Counting Administrative Burden Regulatory Requirements

Table of Contents

1. Purpose

This guide provides detailed guidance on how departments and agencies (hereinafter referred to as departments) should identify, count and report on administrative burden requirements in their regulations. The Administrative Burden Baseline (ABB) initiative requires departments to establish a baseline count of federal regulatory requirements that impose administrative burden on business. In addition, the count of baseline requirements must be updated and publicly reported annually.

2. Effective Date

This guide takes effect immediately upon distribution to departments.

3. Background

In , the government announced the launch of the Red Tape Reduction Commission (RTRC). The Commission was asked to identify irritants to business stemming from federal regulatory requirements and to provide recommendations to reduce the burden of regulations on businesses, both at a specific and systemic level.

On , the Government of Canada released the Red Tape Reduction Action Plan (RTRAP) report. This action plan details the systemic regulatory reforms the government is implementing to address the Commission’s Recommendations Report.

One of the commitments made in the RTRAP is to refresh, by , the part of the Paperwork Burden Reduction Initiative (PBRI) inventory which identified requirements in federal regulations that impose administrative burden on business. Additionally, the commitment states that once updated, this information will be refreshed and reported publicly every year.

The PBRI was a federal initiative led by Industry Canada whose goal was to relieve small and medium-sized enterprises of excessive administrative and compliance burden stemming from statutes, regulations, policies and forms with which businesses must comply.

The PBRIFootnote 1 created a baseline count of administrative requirements and information obligations as they existed on . The ABB initiative differs from the PBRI in that its sole focus is on establishing and maintaining a count of the administrative burden requirements in federal regulations, forms in regulations, and forms directly associated with those regulations. In this way, the ABB complements the government’s “One for One” Rule by ensuring transparency of the count of regulatory administrative burden on business.

Canadians and businesses deserve to have clear, credible information on the extent to which requirements that impose administrative burden are present in various federal regulations and how these requirements evolve over time. The creation and ongoing maintenance of the Administrative Burden Baseline responds to this imperative and, as such, contributes to the openness and transparency of the federal regulatory system.

4. Scope

The scope of the ABB initiative includes all Governor in Council (GIC) and non-GIC regulations including related forms in 36 federal departments and agencies (refer to Appendix 1) with requirements that impose administrative burden on business. The baseline count of administrative burden requirements is based on departments’ or agencies’ stock of regulations as of .

5. DefinitionsFootnote 2

5.1. Regulation

A regulation is an instrument registered as a Statutory Order and Regulation (SOR) under the Statutory Instruments Act and the Statutory Instruments Regulations. It includes both GIC and non-GIC regulations.

5.2. Governor in Council regulation

A GIC regulation is one that is made by or requires the approval of the GIC. The GIC is the Governor General acting with the advice of the Queen's Privy Council for Canada (the "Council" or Cabinet). Treasury Board (Part B) plays the role of the Committee of Council that advises the Governor General on the making or approval of GIC regulations.

5.3. Non-Governor in Council (non-GIC) regulation

A non-GIC regulation is made by a Minister or another regulatory entity without the need for approval by the GIC. This authority has been conferred on the Minister or other regulatory entity by an act of Parliament.

5.4. Regulatory change

For the purposes of this guide, a regulatory change means a new regulation, an amendment to an existing regulation, or the removal of an existing regulation.

5.5. Regulatory requirement

A regulatory requirement is a compulsion, obligation, demand or prohibition placed on a business, its activities or its operations through a GIC or non-GIC regulation. A requirement may also be thought of as any obligation that a business must satisfy to avoid certain consequences (e.g., fines, penalties, charges, delays in approvals, etc.). In the context of ABB, all those regulatory requirements, including obligations on related forms, imposing administrative burden are in scope.

5.6. Administrative burden

Administrative burden includes planning, collecting, processing and reporting of information, completing forms and retaining data required by the federal government to comply with a regulation. This includes filling out license applications and forms, as well as finding and compiling data for audits and becoming familiar with information requirements. Appendix 2 provides a list of administrative burden activities as identified in the Guide on the “One for One” Rule.

5.7. Business

A business is understood to be an enterprise that operates in Canada and engages in commercial activities related to the supply of services or property (which includes goods). A business does not include an organization that engages in activities for a public purpose (i.e., social welfare or civic improvement), such as a provincial or municipal government, a school, a college or university, a hospital or charity.

6. Count of Administrative Burden Requirements: Baseline and Updates

This section describes:

  1. how to determine whether a regulatory requirement should be counted;
  2. selected types of requirements that departments may encounter;
  3. how to deal with regulations where the design, implementation or enforcement are shared by two or more departments; and,
  4. steps and considerations to follow in updating the count of requirements.

6.1. Administrative Burden Baseline Requirements: A three-part test

As a first step in the establishment of a departmental baseline count, departments must create a list of in-scope regulations (see section 4 “Scope”) and identify the various requirements imposed by the regulations. Regulatory requirements generally use directive words or phrases such as “shall”, “must”, and “is to”, etc. The list below provides key words or phrases associated with regulatory requirements that may help with the identification of requirements. However, this list should not be treated as exhaustive. Not all requirements that should be counted will contain these words. For example, a regulation may state that “the report will contain the following information” instead of “the report shall contain the following information”. Strict reliance on these key words alone will understate the count of requirements that impose administrative burden. The under-counting of requirements is particularly likely if the count is limited to “shall(s)” and “must(s)”. Further, some of the words may not involve any compulsion to do anything at all. Only a careful reading of the regulation will enable departments to accurately determine which of their regulatory requirements impose administrative burden on business.

List of Key Words or PhrasesFootnote 3 that can be used to identify regulatory requirements

  • “must”
  • “must not”
  • “shall”
  • “shall…not”
  • “may”
  • “may…not”
  • “is to be”
  • “is required”
  • “is prohibited”
  •  “is to (have)”
  • “is to (ensure)”
  • “is obliged”
  • “is under an obligation”
  • “is entitled to”
  • “has the right to”
  • “is required to”

Once requirements from regulations have been identified, each requirement should be subjected to a three-part test (Figure 1). Part I of the test determines whether the requirement affects business. Part II of the test identifies whether the requirement imposes any burden (compliance or administrative) on business and Part III of the test determines whether the burden is administrative in nature, i.e., whether it meets the definition of administrative burden as noted in section 5.6 of this Guide.

Figure 1: How to determine whether a regulatory requirement should be counted: A three-part test
Flow chart to determine whether a regulatory requirement should be counted. Text version below:
Figure 1 - Text version

The flow chart helps determine whether a regulatory requirement should be counted by asking three questions.

(1) Does the requirement affect business?

  • If no, stop
  • If yes, then go to Part II and ask:

(2) Does it impose any burden on business?

  • If no, stop
  • If yes, then go to Part III and ask:

(3) Is the burden administrative in nature?

  • If no, stop
  • If yes, include the requirement in the count of regulatory requirements imposing administrative burden on business.

6.2. Counting complex requirements

Some regulatory requirements are easy to identify as containing administrative burden. However, there are requirements that are more complex or more ambiguous. They may have sub-requirements, qualifiers, offer options, or may contain voluntary actions, etc. This section describes some of the more complex types of requirements that departments may encounter and how they should be addressed in establishing and updating the count.

Requirement with sub-requirements

When a requirement contains sub-requirements, these should be counted as requirements in their own right if they impose administrative burden.

For example, provision 12 of the General Nuclear Safety and Control Regulations states the following:

“Every licensee who receives a request from the commission or a person who is authorized by the Commission for the purpose of this subsection, to conduct a test, analysis, inventory or inspection in respect of the licensed activity or to review or to modify a design, to modify equipment, to modify procedures or to install a new system or new equipment shall file, within the time specified in the request, a report with the Commission that contains that following information:

  1. Confirmation that the request will or will not be carried out or will be carried out in part;
  2. Any action that the licensee has taken to carry out the request or any part of it;
  3. Any reasons why the request or any part of it will not be carried out;
  4. Any proposed alternative means to achieve the objectives of the request; and,
  5. Any proposed alternative period within which the licensee proposes to carry out the request.”

As this example demonstrates, this excerpt of the regulations contains six requirements. The main requirement is to send a report. However, a report that misses any one of the five elements could be rejected. The five elements are thus sub-requirements that should be counted in addition to the reporting requirement itself.

Requirements with options

When a requirement offers multiple options to regulatees, only one option shall be included in the count since only one course of action needs to be taken to satisfy the requirement. For example, a regulation may specify that the regulatee must send some report either electronically or by regular mail to the regulator. In this case, only one requirement is counted because the regulatee has a choice of how to send the report.

Requirements with qualifiers

Some requirements have qualifiers attached to them. Qualifiers often specify how a particular action in the regulation shall be carried out. For example, a regulation may specify that a business must notify, in writing, that some action has been undertaken. The qualifier, in writing, is not counted as a separate requirement since the requirement to notify is already being counted. The specification of “in writing” simply describes how the notification shall be done. It is important to note that the qualifier would be very important if the goal was to monetize the administrative burden associated with that requirement under the “One for One” Rule.

Requirements with voluntary actions

Regulatory requirements may specify a number of actions with some being voluntary, i.e., businesses do not have to carry out the action. For example, a regulation may state that in addition to the required annual report, the regulatee may send any other information they consider useful in interpreting the report. Even though this voluntary action may impose administrative burden, the regulatee has a choice to undertake the activity. For this reason, voluntary actions are not counted as requirements under the ABB.

Requirements in forms and schedules associated with regulations

Regulatory requirements may direct businesses to use forms or templates contained in one or more schedules of a regulation which require business to provide information. Departments may also develop forms which are not explicitly mentioned in a regulation but are used to provide information required to administer the regulation. Each piece of data required on such forms, schedules or templates must be counted as a separate requirement. For example, a form requiring a company to provide its registration number, its telephone number and a company official signature contains three requirements. The number of forms/templates/ schedules themselves that a business will have to submit will not be counted as separate requirements.

Requirements referenced in external documents

If a regulation incorporates requirements by reference, such requirements must be included in the count if they impose administrative burden on business. As well, if an external standard that is incorporated by reference changes and the new standard contains additional requirements that impose administrative burden on business, any such new requirements should be added to the department’s count.

Requirements in registered, but not yet published regulations

Regulations that have been registered and are in force on June 30, 2014, but not yet published in Canada Gazette, Part II, should be counted as part of the department’s stock of regulations.

A regulation with administrative burden requirements may be assigned a coming into force date that is subsequent to its final publication and registration date. In such cases, the requirements should not be added to a department’s count until they come into force, since there is no burden on business until compliance is legally required.

6.3. Regulations with shared responsibility by two or more departments

There are cases where two or more departments have shared responsibility for a regulation and their ministers jointly sponsor related regulatory changes. For example, Health Canada and Environment Canada are jointly responsible for assessing toxic substances under the Canadian Environmental Protection Act, 1999. Similar to the approach taken for the One-for-One Rule, the department that plays the lead role in designing and administrating the regulations is responsible for the count.

In cases where the administration of the regulation is shared by more than one department, the department whose minister sponsored the regulation when it was passed or last modified is responsible for the count of the administrative burden requirements in the regulation. If a department has sole responsibility for sponsoring a regulatory change while another has exclusive control over the administration of the regulation, the administrative burden requirements should be counted by the department with authority to sponsor the regulation.

In all cases, affected departments are expected to consult one another in order to avoid overlap or double counting.

6.4. Updating the baseline count

Once the baseline count has been established, the count of administrative burden regulatory requirements must be updated annually. In addition to the government’s Red Tape Reduction Acton Plan commitment, there are two further reasons why the count will need updating:

  1. new regulations are introduced that add administrative burden on business or that repeal existing regulations containing administrative burden requirements; and,
  2. amendments to existing regulations can add or eliminate administrative burden requirements.

Certain regulatory changes may be “carved out” from the “One for One” Rule, even if they impose administrative burden on business. Regardless of their treatment under Rule, these regulations are subject to the ABB and the requirements that impose administrative burden on business must be included in the count and annual updates.

It is recommended that departments update their count continuously as regulations are published in the Canada Gazette, Part II.

The Treasury Board of Canada Secretariat-Regulatory Affairs Sector (TBS-RAS) has developed a tool, the “One for One”/ABB Tracker, to assist departments with establishing their initial baseline count. The tool will enable departments to simultaneously track their implementation of the “One for One” Rule and maintain an up-to-date count of their administrative burden requirements in regulations. The tool:

  • tracks final and proposed regulations to measure current and estimate future compliance under the Rule;
  • captures the administrative burden requirements for regulations under the ABB initiative;
  • integrates the management of the Rule and the ABB by allowing users to more easily identify OUTs to reconcile INs under the Rule by consulting a “library” of administrative burden requirements;
  • continuously updates the ABB when a regulation triggers the Rule by either adding or removing associated administrative burden requirements; and,
  • reports information on the Rule and ABB in TBS required formats.

When changes to the count are stored in the ABB tracker, the department’s library of administrative regulatory requirements will be automatically updated.

It is mandatory for departments to use the “One for One”/ABB Tracker to establish their initial 2014 count. This will help ensure consistency in organization of the data and of evidence to support the government-wide baseline count. In subsequent years, departments are strongly encouraged to use the tool to track and update their counts.

7. Monitoring, Reporting and Accountability

In fall 2014, departments must send to TBS-RAS their 2014 baseline count. Once the 2014 baseline count is posted on departmental Acts and Regulations web pages, they must keep a web link to their baseline count, along with an online posting of the count as of September 30th for the current calendar year. Departments are required to make the count for previous years available upon request.

Departments will need to add an Administrative Burden Baseline link on their Acts and Regulations Web page (refer to Appendix 3). In terms of posting their count, the mandatory web content and layout is described in Appendix 4. The web content and layout must include the total count for the department, as well as the count by regulation for all regulations with administrative burden requirements. This new page must adhere to government web accessibility requirements. To allow year-to-year comparisons, departments should also explicitly indicate that data for past years is available upon request by emailing the ABB contact for the department.

By using the using the One-for-One/ABB Tracker tool, departments will be able to automatically generate the required content for Appendix 4. Once approved by Deputy Heads, departments will submit their completed One-for-One/ABB Tracker tool for the initial 2014 baseline count to TBS-RAS as evidence that the baseline count has been completed. There is no requirement for departments to submit to TBS-RAS their count updates in subsequent years, as results will be posted on their Acts and Regulations webpages.

Accountability for the completeness and the accuracy of the count rests with departments.

8. Timelines

Departments are expected to send to TBS-RAS their baseline count by fall, 2014. Annual updates to the count will be completed and posted by departments on September 30th of each subsequent year.

The first annual update to the count will be completed and posted no later than . Future updates will reflect the change in the baseline count between July 1st and June 30th of each subsequent year.

9. Roles and responsibilities

9.1. Departments

Departments are responsible for the completeness and the quality of the baseline count and its updates. In particular, they are accountable for the following:

  1. counting administrative burden requirements on business in their regulations;
  2. coordinating with other departments in situations where regulations are shared;
  3. the quality of the baseline count and the annual update of the count;
  4. creating on their Acts and Regulations Web pages an ABB link (refer to Appendix 3) that will lead to the Administrative Burden Baseline landing page (refer to Appendix 4);
  5. keeping and maintaining the evidence underlying their count of regulatory requirements; and,
  6. posting the initial 2014 baseline count, the annual update count (including the count of administrative burden requirements by regulation) on their Acts and Regulations Web page.

9.2. Treasury Board of Canada Secretariat

TBS is responsible for overseeing the implementation of the ABB count and its annual update. In particular, TBS is to:

  1. provide implementation guidance and the One-for-One/ABB TrackerFootnote 4 tool to departments;
  2. monitor the reporting of the count on departmental Acts and Regulations Web pages; and,
  3. publicly report the government wide count.

10. Contact Information

Treasury Board of Canada Secretariat
Strategic Communications and Ministerial Affairs
L’Esplanade Laurier, 9th Floor, East Tower
140 O’Connor Street
Ottawa, ON K1A 0R5
Telephone: 613-957-2400
Toll-free: 1-877-636-0656
TTY: 613-957-9090
Facsimile: 613-941-4000

TBS Public Enquiries
Regulatory Affairs Sector

Appendix 1. Departments Included in the Count

Thirty-six (36) departments or agencies are subject to the ABB count and update. These are as follows:

  1. Agriculture and Agri-Food Canada
    1. Canadian Grain Commission
    2. Canadian Pari-Mutuel Agency
    3. Farm Products Council of Canada
  2. Aboriginal Affairs and Northern Development Canada
    1. Indian Oil and Gas Canada
  3. Canadian Heritage
  4. Canada Revenue Agency
  5. Citizenship and Immigration Canada
  6. Department of Foreign Affairs, Trade and Development
  7. Department of Fisheries and Oceans
  8. Employment and Social Development Canada
    1. Labour Program
  9. Environment Canada
    1. Parks Canada
    2. Canadian Environmental Assessment Agency
  10. Finance Canada
    1. Office of the Superintendent of Financial Institutions
  11. Health Canada
    1. Public Health Agency of Canada
    2. Patented Medicine Prices Review Board
    3. Canadian Food Inspection Agency
  12. Industry Canada
    1. Competition Bureau
    2. Copyright Board Canada
    3. Canadian Intellectual Property Office
    4. Statistics Canada
  13. Natural Resources Canada
    1. Canadian Nuclear Safety Commission
    2. National Energy Board
  14. Public Safety and Emergency Preparedness
    1. Canada Border Services Agency
  15. Public Works and Government Services
  16. Treasury Board of Canada Secretariat
  17. Transport Canada
    1. Canadian Transportation Agency

Appendix 2. List of Activities Considered to be Administrative Burden.

Returning and reporting or submitting information

In cases where compliance with an information obligation requires the submission of information on the business, the information must be sent to the federal government.

Authorizations

Completing an application seeking permission for or exemption from the federal government from activities, including applications for authorization to carry out activities. In general, this does not include pre-market approval processesFootnote 5 (e.g., pharmaceuticals, medical devices, pesticides, telecommunication devices and other goods) because the costs associated with these processes are generally considered to be compliance costs.

Notification of activities

This relates to businesses having to notify the federal government of activities.

Familiarization with the information obligation:

The resources spent by businesses to familiarize themselves with a given federal government information obligation. This would apply only to regulatory changes that represent a strong deviation from current practice.

Information retrieval

Retrieving the relevant figures and information needed to comply with a given federal government information obligation.

Calculation, assessment and checking

Performing the necessary calculations, assessment of information and checking of calculated figures to ensure that the information is accurate.

Meetings

Includes meetings held internally between the various personnel groups involved in complying with the information obligation. Also includes external meetings held in cases where compliance with the information obligation requires meetings with an auditor, lawyer or the like.

Copying, distribution, filing, etc.

In some cases, the report is copied, distributed or filed in order to comply with a federal government obligation.

Enforcement, audits and inspections

This relates to informing and assisting federal government inspectors who carry out inspections of and auditing work for a business, or who visit a business in connection with enforcement of a regulation. This should be calculated only if the requirements (e.g., number of inspections per year) are included in the regulation.

Appendix 3. Updating the Departmental Acts and Regulations Web Page

On the existing Departmental Acts and Regulations Web page, under the heading “What are we doing?” and above Departmental Actions to respond to the Red Tape Reduction Commission’s Recommendations Report add a link to the Administrative Burden Baseline landing page.

Appendix 4. Web Content for the Administrative Burden Baseline Landing Page

The following is the mandatory web content and layout for the departmental Administrative Burden Baseline Landing Page. Content in bold between brackets < > is provided by departments.

Administrative Burden Baseline

In its Red Tape Reduction Action Plan, the Government committed to build on the efforts of the Paperwork Burden Reduction Initiative by requiring departments, through the Administrative Burden Baseline, to provide a count of the requirements in federal regulations that impose an administrative burden on business.

All federal regulations that are administered by <Insert Department> that have requirements that impose administrative burden on business are identified below. The total <Insert year> count is <Insert the total count for the year>. The total baseline count is <Insert the total baseline count and provide link to the baseline count>.

<Insert observations/context for the count here if deemed necessary>

<Enter information for the ABB count in a table format using the following column headings

Title of the regulation
SOR Number
<Insert year> Count
And provide a total count in the last row>

Previous years’ counts for <insert department name> are available upon request.

Contact

<Insert Name>
<Insert Department>
<Insert Address>
<Insert Telephone Number>
<Insert Email>

For more information:

To learn about upcoming or ongoing consultations on proposed federal regulations, visit the Canada Gazette and Consulting with Canadians websites.

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