Circumstances for Excluding Periods from Time Limits Regulations: SOR/2019-348

Canada Gazette, Part II, Volume 153, Number 25

Registration
SOR/2019-348 December 2, 2019

CANADIAN ENERGY REGULATOR ACT

The Canadian Energy Regulator, pursuant to sections 216, 291.1 and 312.1 of the Canadian Energy Regulator Act ^{footnote a}, makes the annexed Circumstances for Excluding Periods from Time Limits Regulations.

Calgary, November 25, 2019

Katherine Murphy
Chief of Staff and Corporate Secretary, Canadian Energy Regulator

Circumstances for Excluding Periods from Time Limits Regulations

Definitions

1 The following definitions apply in these Regulations.

• Act means the Canadian Energy Regulator Act. (Loi)
• applicant means the applicant for
  • (a) a certificate under subsection 182(1) of the Act;
  • (b) an order under subsection 214(1) of the Act;
  • (c) a certificate under subsection 262(1) of the Act; or
  • (d) an authorization under subsection 298(1) of the Act. (demandeur)
• Commission means the Commission referred to in section 26 of the Act. (Commission)

Exclusion of periods — subsections 183(5) and 214(5) of the Act

2 For the purposes of subsections 183(5) and 214(5) of the Act, the circumstances in which periods may be excluded from the calculation of the time limit under subsection 183(4) or 214(4) of the Act are any of the following:

• (a) the applicant has submitted to the Commission a written request for the exclusion of a period from the calculation of the time limit relating to the report under subsection 183(1) of the Act or the order under subsection 214(1) of the Act;
• (b) the undertaking of studies or the collection of information relating to a change made by the applicant in the design, the construction or the operation of a pipeline, and the resulting effects of the change, if the Commission is of the opinion that there is not sufficient information available to it for the purpose of submitting the report under subsection 183(1) of the Act or making the order under subsection 214(1) of the Act; and
• (c) the applicant has not paid the fees, levies or charges imposed under section 87 of the Act and any interest payable on them in accordance with any of the regulations made under subsection 87(1) of the Act.

Exclusion of periods — subsections 262(6) and 298(6) of the Act

3 For the purposes of subsections 262(6) and 298(6) of the Act, the circumstances in which periods may be excluded from the calculation of the time limit under subsection 262(4) or 298(4) of the Act are any of the following:

• (a) the applicant has submitted to the Commission a written request for the exclusion of a period from the calculation of the time limit relating to the application for a certificate under subsection 262(1) of the Act or for an authorization under subsection 298(1) of the Act;
• (b) the undertaking of studies or the collection of information relating to a change made by the applicant in the design, the construction or the operation of an international or interprovincial power line referred to in subsection 262(1) of the Act or a proposed work or activity referred to in subsection 298(1) of the Act and the resulting effects of the change, if the Commission is of the opinion that there is not sufficient information available to it for the purpose of issuing the certificate or the authorization, as the case may be; and
• (c) the applicant has not paid the fees, levies or charges imposed under section 87 of the Act and any interest payable on them in accordance with any of the regulations made under subsection 87(1) of the Act.

Coming into force

4 These Regulations come into force on the day on which section 10 of An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts, chapter 28 of the Statutes of Canada, 2019, comes into force, but if they are registered after that day, they come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

The Circumstances for Excluding Periods from Time Limits Regulations (the Regulations) pertain to proposed international and interprovincial pipeline and power line projects, and offshore renewable energy and power line projects that would be subject to an assessment by the Commission of the Canadian Energy Regulator (CER) under the Canadian Energy Regulator Act (CER Act). The CER Act provides time limits for issuing a report under CER Act section 183, or an order under CER Act section 214, for international and interprovincial pipelines, a certificate under CER Act section 262 for international and interprovincial power lines, and for an authorization under CER Act section 298 for offshore renewable energy and power line projects. The CER Act provides the authority to develop regulations that provide the circumstances when periods can be excluded from the days counted towards these time limits.

These Regulations are similar to the time management aspects in regulations related to the Impact Assessment Act for assessments conducted by the Impact Assessment Agency of Canada (IAAC) or integrated assessment panels. This provides consistency and predictability across project reviews conducted by the Government of Canada, regardless of the department or agency conducting the assessment.

Background

The CER Act includes time limits for issuing the relevant certificate or authorization:

• for applications for a certificate under section 182 of the CER Act (regarding pipelines that are not designated projects as a result of the Impact Assessment Act), the maximum time limit for submitting a recommendation report to the Minister is 450 days from the day on which the applicant has provided a complete application (CER Act subsection 183(4));
• for applications for an exemption order under section 214 of the CER Act (regarding pipelines that are not designated projects as a result of the Impact Assessment Act), the maximum time limit for making the order or dismissing the application is 300 days from the day on which the applicant has provided a complete application (CER Act subsection 214(4));
• for applications for a certificate under section 262 of the CER Act (regarding international and interprovincial power lines), the maximum time limit for issuing the certificate or dismissing the application is 300 days from the day on which the applicant has provided a complete application (CER Act subsection 262(5)); and
• for applications for an authorization under section 298 of the CER Act (regarding offshore renewable energy and power line projects), the maximum time limit for issuing the authorization or dismissing the application is 300 days from the day on which the applicant has provided a complete application (CER Act subsection 298(5)).

CER Act section 216 provides authority for regulations prescribing the circumstances in which the Lead Commissioner, under subsections 183(5) and 214(5) of the CER Act, may specify that a period is to be excluded from the calculation of the time limit within with the Commission must make its decision.

CER Act section 291.1 provides authority for regulations prescribing the circumstances in which the Lead Commissioner, under subsection 262(6) of the CER Act, may specify that a period is to be excluded from the calculation of the time limit within which the Commission must make its decision.

CER Act section 312.1 provides the authority for regulations prescribing the circumstances in which the Lead Commissioner, under subsection 298(6) of the CER Act, may specify that a period is to be excluded from the calculation of the time limit within which the Commission must make its decision.

Objective

The objective of the Regulations is to provide the circumstances when periods may be excluded from the calculation of time limits under sections 183, 214, 262 and 298.

Description

The Regulations provide the circumstances when time periods may be excluded from the calculation of the time limits set in the CER Act.

For applications under CER Act sections 182 and 214, the circumstances are the following:

• (a) the applicant has submitted to the Commission a written request for the exclusion of a period from the calculation of the time limit relating to the report under subsection 183(1) of the CER Act or the order under subsection 214(1) of that Act;
• (b) the undertaking of studies or the collection of information relating to a change made by the applicant in the design, the construction or the operation of a pipeline, and the resulting effects of the change, if the Commission is of the opinion that there is not sufficient information available to it for the purpose of submitting the report under subsection 183(1) of the CER Act or making the order under subsection 214(1) of that Act; and
• (c) the applicant has not paid the fees, levies or charges imposed under section 87 of the CER Act any interest payable on them in accordance with any of the regulations made under subsection 87(1) of that Act

For applications under CER Act sections 262 and 298, the circumstances are the following:

• (a) the applicant has submitted a written request to the Commission, asking for the exclusion of a period relating to the application for a certificate under subsection 262(1) of the CER Act or an authorization under subsection 298(1) of that Act from the calculation of the time limit;
• (b) the undertaking of studies or the collection of information relating to a change made by the applicant in the design, the construction or the operation of an international or interprovincial power line referred to in subsection 262(1) of the CER Act or a proposed work or activity referred to in subsection 298(1) of that Act and the resulting effects of the change, if the Commission is of the opinion that there is not sufficient information available to it for the purpose of issuing the certificate or the authorization, as the case may be; and
• (c) the applicant has not paid the fees, levies or charges imposed under section 87 of the CER Act and any interest payable on them in accordance with any of the regulations made under subsection 87(1) of that Act.

The CER Act provides that, in the circumstances provided in the Regulations, the Lead Commissioner may specify that a period is to be excluded from the calculation of the time limit within which the Commission must make its decision or recommendation, and must provide the reasons for the excluding that period.

Regulatory development

To meet the Government’s objective to implement the new impact assessment process by summer 2019, an exemption was granted from the regulatory policy requirement to publish draft regulations in the Canada Gazette, Part I, to provide stakeholders with an opportunity to provide feedback on the regulatory details. In its place, a consultation paper with the draft proposed text for the Regulations was provided for comment between May 8, 2019, and June 7, 2019.

The consultation paper was posted on Natural Resources Canada’s (NRCan) web page A New Canadian Energy Regulator, with a link to the National Energy Board’s (NEB) website. Notifications regarding the comment period were sent by NRCan to Indigenous groups and organizations across Canada and to a broad group of stakeholders across Canada, including the energy sector and related industry associations; provincial, territorial and municipal governments; provincial regulators; and other interested individuals and organizations. The notifications provided contact information for anyone seeking to address questions or clarification on the consultation paper.

During the comment period, a request was received from the NEB-coordinated multi-stakeholder Land Matters Group (LMG) for an overview of the consultation paper and the draft Regulations. A presentation was provided on the draft Regulations, and questions related to how the Regulations would function were addressed.

In total, 12 submissions were received on the consultation paper, including comments from Indigenous groups, industry associations, and regulated companies. An additional comment, unrelated to the Regulations, was received from a private individual. Comments related to the Regulations are addressed below.

Comments regarding proposed circumstances for excluding periods from time limits

The provision of clearly defined circumstances for determining when periods are to be excluded from the calculation of legislated time limits was generally supported.

Industry commenters referred to paragraph 2(b) of the Regulations, noting that a qualification should be put on the type of changes in an application for which studies or additional information may be required such that the circumstance could only be triggered when there are significant changes to a project’s design, construction, or operation made by the applicant. Industry commenters asserted that minor changes, of the type that routinely occur during an application assessment, should not be sufficient to warrant excluding a period from the calculation of legislated time limits.

If the applicant makes a change in an application related to the design, construction or operation of the project, the Commission is obliged to consider the potential impacts, under subsections 183(2), 262(2), and 298(3) of the CER Act. Although minor changes will not likely affect the Commission’s ability to assess the application, in some cases, they may. Qualifying the type of change for which studies or the collection of information are required may not allow the Commission to fulfill its obligation. Accordingly, no changes were made to the Regulations based on these comments.

Comments regarding participation by Indigenous peoples

Indigenous groups noted that the time limits set in the CER Act may affect the ability of Indigenous peoples to participate in project reviews and to assess impacts on rights, and recommended including a provision that would allow excluded periods from the time limit for the consideration of potential impacts on Indigenous rights.

An Indigenous commenter expressed concern about the Regulations with respect to allowing exemptions from detailed route hearings that the Commission may conduct under sections 201 to 207 of the CER Act. The Regulations do not apply to the timing of detailed route hearings.

Once an applicant has submitted an application to the Commission, the CER Act requires that the Commission review the application and consider the potential impacts of proposed projects on the rights, interests and concerns of the Indigenous peoples of Canada (subsections 183(2), 262(2), and 298(3)). In considering these impacts, the Commission must further respect the rules of procedural fairness and natural justice.

These Regulations identify the circumstances when the Commission cannot proceed or continue with assessing the project that was submitted by the applicant, such as when the applicant makes a change to the application that potentially affects the impact of the project. This consideration, and the Commission’s contemplation of whether or not to provide a time exemption, includes examining the rules of procedural fairness and natural justice in the context of that specific hearing process. If there are any concerns on a specific file regarding the impacts of an excluded period on the parties to that proceeding, then the Commission will be required to speak to it in their decision. Accordingly, no changes were made based on these comments.

Extension of time limits

Indigenous and industry commenters requested the provision of requirements for how extensions to the time limits provided in the CER Act would be managed, as opposed to the suspension of an unchanged time limit per these Regulations.

The CER Act does not provide the authority to make regulations related to extending time limits set in the CER Act. It provides that the Minister may, by order, grant one or more extensions of the time limits specified in the legislation (subsections 183(6), 214(6), 262(7), and 298(7)).

No changes were made to the Regulations following the comments received.

Modern treaty obligations and Indigenous engagement and consultation

The Regulations are not expected to impact the section 35 rights of Indigenous peoples, modern treaties, or international human rights obligations.

Instrument choice

A regulation was chosen as the CER Act provides the authority to create regulations for managing time limit excluded periods. Non-regulatory options are not feasible as they would not provide the same clarity, certainty, and predictability for applicants, stakeholders, and Indigenous groups.

Regulatory analysis

Benefits and costs

The Regulations are not expected to have any costs for business, consumers, Canadians, or government. The Regulations do not create any new administrative burden for businesses or Canadians, nor do they create any new costs for government. This proposal only manages when periods can be excluded from the calculation of time limits set in the CER Act. Any costs associated with resuming an assessment process, after an excluded period of time, such as carrying out studies to assess the impacts of a project design change, would need to be incurred regardless of whether there is a regulation specifying what circumstances warrant excluding a period from the calculation of the time limits set in the CER Act.

This proposal creates predictability for Canadians, businesses, consumers, and government by clearly specifying the circumstances in which a period can be excluded from the calculation of time limits set in the CER Act for providing for a certificate or an authorization for a proposed project. Greater predictability around the project approval process will not increase costs and could potentially reduce costs by allowing businesses to plan accordingly.

Small business lens

The small business lens does not apply to the Regulations.

One-for-one rule

There are no incremental administrative requirements associated with the Regulations; as a result, the one-for-one rule does not apply.

Regulatory cooperation and alignment

This proposal is not related to a work plan or commitment under a formal regulatory cooperation forum.

Strategic environmental assessment

In accordance with The Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.

Gender-based analysis plus

No gender-based analysis plus (GBA+) impacts have been identified for the Regulations.

Rationale

The circumstances in the Regulations for excluded periods from time limits set in the CER Act are those when the Commission cannot proceed or continue with reviewing the project that was submitted by the applicant. This may occur when

• the applicant submits a written request for an excluded time period to the Commission;
• when the applicant makes a change to the design, construction or operation of the project submitted in the application, and studies or information are required related to the impact of that change; or
• the applicant has not paid charges due pursuant to the Regulations made under subsection 87(1) of the CER Act.

The CER Act provides that the Lead Commissioner may, based on these circumstances, specify that a period is to be excluded from the calculation of the time limits as set in the CER Act.

Implementation, compliance and enforcement, and service standards

The Regulations come into force when the CER Act comes into force. There are no new service standards created by the Regulations.

Contact

Joel Allan
Regulatory Policy Team
Canadian Energy Regulator
517 Tenth Avenue SW, Suite 210
Calgary, Alberta
T2R 0A8
Email: joel.allan@cer-rec.gc.ca

General information
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