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Regulatory Reform Series – Forward Regulatory Plans

This post is part of an ongoing series on the Government of Canada’s regulatory reform efforts. This post will discuss forward regulatory plans.

Forward Regulatory Plans

In 2012, the Government of Canada committed to “give Canadians, business and trading partners greater opportunity to inform the development of regulations and to plan for the future” by requiring departments to publicly post forward regulatory plans of “anticipated regulatory changes that a regulator intends to bring forward over a 24 month period.”1

International Context

The Organization for Economic Cooperation and Development’s (OECD) “Recommendation of the Council on Regulatory Policy and Governance” (OECD, 2012) “sets out the measures that Governments can and should take to support the implementation and advancement of systemic regulatory reform to deliver regulations that meet public policy objectives and will have a positive impact on the economy and society.” From these recommendations came a call to governments to be more open and transparent in the regulatory process.  Many jurisdictions have implemented or improved existing mechanisms of notifying businesses and the public of planned regulatory actions.  For example, the United States’ regulatory oversight body, the Office of Information and Regulatory Affairs maintains the Unified Agenda which “provides uniform reporting of data on regulatory and deregulatory activities under development throughout the Federal Government” 2 The US does a great job of providing two major portals: reginfo.gov for forward regulatory planning and ex-post facto regulatory review and regulations.gov for stakeholders to review and comment on proposed regulations.

Canada’s Implementation

One of Canada’s solutions to increasing transparency and predictability in the regulatory sphere is the Forward Regulatory Plan (FRP).  Departments and agencies are required to post planned regulatory actions which are expected to be completed in a 24-month period to the “Acts and Regulations” section of their public website.  The posting is governed by a specific template which includes the following elements3:

  • Title or Working Title of the Regulatory Initiative
  • DescriptionConcise description of the regulatory initiative including the objective and the enabling Act.
  • Indication of Business ImpactsOne of two pre-determined statements on whether there are expected impacts to business.
  • Public Consultation OpportunitiesHow and when will Canadians be consulted.
  • Departmental ContactContact information to reach a specific contact who should be able to deal with questions personally.

The Forward Regulatory Plan is posted annually on April 1st and formally updated October 1 of every year.  As a best practice, departments and agencies make updates to the Forward Regulatory Plan on an ad hoc basis as changes occur, such as when consultation opportunities arise or are concluded.

Departments and agencies are responsible for maintaining a section of their public website devoted to Forward Regulatory Plan (e.g. Canada Border Services Agency Forward Regulatory Plan 2017-2019).  Treasury Board of Canada Secretariat hosts a list of all available Forward Regulatory Plans by providing links to the department and agencies’ FRPs.

Assessment of Current Implementation

What is working well?

  • FRPs Improve transparency and gives stakeholders earlier notice of proposed regulatory actions.
  • The Public Consultation Opportunities section provides early notice of upcoming consultation opportunities
  • Allows interested parties who may not be captured in stakeholder communications to learn of proposed regulatory actions.
  • The requirement that the Departmental Contact be a specific contact who can personally answer questions related to the initiative reduces the frustration in trying to determine who to reach with respect to planned regulatory changes.
  • Departmental hosting of Forward Regulatory plan reduces time and complexity in posting and updating the FRP.

Potential issues that should be addressed

  • Distributed hosting of Forward Regulatory Plan data as websites makes any form of aggregation, categorization, or searching across departments and agencies nearly impossible.
  • Distributed hosting implies that stakeholders will be aware of which agencies are responsible for any regulatory areas they are interested in.  Sometimes several agencies regulate a given sector (e.g. Immigration, Refugees, and Citizenship Canada and the Canada Border Services Agency jointly administer many aspects of the immigration sector, but a stakeholder may not think to check planned regulations at the CBSA when trying to determine the planned regulatory changes related to immigration.
  • The TBS-hosted list relies on agencies and departments updating them when URLs change.  As this doesn’t always happen, there are often inaccessible (HTTP 404) FRPs linked in the list.
  • Once the regulations are published, the regulatory initiative is removed from the forward regulatory plan, but plans may also be removed if priorities or regulated sectors change and an initiative is no longer needed.  Users of the Forward Regulatory Plan have no indication as to what happened to an initiative.

Recommendations

  • Centralized hosting of all FRPs on the TBS website would eliminate many of the issues identified above.  It would allow a single portal to be developed which would facilitate searching by department/agency, subject, regulation being amended, enabling authority, or even by subject (FRPs could be tagged with subjects to assist with this).
  • Moving to a better data model for FRP data (such as a simple XML-based model). To retain the ease of control/updating, departments could post the XML which would be aggregated by TBS and stored in a database which would be the backend for the regulatory planning portal.  Additionally, the XML schema I propose links into the XML schema used by the Department of Justice for posting legislation.  This would allow closer integration between proposed changes and existing legislation.  Without needing to implement an XML or other machine-readable solution, TBS could start by centralizing the hosting of Forward Regulatory Plans and require submission from departments in a strict format to allow easy importing into a database.
  • As we begin to use Consulting with Canadians more often, we should ensure that consultation opportunities are linked to in the FRP AND that the consultation on Consulting with Canadians links back to the FRP.
  • We should “close the loop” on FRPs, updating them to identify them as published, cancelled, etc.  Initiatives could be viewed by status and there would be a historical record of an agency or department’s planning versus actual performance improving accountability.  Additionally, when regulations are published, the Forward Regulatory Plan could be updated with a link to the published changes.
  • Going forward we should look at creating virtual “dockets” as with the US model where all details about a regulatory initiative from early planning, through implementation and including ex-post facto review are viewable in one place.

Conclusion

Canada is doing exceptionally well with regards to regulatory transparency, the OECD ranked Canada 3rd for Stakeholder Engagement and Transparency in developing subordinate legislation in 20154 behind only Mexico and the United States.  That majority of my suggestions revolve around improving the accessibility and transparency through the adoption of technology that would vastly improve the user experience.  As regulators we often focus on the known stakeholder groups.  Our goal should be to ensure that everyone who might be impacted, or even interested in potential regulatory changes is able to quickly and easily identify planned regulatory initiatives.

I’m interested to hear any comments or thoughts you have on our current model, my assessment and recommendations, or anything else related to forward regulatory planning. The next post in my series covers the One-for-One Rule.

  1. Canada. Treasury Board of Canada Secretariat. Red Tape Reduction Action Plan, 2012.
  2. United States. Office of Information and Regulatory Affairs. About the Unified Agenda, 2017.
  3. Canada. Treasury Board of Canada Secretariat. Guide on Forward Planning and Related Measures to Improve the Transparency and Predictability of the Federal Regulatory System, 2012.
  4. Arndt, C., et al.  (2015), “2015 Indicators of Regulatory Policy and Governance: Design, Methodology and Key Results”, OECD Regulatory Policy Working Papers, No. 1, OECD Publishing, Paris.
    http://dx.doi.org/10.1787/5jrnwqm3zp43-en
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