government priorities and issues.

The sponsoring department(s) must fill in a Request for Insertion in the Canada Gazette form in order to have their regulatory proposal published (Form PWGSC-TPSGC 3105-1) or available at http://publiservice.gc.ca/services/gazette e.html. This is to be included in the regulatory package along with the documents drafted in the previous step. All documents required for pre-publication in the Canada Gazette, Part I, are listed in the Checklist at the end of this section. If a regulatory proposal does not have direct financial implications, it is now ready to be forwarded to the Assistant Clerk of the Privy Council Office.

GiC regulations that have direct financial implications (e.g., regulations that impose new user fees, or raise or lower existing fees under the Financial Administration Act) require TB approval in Part A of its Meeting Agenda in addition to TB's approval for pre-publication in Part B of its Meeting Agenda. Departments must submit the TB submission only to TBS, who will then forward a copy to the Assistant Clerk of the Privy Council⁵ . Once pre-publication is completed, you need not obtain the recommendation of Treasury Board for the final approval stage, unless substantive changes have been made to the regulation following pre-publication.

STEP 5: Pre-publication review by the RAOIC Secretariat and the TB

Upon receipt of a regulatory proposal, the OiC Division will verify that:

• the regulation is required to be submitted to the OiC Division, as ministerial regulations do not come before the TB for pre-publication;

• all the required documents have been submitted;

• the regulations have been blue-stamped⁶ ;

• the RIAS and Request for Insertion in the Canada Gazette have been signed by the correct official; and

• there are no discrepancies between the regulation and the draft Order (if there are discrepancies, the regulation will be sent back to Justice to be revised and blue-stamped again).

The OiC Division will then forward a copy of the submission to the RAD.

PCO-RAD analysts will review the RIAS and write a briefing note for the ministers of the TB. If any questions or concerns arise, they will contact the official named in the RIAS. If a department has requested an exemption from publication, PCO-RAD analysts will provide advice to the TB as to whether or not it should be granted.

Approval by the TB in Part B of its Meeting Agenda is required for Canada Gazette, Part I, pre-publication (or exemption) of both GiC regulations and GiC regulations with financial implications that are recommended by the TB.

Unlike the final approval stage, pre-publication in the Canada Gazette does not require the signature of the Governor General; the signature of the Assistant Clerk of the Privy Council is adequate.

Once signed by the sponsoring minister(s), the letter of transmittal accompanying the regulatory package should be sent to the Assistant Clerk of the Privy Council, under the signature of the Assistant Deputy Minister (ADM) or of the Director General if the ADM is not available. If the regulation is submitted by an Agency, the signature of the President is required.

The Checklist at the end of this section provides information on what documents must be submitted at this stage. The RAOIC then starts the process of seeking TB consideration of the regulatory proposal.

Deadlines

PCO sends departmental regulatory co-ordinators semi-annual bulletins with TB meeting dates.

The deadline for receipt in the Privy Council Office, Orders in Council Division (PCO) of complete signed submissions is 10 working days (2 weeks) prior to the TB Cabinet committee meeting. However, the Regulatory Impact Analysis Statement (RIAS) must now be provided in draft form at least 15 working days (three weeks) prior to the TB meeting. As submission deadlines are based on a fixed number of working days prior to TB meetings, deadline dates are adjusted to account for holidays during the period.

Submissions received after the deadline will be scheduled for the following meeting. Requests to have TB consider urgent submissions which are received after the deadline, require a letter from your Minister to the President of the Treasury Board justifying urgent consideration of the late submission. The signed letter should be inserted in an envelope addressed to the Assistant Clerk of the Privy Council and must be delivered by secure messenger, or by secure fax (613) 957-5773. If sent by secure fax, the original letter must follow by secure messenger. Please advise the Assistant Clerk of the Privy Council of the urgency as soon as possible at (613) 957-5430. Consistent with established TB practice, urgent submissions will be scheduled for consideration by the Board at the discretion of the President.

To be accepted, submissions must be complete; they must include the signed Ministerial Recommendation and all required documents.

Treasury Board (TB) Meeting

The TB considers regulatory proposals on their own merits. The sponsoring department may be asked to provide for an knowledgeable official to be present at the TB meeting, if required by PCO.

For each submission, the Committee may make any of the following decisions:

• approve the recommendation for pre-publication;

• approve or reject requests for exemptions to pre-publication;

• approve the regulatory proposal in final form;

• send the item to Cabinet, or one of its other committees (including TB in its financial capacity – Part A of its agenda), for consideration;

• refer the matter back to the responsible minister for further consideration and information.

STEP 6: Pre-publication in the Canada Gazette, Part I, with Comment Period

If approved by the TB, the PCO-OiC forwards the draft regulations and the accompanying RIAS to the Canada Gazette Directorate (PWGSC). The draft regulations and the RIAS will be pre-published in the Canada Gazette, Part I. The publication requirements, publication deadline schedule, insertion rates and Request for Insertion in the Canada Gazette are available at:

http://canadagazette.gc.ca/index-e.html

Pre-publication gives various interested groups and individuals, and Canadians in general, a final opportunity to review and comment on a regulatory proposal at the last stages of the regulation-making process. Pre-publication also gives interested parties the opportunity to see how the final draft proposal is in keeping with previous consultation drafts.

When draft regulations are pre-published, interested persons are allowed a period of time to express their views. The standard period is usually 30 days in the case of regulations pre-published under the Cabinet policy. In other cases, the length of pre-publication may be specified in the enabling act.

Cabinet policy states that technical regulations affecting trade should be pre-published for at least 75 days in the Canada Gazette, Part I. This is in order to allow Canada to fulfil its obligation of notification under various trade agreements, such as the World Trade Organization's Agreement on Technical Barriers to Trade and the Agreement on the Application of Sanitary and Phytosanitary Measures. In general, regulators should verify Canada's notification obligations under international and intergovernmental agreements.

If a department decides to extend the pre-publication period after the TB has authorized pre-publication, it should place a notice in the Canada Gazette explaining the extension. The final RIAS (as it appears in the Canada Gazette, Part II) should also explain the extension.

The TB can approve an exemption from pre-publication. However, pre-publication is an important part of the regulatory process, therefore the Committee does not grant exemptions lightly. In some cases, a shortened pre-publication period (e.g., 15 days instead of at least

30 days) may be approved instead of an exemption. In the case of a shorter pre-publication period, the sponsoring department is required to provide a Notice of pre-publication to PCO as soon as possible. The RIAS does not require to be re-signed by the Minister.

Notice of Withdrawal

If after pre-publication it is decided not to proceed with the regulatory proposal, a department/agency should publish a Notice of Withdrawal in the Canada Gazette, Part I.

STEP 7: Departmental Preparation of Regulatory Proposal for Final Submission to the TB

In preparing the regulatory proposal for final submission to the TB, the department must update it by including the following:

• an updated RIAS which reflects information relating to the comments received during the pre-publication period, any actions taken to address those comments and the rationale for the department's response. The document should also indicate the initial date of pre-publication under the “Communication” heading and on its cover page;

• a formal Ministerial Recommendation to the Governor in Council signed by the sponsoring minister;

• blue-stamped copies of the Order in Council;

• a Request for Insertion in the Canada Gazette form must be filled out by the sponsoring department (Form PWGSC-TPSGC 3105-1);

• a Resolution. This is only required if the body making the regulation (e.g., the Pacific Pilotage Authority) is different from the body approving it (e.g., the TB).

No change to the regulation

At a minimum, the RIAS should contain a summary of any comments received and how they were handled. If there were no comments, the RIAS should include the phrase, “This regulation was pre-published in Canada Gazette, Part I, on [date] and no comments were received.”

Although there is no change to the regulation as a result of pre-publication, it is required that it be re-submitted to the RS(J) to be blue-stamped again. In part, this is to ensure that the authorities pursuant to which the regulation are being made have not been modified by Parliament⁷ .

Changed regulations

If the proposed regulations are modified as a result of comments, they will have to be re-submitted to the RS(J) for examination and blue-stamping. The revised RIAS should fully reflect the background and rationale for the change. International aspects should be taken into account in the reformulation of a proposed regulation to consider any changes that may have occurred on the international scene in the ensuing period. PCO-RAD should also receive a copy of the revised RIAS, at the same time that it is sent to RS(J), for review and comment.

The decision to proceed directly with final approval and publication (Part II of the Canada Gazette), or to pre-publish again, will depend on how substantive the changes to the regulation were. The department should discuss this with PCO and its DLSU. A second round of pre-publication ensures that the communities that may be affected are aware that the original proposal was altered significantly.

Delayed regulations

If 18 months have passed since pre-publication, the regulation may need to be pre-published again. This is to inform interested Canadians that even though the regulation has been delayed, it will still proceed. An explanation for the delay should be included in the revised RIAS.

STEP 8: Final review by the RAOIC and the Treasury Board

Once you have obtained the minister's approval for the final proposal, it should be sent to the Assistant Clerk of the Privy Council. The Checklist at the end of this part provides information on documents to be submitted. As in Step 5, the OiC Division will again verify that all the documents have been submitted, are blue-stamped, have the correct signatures, and that there are no discrepancies between the draft regulation and the Order in Council. The OiC Division will forward a copy of the submission to the PCO-RAD, where analysts will update the briefing note to reflect the results of pre-publication.

At this stage, the TB will consider the results of pre-publication along with the rest of the information in the regulatory package and will decide whether to grant final approval, request a second pre-publication, postpone the item pending further information, or reject the item.

STEP 9: Making, Registering, Publishing in Canada Gazette, Part II, and Distributing Regulations

Making or Approving Regulations

A regulation is made when the Governor in Council approves the Order in Council attached to the Regulation (also called Executive Order).

Sometimes an enabling act not only authorises someone to make regulations, it also indicates that some other person or body must approve them. For example, the enabling provision may include the phrase, “The Commission may, with the approval of the Governor in Council, make regulations…”. Such an approval is given through an Order in Council.

Registration

For regulations, the Clerk of the Privy Council records the title of the regulation, the title of the regulation-making authority, the source of the power to make the regulation, the date of making and the date of registration, and assigns it a number, preceded by “SOR” (Statutory Orders and Regulations). In practice, the Clerk's responsibilities are fulfilled by the Orders in Council Division of the Privy Council Office.

Coming into Force

Registration is a crucial step in the regulatory process because it determines when the regulations take effect. Regulations that must be registered come into force on the day of registration, unless the enabling statute or the regulations themselves specify another effective date. Regulations that are not required to be registered are effective on the day they are made, unless another effective date is specified in the regulations.

When an effective date for a statute or regulation must be specified, please ensure this date is at least two working days subsequent to the TB meeting to allow time for the Governor General to sign. If the effective date need not be specified, the sentence “These Regulations come into force on the day on which they are registered”, can be used.

In practice, this means that Orders in Council are signed by the Governor General and usually come into force the day after receiving approval by the TB.

The coming into force dates before the making of a regulation or other document can only be specified if there is authority to do so in the enabling act. Such an effective date makes a regulation or document retroactive, and clear statutory authority is required for this.

Public announcement of the government's decision to make a regulation by Order in Council must not be made until the approval of the Governor General is obtained.

Publication

The Statutory Instruments Act and Statutory Instruments Regulations provide for the publication of most regulations in Part II of the Canada Gazette within 23 days after their registration. Section 15 of the Statutory Instruments Regulations identifies, as a class, certain types of regulations that are exempted from publication. The regulations can also be found on the Canada Gazette Web site.

The Canada Gazette is published by the Queen's Printer, whose responsibilities in this regard are carried out by the Canada Gazette Directorate of PWGSC.

Failure to publish a regulation does not make it invalid, but does prevent the punishment of offences for contravening the regulation. The reason is the constitutional principle of the rule of law: the terms of the law must be knowable and not kept secret. If a regulation is not published, people cannot be presumed to have had any way of finding out what their rights and responsibilities under it were.

There is one exception. Someone contravening to an unpublished regulation can be punished if the regulation is exempt from publication or if it expressly provides that it applies according to its terms before it is published in the Canada Gazette. However, in such cases it must also 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.

Distribution

Copies of Orders in Council passed by TB on Monday, and signed by the Governor General on Tuesday, are normally mailed to sponsoring departments or agencies on or before the following Friday. One copy is addressed to the sponsoring Minister and the other copy is addressed to the Deputy Minister or agency head.

All Orders in Council, including regulations, are made available to the public three working days after they have been approved by the Governor General. They can be found at the following two PCO locations:

• PCO Reading Room, 4^th Floor, 85 Sparks Street, Ottawa (where readers will be able to obtain a short précis list of Orders and Regulations, together with the name of the sponsoring department, the Privy Council number and the legal authority);

• PCO Orders in Council Division, Statutory Instruments, 4^th Floor, 85 Sparks Street, Ottawa – for review and purchase of certified copies of regulations; and

• on the Web at: http://www.pco-bcp.gc.ca/oic-ddc/

STEP 10: Parliamentary Review by the Standing Joint Committee For the Scrutiny of Regulations

The Standing Joint Committee for the Scrutiny of Regulations monitors the exercise of regulatory power on behalf of Parliament. Its mandate, set out in section 19 of the SI Act, is to review regulations and other statutory instruments after they are made.

The Committee checks the instruments against the criteria approved by the Senate and the House of Commons at the beginning of each session of Parliament.

When the Committee finds a problem with a statutory instrument, it tells the regulation-making authority and suggests solutions. If the Committee and the regulation-making authority are unable to agree on a solution, the Committee may draw the matter to the attention of both Houses of Parliament. If the instrument was made by the Governor in Council or a minister, the Committee is also authorised, under subsection 123(1) of the Standing Orders of the House of Commons, to propose the disallowance of the instrument to the House of Commons. A disallowance resolution, if not rejected, becomes an Order of the House enjoining the Governor in Council or minister to revoke the statutory instrument.

Checklist – Governor in Council Regulation

On each diskette label, indicate your department, contact name, phone number, and software used (Microsoft Word up to version 97 or Corel WordPerfect up to version 8).

1. All documents must be prepared in English and French, except the Request for Insertion in the Canada Gazette and the Letter of Transmittal, which can be submitted in either language.
2. Send to the Director of Operations, PCO-RAD or to the appropriate PCO-RAD analyst. The analyst will review the draft submission and may provide comments to departmental officials.
3. Do not need to be “certified true copies”, but if pre-publication is a statutory requirement, one of these four copies must be blue-stamped.
4. Do not send Communications Plan and Supplementary Notes by e-mail.
5. The number of copies indicated include a second complete copy for PCO-RAD. This should be provided in a separate envelope.

Checklist – Ministerial Regulation

1. All documents must be prepared in English and French, except the Request for Insertion in the Canada Gazette and the Letter of Transmittal, which can be submitted in either language.
2. Send to the Director of Operations, PCO-RAD or to the appropriate PCO-RAD analyst. The analyst will review the draft submission and may provide comments to departmental officials.
3. If the prepublication is a statutory requirement, you must send a stamped copy an attested true copy of the Notice of prepublication to the Canada Gazette (Part I). An attested true copy is a photocopy of an original blue-tamped document.
4. If the examination is done by the department, you must send a diskette to PCO-OIC.
5. An attested true copy is a photocopy of an original blue-tamped document.

Part C - Models

Information and samples are provided for the following documents:

Regulatory Impact Analysis Statement (RIAS)

• RIAS cover page

• RIAS

Letter of Transmittal

• when submitting regulatory proposal to Justice for legal examination

• when submitting regulatory proposal to the TB for pre-publication or final approval

Ministerial Recommendation

• new regulations

• amending regulations

• repealing regulations

Order in Council

• making new regulations and repealing old regulations

• amending regulations

• amending regulations affecting several regulations

• repealing regulations

• remission order

• order with conditions precedent

Resolution

Notice of Pre-publication

• new regulations or amendment of a regulation (made by the Governor in Council)

• new regulations or amendment of a regulation (made by the Governor in Council), where pre-publication is required by statute

Regulatory Impact Analysis Statement (RIAS)

This section provides:

• a Regulatory Impact Analysis Statement (RIAS) cover page (Figure A1)

• information on preparing a RIAS (Figure A2)

A Regulatory Impact Analysis Statement:

• accompanies each proposed regulation;

• summarises the information ministers require to decide on proposed regulations; and

• describes what the government will deliver, the consultation that has taken place and the opinions Canadians expressed during that consultation, and the benefits and costs of the proposal.

A diskette containing the final version of the RIAS must be sent along with the submission. It should be clearly identified and placed in a disk mailer envelope.

The nature and amount of analysis appropriate for a regulatory proposal and the description of the findings in a RIAS vary according to the significance and likely impact of the proposal.

The department or agency sponsoring the regulations is responsible for the content of the RIAS. Ultimate accountability rests with the minister or head of the agency.

The RIAS has six required sections:

• Description

• Alternatives

• Benefits and Costs

• Consultation

• Compliance and Enforcement

• Contact

A description of the content of each section follows. The information on the cover page is not published in the Canada Gazette.

For detailed guidelines on writing a RIAS, consult the RIAS Writer's Guide.

Figure A1: RIAS cover page

Figure A2: RIAS

1. Use the appropriate term, such as Regulation, Order, or Rule.

Figure A2: RIAS (continued)

Figure A2: RIAS (continued)

Figure A2: RIAS (continued)

Figure A2: RIAS (continued)

Figure A2: RIAS (continued)

Letter of Transmittal

Regulatory proposals being submitted for legal examination should be sent to the Deputy Chief Legislative Counsel (Regulations), Legislative Services Branch, Justice. A copy of the proposal should also be sent to the Director of Operations, Regulatory Affairs Division, Regulatory Affairs and Orders in Council Secretariat, Privy Council Office. The regulatory proposal must be accompanied by a Letter of Transmittal signed by the departmental manager responsible for the project.

The Letter of Transmittal must include the following:

• the name of the proposed regulation;

• any deadline for stamped copies;

• a statement indicating whether you will request an exemption from pre-publication and, if you ask for an exemption, an explanation of the reasons;

• the name of the department's RIAS contact;

• the name and telephone number of the department's legal contact;

• the department's file number; and

• a list of the Government of Canada departments that must be consulted about the proposed regulation, along with a statement of the outcome of interdepartmental consultations to date.

Figure A3: Letter of Transmittal

Submissions to the TB for pre-publication or final approval require a Letter of Transmittal to the Assistant Clerk of the Privy Council. The letter should:

• be dated at the time of sending and signed by an assistant deputy minister (or director general if the assistant deputy minister is not available, or the President in the case of an Agency);

• state the subject matter, the contents of the package, a short explanation of the submission, and if it's being submitted for publication in Part I or II of the Canada Gazette;

• specify any special requests relating to the timing of approval by the Governor in Council;

• state whether the submission has financial implications, and whether Treasury Board approval is required, citing the Treasury Board decision number where it does exist and date of approval;

• indicate the name, title and telephone number of the official that can be contacted for additional information about the submission.

Figure A3: Letter of Transmittal (Con't)

Ministerial Recommendation

The recommendation is a ministerial communication and states specifically what the sponsoring minister is requesting of the Governor in Council. The recommendation accompanies the regulatory proposal when it is submitted to the Treasury Board for approval, registration, and publication in the Canada Gazette, Part II. It clarifies the nature of the proposal.

Only a minister may make a recommendation. This is one of the ways in which the principle of ministerial accountability for regulations is honoured.

When the authorising statute dictates that a regulatory proposal must be sponsored by more than one minister, all references to documents signed by the minister are intended to mean all ministers named in the statute. In practical terms, this means that all ministers sign the RIAS and the recommendation to the Governor in Council.

These documents adhere to a standard format and wording in the interests of accuracy, completeness and efficiency. The recommendation must be drafted in both official languages, dated, signed and prepared on departmental or ministerial letterhead. The recommendation could appear on one page, with the French and English versions side by side. When the document consists of more than one page, these must be numbered. The samples that follow in Figure A4 cover most situations, i.e.:

• making new regulations and repealing old regulations;

• amending regulations; and

• repealing regulations.

Figure A4: Ministerial Recommendation

Figure A4: Ministerial Recommendation (continued)

Order in Council

The Order in Council records a decision made by the Governor in Council. The document is a short statement of the nature of the decision and it names the minister(s) on whose recommendation the decision was made.

An Order in Council is required for a decision whenever the authority to regulate rests with the Governor in Council.

The information in these Orders follows a standard sequence, with the wording varying to fit the situation. The samples that follow in Figure A5 cover most situations, i.e.:

• making new regulations and repealing old regulations;

• amending regulations;

• amending regulations affecting several regulations;

• repealing regulations;

• making a remission order; and

• making an order with conditions precedent.

Figure A5: Orders in Council

Figure A5: Orders in Council (continued)

Resolution

When a regulation requires Governor in Council (GiC) approval, it must be accompanied by a Resolution so that the GiC knows the regulation has been made.

For example, the Pacific Pilotage Authority, can make regulations, but they must be approved by the Treasury Board. The Pilotage Authority would therefore include in its regulatory package a Resolution stating that a regulation has been made.

Figure A6: Resolution

Notice of Pre-publication

The following are examples of Notices of Pre-publication for the Canada Gazette, Part I:

• new regulations or amendment of a regulation (made by the Governor in Council); and

• new regulations or amendment of a regulation (made by the Governor in Council), where pre-publication is required by statute.

• For convenience, the English and French versions are shown side-by-side in Figure A7. Actual documents must be prepared on separate pages.

Figure A7: Notice of pre-publication

Acronyms

DLSU Departmental Legal Services Unit

GiC Governor in Council

OiC Order in Council

PCO Privy Council Office

OiC Division Orders in Council Division of the Privy Council Office

PCO-RAD Privy Council Office-Regulatory Affairs Division

PWGSC Public Works and Government Services Canada

RAD Regulatory Affairs Division (of PCO)

RAOIC Regulatory Affairs and Orders in Council Secretariat of PCO

RIAS Regulatory Impact Analysis Statement

RPMS Regulatory Process Management Standards

RPP Report on Plans and Priorities

RS(J) Regulatory Section (Justice)

SI Statutory Instrument

SI Act Statutory Instruments Act

SI Regulations Statutory Instruments Regulations

SJC Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations

SOR Statutory Orders and Regulations

TB Treasury Board

TBS Treasury Board Secretariat

References

Questions, comments, concerns, or information about this Guide can be directed to:

Regulatory Affairs Division
Regulatory Affairs and Orders in Council Secretariat
Privy Council Office
Suite 1100 – 155 Queen Street
Ottawa, Ontario
K1P 6L1

Telephone: (613) 943-5076
FAX: (613) 943-5071

RIAS Writer Guide (1999):

Consulting and Audit Canada
Telephone: (613) 947-2425

Benefit-Cost Analysis Guide for Regulatory Programs (1995)

Consulting and Audit Canada
Telephone: (613) 947-2425

Federal Regulations Manual (Part 5) (1998)

Regulations Section
Legislative Services Branch
Department of Justice

Telephone: (613) 957-0099

For printed copies of the:

Government of Canada Regulatory Policy (1999);
Consultation Guidelines for Managers in the Federal Public Service (1992); and
Assessing Regulatory Alternatives (1994) are available at:

Information and Research Centre
Privy Council Office
85 Sparks Street, Room 1000
Ottawa, Ontario
K1A 0A3
Telephone: (613) 957-5153
FAX: (613) 957-5043

Standards Systems: A Guide for Canadian Regulators (1998):

Information Distribution Centre
Communications Branch, Industry Canada
Room 205D, West Tower
235 Queen Street, C.D. Howe Building
Ottawa, Ontario,
K1A 0H5
Telephone: (613) 947-7466
FAX: (613) 954-6436

Voluntary Codes Guide (1999):

Office of Consumer Affairs, Industry Canada
235 Queen Street, C.D. Howe Building
9^th Floor, East Tower
Ottawa, Ontario
K1A 0H5
Telephone: (613) 952-9449

Web addresses

Statutory Instruments Regulations
http://laws.justice.gc.ca/en/s-22/index.html

Government of Canada Regulatory Policy, 1999
http://www.pco-bcp.gc.ca/raoics-srdc/docs/publications/regulatory_policy_e.pdf

Government of Canada Regulatory Policy, 1999. Annex A - International and
Intergovernmental Agreements: Obligations of Regulators
http://www.pco-bcp.gc.ca/raoics-srdc/default.asp?Language=E&page=publications&sub=governmentofcanadaregula#a

Cabinet Directive on Environmental Assessment
http://www.ceaa-acee.gc.ca/016/directive_e.htm

RIAS Writer's Guide
http://www.pco-bcp.gc.ca/raoics-srdc/docs/publications/rias_e.pdf

Standing Joint Committee for the Scrutiny of Regulations
http://www.parl.gc.ca/InfoCom/CommitteeMain.asp?Language=E&CommitteeID=8801&Joint=1

RPMS Compliance Guide
http://www.pco-bcp.gc.ca/raoics-srdc/docs/publications/rpms_e.pdf

Cabinet Directive on Law-making
http://www.pco-bcp.gc.ca/default.asp?Page=Publications&Language=E&doc=legislation/lmgcabinetdirective_e.htm

Regulatory Affairs and Orders in Council Secretariat
http://www.pco-bcp.gc.ca/raoics-srdc/

Canada Gazette Information
http://canadagazette.gc.ca/index-e.html

Treasury Board Submissions Guidelines
http://www.tbs-sct.gc.ca/Pubs_pol/opepubs/TBM_162/siglist_e.html

Benefit-Cost Analysis Guide for Regulatory Programs
http://www.pco-bcp.gc.ca/raoics-srdc/docs/publications/CostBenefitGuideforRegul/CostBenefitGuideforRegul_e.pdf

A Guide to the Making of Federal Acts and Regulations
http://www.pco-bcp.gc.ca/docs/Publications/legislation/lmg_e.pdf

Assessing Regulatory Alternatives
http://www.pco-bcp.gc.ca/raoics-srdc/docs/publications/assessing_reg_alternatives_e.pdf

Standards Systems: A Guide for Canadian Regulators
http://strategis.ic.gc.ca/sc_mrksv/regaff/stdguide/engdoc/Index.html

Voluntary Codes Guide
http://strategis.ic.gc.ca/epic/internet/inoca-bc.nsf/en/ca00880e.html

Requirements for Publication in Canada Gazette, Part I
http://canadagazette.gc.ca/requirements-e.html

Request for Insertion in the Canada Gazette Form
http://canadagazette.gc.ca/insertion.pdf

Orders in Council
http://www.pco-bcp.gc.ca/oic-ddc/

Business Impact Test
http://strategis.ic.gc.ca/

Canadian Environmental Assessment Agency (from this page you can link to the
Cabinet Directive on Environmental Assessment and the guidelines for
implementing the Directive) http://www.ceaa-acee.gc.ca

Other Resources

RAD Publications Site
http://www.pco-bcp.gc.ca/raoics-srdc/default.asp?Language=E&Page=Publications

Consultation Guidelines for Managers in the Federal Public Service
http://www.pco-bcp.gc.ca/raoics-srdc/docs/publications/consultation_guidelines_e.pdf

Cost Recovery and Charging Policy
www.tbs-sct.gc.ca/Pubs_pol/opepubs/TB_H/CRP_e.html 

¹ See Cabinet Directive on Law-Making

² See Checklist at the end of Part B, p. 32

³ A "major" regulation is considered one that costs more than $50M, or costs between $100K and $50M and has a low degree of public acceptance. A "significant" regulation has an annual impact on the economy of $10M or more; or may adversely affects a sector of the economy, productivity, competition, jobs, the environment, public health or safety, provincial, local or Aboriginal governments; or creates a serious inconsistency or otherwise interferes with an action taken or planned by another federal department or agency; or materially alters the authorised levels of departments or budgetary impact of entitlements, grants, user fees, loans programs or the rights and obligations of recipients thereof; or raises novel legal or policy issues arising out of legal mandates or the governments' priorities.

⁴ Blue-stamping is the method the RS(J) uses to show that it has examined the regulations and orders. The stamped version is submitted to ministers of the TB for approval to publish in the Canada Gazette, Part I, and Part II.

⁵ For more detailed information, contact the Regulatory Issues Unit of the Treasury Board Secretariat.

⁶ Draft regulations that go before TB are considered Cabinet confidences for the purposes of the Access to Information Act, the Privacy Act and the Canada Evidence Act.

⁷ If a regulation is stale-dated (i.e., it has been blue-stamped more than two years before the pre-publication submission), the sponsoring department should consult its legal services to ensure that there has been no changes to its enabling legislation during that timeframe.

National Library of Canada cataloguing in publication data

Canada. Privy Council Office. Regulatory Affairs Division

Regulatory process guide [electronic resource] : developing a
regulatory proposal and seekings its approval

Rev. ed.
"This Guide was prepared by the Regulatory Affairs Division, Operations
Branch , Privy Council Office".-Introd.
Electronic monograph in HTML format.
Mode of access: Privy Council Office website (www.pco-bcp.gc.ca)
Issued also in French under title: Guide du processus réglementaire:
élaboration et approbation d'une soumission réglementaire.
ISBN 0-662-36431-7
Cat. no. CP22-75/2004E-HTML

1.  Administrative procedure - Canada - Handbooks, manuals, etc.
2.  Executive orders - Canada - Handbooks, manuals, etc.
3.  Administrative regulation drafting - Canada - Handbooks, manuals, etc.
4.  Legislation - Canada
I.  Title.

JL87.C36 2004                 342.71'066                    C2004-980103-1