Canada Gazette, Part I, Volume 158, Number 50: Export Applications (Licences and Permits) Regulations

December 14, 2024

Statutory authority
Canadian Energy Regulator Act

Sponsoring agency
Canadian Energy Regulator

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

When the Canadian Energy Regulator Act (CER Act) replaced the National Energy Board Act (NEB Act), a new export and import regulatory framework was created. As a result, four National Energy Board regulations made under the NEB Act, that is the National Energy Board Act Part VI (Oil and Gas) Regulations (NEB Part VI Regulations), National Energy Board Electricity Regulations (NEB Electricity Regulations), National Energy Board Export and Import Reporting Regulations (NEB Reporting Regulations), and Toll Information Regulations, need to be repealed and replaced with new regulations, reflecting the regulation making authorities set out in the CER Act.

Regulatory amendments are also necessary to address circumstances where requirements to provide information in applications are no longer reflective of the CER Act. The CER Act narrowed the scope of matters the Canada Energy Regulator (CER or Regulator) considers in assessing oil, gas, and electricity export applications. The regulations require application information that is no longer relevant to the surplus criteria for oil and gas export applications and the reliability and fair market access criteria for electricity export applications.

Additionally, until the regulations are updated there is an increased risk that the CER may not obtain pertinent information to effectively monitor energy markets and make decisions on oil, gas, and electricity export applications. Certain aspects of the regulations have become outdated as the energy industry has evolved in the decades since the regulations first came into force. Changes would reflect the types of information the CER now requires for market monitoring, as well as remove outdated requirements and revise others to reflect current industry practice and technology.

Until the regulations are changed, applicants will continue to be required to comply with regulatory requirements that are not reflective of the CER Act or current industry practice and technology. Reliance on current application requirements may result in regulatory uncertainty and unnecessary administrative burden for potential applicants and other interested parties. There is also a risk that the CER may not obtain pertinent information to monitor energy markets and make effective decisions on oil, gas, and electricity export applications.

Background

The export and import regulatory framework, established under the NEB Act, consists of four regulations, made by the Governor in Council or the Regulator with the approval of the Governor in Council:

These four regulations provide the CER with critical information to assess applications and enable the CER to understand the functioning of energy markets in Canada in order to fulfill its mandate as Canada’s energy expert.

In 2012, the NEB Act was amendedfootnote 1 and removed requirements for mandatory public hearings for gas and electricity export licence applications, and reduced the scope of matters that are considered for export applications, specifically the equitable distribution of oil or gas imports in Canada and the impact of electricity exports on the environment. In 2014, after consultation with stakeholders, amendments to the National Energy Board (NEB) regulations were drafted to reflect the legislative changes. However, the proposed regulatory amendments were put on hold in 2015 due to the federal election and in anticipation of the changes that would result from the Government’s environmental and regulatory reviews.

In 2019, following the above-mentioned reviews, the NEB Act was repealed and replaced with the CER Act. The changes brought about with the CER Act included removing the requirement for an authorization to import oil or gas and changing various names and terms throughout. The CER Act also restructured the regulation-making authorities by introducing a third regulation-making authority: made by the Regulator.

The CER will be bringing forward three proposals to repeal the four NEB Act regulations and replace them with five CER Act regulations, reflecting the new regulation-making authorities, as shown in the table below.

Table: Proposed CER Act regulations
Proposed regulations CER Act Regulation-making authority
Export and Import (Orders, Licences and Permits) Regulations Part 7, paragraphs 353(1)(a)
to (d), and paragraphs 367(1)(a) and (d)		 Governor in Council
Part 9, paragraph 390(1)(b) table 1 note a
International Power Lines (Permits) Regulations Part 4, paragraphs 291(a), (b), and (d)
Export and Import Reporting Regulations Part 7, subsection 354(1),and Part 9, paragraph 389(1)(d) Regulator with Governor in Council approval
Toll Information Reporting Regulations Part 9, paragraph 389(1)(d)
Export Applications (Licences and Permits) Regulations Part 7, subsections 354(2) and 367(2) Regulator

Table 1 note(s)

Table 1 note a

Regulations may only be made after consultation with the Regulator.

Return to table 1 note a referrer

This proposal brings together sections of the NEB Part VI Regulations, NEB Electricity Regulations, and NEB Reporting Regulations into one proposed regulation to be made by the Regulator:

A second proposal brings together sections of the NEB Reporting Regulations and Toll Information Regulations under two other regulations: the Export and Import Reporting Regulations and the Toll Information Reporting Regulations, respectively, to be made under the Regulator’s regulation-making authority with the approval of the Governor in Council, which are addressed through a separate Regulatory Impact Analysis Statement.

A third separate but concurrent proposal captures sections of the NEB Part VI Regulations and NEB Electricity Regulations that are not addressed by the other two proposals. These proposed regulations, the Export and Import (Orders, Licences and Permits) Regulations and International Power Lines (Permits) Regulations, would be made by the Governor in Council and are addressed through a separate Regulatory Impact Analysis Statement.

Objective

The desired outcome for this proposal is a clear and consistent regulatory framework in which exporters of oil, gas or electricity, and other interested parties would have a clear understanding of the export application obligations. There are two objectives for this proposal:

This proposal aims to reduce unnecessary administrative burden on businesses and provide the CER with the information it requires to support its role as an expert tribunal. A regulatory environment that is fair, predictable, and consistent is crucial for businesses to function and make investment decisions, and supports the CER’s mandate to regulate energy development in the Canadian public interest.

Description

Below is a description of the proposed Regulations.

Export Applications (Licences and Permits) Regulations

The proposed Export Applications (Licences and Permits) Regulations would reproduce and consolidate certain requirements found in the NEB Part VI Regulations (sections 2–4, 8–9, 12, 20 and 25–26), the NEB Electricity Regulations (sections 2 and 8–9), and the NEB Reporting Regulations (sections 9–11). Specifically, the proposed Regulations would specify the units of measurement to be used and the information that applicants for oil and gas export licences and electricity export permits must provide to the CER.

In addition, the proposed Regulations would incorporate the following changes:

Application requirements for the export of oil or gas

The CER Act narrowed the scope of matters the CER considers in assessing oil or gas export applications. Under the CER Act, the only criterion for assessing oil and gas exports is that “the quantity of oil or gas to be exported does not exceed the surplus remaining after allowance has been made for the reasonably foreseeable requirements for use in Canada, having regard to the trends in the discovery of oil or gas in Canada” (surplus criterion). Application requirements for export permits would be streamlined to focus on the surplus criterion by removing unnecessary application requirements and only requiring information that is directly relevant to the surplus criterion, such as a description of the impact that the proposed export may have on the ability of Canadians to meet their oil or gas requirements. For example, the application requirements in the NEB Part VI Regulations require submission of information such as transportation arrangements, export markets and contractual agreements pertaining to the proposed export. This information is not relevant to determining whether a proposed export is surplus to Canadian requirements.

Application requirements for the export of electricity

The CER Act narrowed the scope of matters the CER considers in assessing electricity export applications. Under the CER Act, the criteria for assessing electricity export applications are the effect the export may have on other provinces (reliability criterion) and whether fair market access was given to those wishing to purchase electricity for consumption in Canada (fair market access criterion). Application requirements for electricity export permits would be streamlined to focus on the reliability and fair market access (FMA) criteria. The proposed Regulations would remove unnecessary application requirements while continuing to require information that is relevant to reliability and the FMA, such as a description of how the applicant offered fair market access to persons who declared an interest in buying the electricity for consumption in Canada.

Regulatory development

Consultation

The proposed Regulations consider the feedback received through the consultation process undertaken in 2013 to address changes to the NEB Act. While no further consultations have occurred since 2013, information about this proposal has remained publicly available on the CER website along with an open invitation for feedback on the CER’s regulatory framework. The introduction of the CER Act in 2019 did not result in substantive changes to the amendments proposed in 2013, with the exception of changes to the regulation-making authorities. As a result, the relevance and applicability of the previously proposed changes and comments received in 2013 remain relevant.

The consultation involved posting the proposed amendments on the NEB website and notifying industry associations, export authorization holders, provincial governments and other interested stakeholders of opportunities to provide comments to the NEB. A total of 11 letters were submitted during the comment period by petroleum, petrochemical, pipeline and electricity associations, as well as by provincial departments and Indigenous Peoples. The NEB also met with a number of these parties during and after the comment period to answer questions and provide additional detail regarding the proposed amendments.

Companies and industry associations were generally supportive of proposed changes intended to streamline and simplify regulatory requirements and to bring the regulations in line with the legislation. Several modifications were made to address comments and requests from stakeholders. For example, the proposed Export Applications (Licences and Permits) Regulations were modified to reflect a request from the Canadian Association of Petroleum Producers to amend the definition of “refined petroleum products” to clarify that this term does not include bitumen, synthetic crude oil and dilbit, as these products are understood to fall under the meaning of “crude oil”. Alberta Department of Energy suggested that provisions that provide guidance to regulated companies regarding units of measurement for metering purposes not be removed as was initially proposed. The suggestion was partially accepted, and the proposed Export Applications (Licences and Permits) Regulations would retain the requirements to convert, and correct for deviations, gas volumes measured under non-standard conditions. The proposed Regulations would also remove a requirement to incorporate a report by reference.

Other comments and requests from stakeholders did not require modifications to the proposed Regulations. Some comments were resolved directly with stakeholders and others would be addressed through updated guidance in the filing manuals, the Commodity Tracking System, and the Online Application System once the proposed Regulations come into force.

Some requests were not incorporated as they would have created a misalignment with the legislation. For example, the Chemistry Industry Association of Canada, the Ministry of Natural Gas Development of British Columbia, the Department of Energy of Alberta, and Gitxaala Nation each requested to either retain certain oil or gas export application requirements that had been proposed to be deleted, or requested new requirements. These requests were not incorporated in the proposed Export Applications (Licences and Permits) Regulations, as they would have required information that is not relevant to the surplus criterion, which is the only criterion in the CER Act for assessing oil or gas export applications.

Modern treaty obligations and Indigenous engagement and consultation

An assessment of implications on modern treaties was conducted, which examined the scope and subject matter of the initiative in relation to modern treaties in effect. The assessment did not identify any potential impacts or obligations on federal modern treaties in relation to these proposed Regulations.

During the 2013 consultations, the Gitxaala Nation raised a concern about the proposed removal of the requirement to provide certain information on oil or gas export applications as well as the corresponding terms and conditions that could be applied to an export authorization. Specifically, the Gitxaala Nation was concerned that without the condition that environmental requirements be met for the authorization to take or remain in effect, the NEB would not be able to ensure that their Indigenous rights under section 35 of the Constitution Act, 1982, are respected by companies carrying out exports.

The NEB responded that the granting of an export authorization by the Regulator does not authorize or cause physical activities or associated potential adverse impacts to any potential or established Indigenous or treaty rights under section 35. The issuance of an authorization does not influence or predetermine other authorizations issued by separate authorities that would be required to carry out physical activities associated with an export where those physical activities might impact constitutionally protected rights. The environmental requirement condition is proposed to be removed as environmental considerations are no longer required under the CER Act’s criteria for assessing applications for the export of oil or gas.

Notwithstanding the above, to ensure Indigenous Peoples are consulted and treaty rights are considered in the export and import regulatory framework, the CER will notify Indigenous Peoples who may have an interest in these proposed Regulations of the opportunity to comment during the 45-day consultation period in the Canada Gazette, Part I. This consultation would be in addition to the extensive consultation with Indigenous Peoples and organizations undertaken during the development of the CER Act through Bill C-69 (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).

Instrument choice

As there is an existing regulatory framework that applies to exports, imports, international power lines, and reporting, changes to the regulation-making authorities, as well as necessary changes to reflect the CER Act and modernize the Regulations, could only be accomplished through the regulatory process. Therefore, no other instruments were considered.

Regulatory analysis

Benefits and costs

This proposal would not result in any costs to Canadians and would result in an overall decrease in administrative costs for businesses. A number of export companies were consulted to determine the impact of these regulatory changes on costs and benefits.

The proposed Export Applications (Licences and Permits) Regulations would not reintroduce certain oil, gas, and electricity application requirements currently found in the NEB Part VI Regulations and NEB Electricity Regulations, which would be repealed by the proposed Export and Import (Orders, Licences and Permits) Regulations and the International Power Lines (Permits) Regulations. Therefore, the proposed Regulations would decrease administrative burden costs for businesses as the application requirements would be revised to only include information that is relevant to the criteria in the CER Act for assessing export applications (“surplus determination” for oil and gas, and “fair market access” and “reliability” for electricity). The present value cost savings for businesses applying to export oil, gas or electricity would be $1,135,734 over a 10-year forecast period starting in 2024, or an annualized average of $161,703.

The simplified and modernized application requirements would take less time to complete, require fewer supporting studies, and assist the CER in making decisions in accordance with the criteria set out in the CER Act. Therefore, this proposal would provide benefits to industry by reducing administrative burden, while still ensuring that the CER receives relevant information required to make decisions in the Canadian public interest.

Implementing this proposal would result in cost savings for the CER. Changes to the CER’s Online Application System to reflect the application requirements in the proposed Regulations would be carried out as the CER periodically updates this system, resulting in no incremental costs. This proposal would result in cost savings for the CER by freeing up resources needed to process these applications.

Small business lens

The proposed Regulations are outside the scope of the small business lens, as it is made by an independent regulatory authority. This proposal is not expected to increase compliance or administrative costs for small businesses.

Currently, there are no small businesses that apply for export authorizations; it is predominantly large companies who do so. Deleting unnecessary application requirements under the proposed Regulations would result in reduced administrative costs for small businesses applying to export oil, gas, or electricity should they enter the market in the future.

One-for-one rule

The one-for-one rule does not apply, as the proposed Regulations are made by an independent regulatory authority and are outside of the scope of the rule, and therefore would not be counted as a “title in” under the Red Tape Reduction Act one-for-one rule.

Element A: Under the CER Act, a number of provisions are now within the Regulator’s regulation-making authority and a new regulatory title is needed. Repealing the NEB Part VI Regulations, NEB Electricity Regulations, and NEB Reporting Regulations would remove unnecessary application and reporting requirements, thereby decreasing administrative costs for businesses seeking to export oil, gas, or electricity. Under the one-for-one rule, the decreased administrative costs are attributed to the repeal of the NEB Part VI Regulations and the NEB Electricity Regulations, and are therefore addressed in a separate Regulatory Impact Analysis Statement for the reciprocal proposed Export and Import (Orders, Licences and Permits) Regulations and International Power Lines (Permits) Regulations. Information on the stakeholders and export application requirements is also in the aforementioned Regulatory Impact Analysis Statement.

Element B: This proposal introduces one new regulatory title.

Regulatory cooperation and alignment

The proposed Regulations are not related to a work plan or commitment under a formal regulatory cooperation forum.

Effects on the environment

In accordance with the Cabinet Directive on Strategic Environmental and Economic Assessment, a preliminary scan concluded that a strategic environmental and economic assessment is not required. This proposal is not expected to have any environmental effects as it pertains to exports.

Gender-based analysis plus

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

Implementation, compliance and enforcement, and service standards

Implementation

The proposed Export Applications (Licences and Permits) Regulations would come into force on the day on which the separately proposed Export and Import (Orders, Licences and Permits) Regulations come into force, but if these proposed Regulations are registered after that day, they would then come into force on the day on which it they are registered.

For the purpose of implementing the regulatory requirements, the CER would undertake a number of compliance promotion activities. Application requirements set out in the proposed Regulations would be reflected through updated guidance on the CER’s website and in the CER Filing Manuals as well as updates to the CER’s Online Application System.

Compliance and enforcement

Compliance and enforcement of the proposed regulations would be in accordance with a risk-based approach, aligned with CER policies. They would follow established CER approaches and procedures, including education, applying conditions on authorizations, inspections at sites and facilities, audits of programs, procedures, manuals, records, activities, and follow-up on reported incidents. Non-compliant activities would be subject to the enforcement actions available to the CER under the CER Act and could include notices, stop work orders, administrative monetary penalties, suspending or revoking authorizations, or prosecution.

Service standards

Existing service standards would be used for all applications affected by these proposed Regulations. The CER is not proposing to change service standards as part of this proposal.

Contact

Jenni Low
Regulatory Policy
Canada Energy Regulator
517 10th Avenue Southwest, Suite 210
Calgary, Alberta
T2R 0A8
Fax: 403‑299‑3664
Email: EIRF@cer-rec.gc.ca.

PROPOSED REGULATORY TEXT

Notice is given that the Canadian Energy Regulator proposes to make the annexed Export Applications (Licences and Permits) Regulations under subsections 354(2) and 367(2) of the Canadian Energy Regulator Act footnote a.

Interested persons may make representations concerning the proposed Regulations within 45 days after the date of publication of this notice. They are strongly encouraged to use the online commenting feature that is available on the Canada Gazette website but if they use email, mail or any other means, the representations should cite the Canada Gazette, Part I, and the date of publication of this notice, and be sent to Jenni Low, Market Analyst, Regulatory Policy, Canadian Energy Regulator, 517 Tenth Avenue Southwest, Suite 210, Calgary, Alberta T2R 0A8 (fax: 403‑299‑3664; email: EIRF@cer-rec.gc.ca)

Calgary, October 3, 2024

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

Export Applications (Licences and Permits) Regulations

Definitions

Definitions

1 The following definitions apply in these Regulations.

Act
means the Canadian Energy Regulator Act. (Loi)
butane
means normal butane and isobutane. (butane)
crude oil
means an oil or a blend of oils — other than a refined petroleum product — but includes an oil or a blend to which a refined petroleum product or a natural gas liquid has been added. (pétrole brut)
electricity transfer
means a transfer of power or energy. (transfert d’électricité)
energy
means the total quantity of energy in the form of electricity transmitted over a period of time, expressed in watt-hours or multiples or submultiples of watt-hours. (énergie)
firm energy
means energy supplied under the terms of an agreement that requires the energy to be available at all specified times during the period covered by the agreement. (énergie garantie)
firm power
means power or power-production capacity supplied under the terms of an agreement that requires the power or power-production capacity to be available at all specified times during the period covered by the agreement. (puissance garantie)
interruptible energy
means energy supplied under the terms of an agreement that permits the curtailment, interruption or cessation of delivery of the energy at the option of the supplier. (énergie interruptible)
interruptible power
means power supplied under the terms of an agreement that permits the curtailment, interruption or cessation of delivery of the power at the option of the supplier. (puissance interruptible)
licence
means a licence that is issued under Division 1 of Part 7 of the Act. (licence)
permit
means a permit that is issued under Division 2 of Part 7 of the Act. (permis)
power
means the rate at which energy is transferred in an electric circuit, expressed in watts or multiples or submultiples of watts. (puissance)
power system
means a network of electrical components, including the generating stations, transformers, switching stations, transmission lines, substations, distribution lines and circuits necessary for the generation, transmission and distribution of electricity. (réseau d’électricité)
refined petroleum product
means
  • (a) a gasoline-type fuel for use in internal combustion engines;
  • (b) an oil for use as a component in the blending of gasoline-type fuels referred to in paragraph (a);
  • (c) a middle distillate, including the products commonly or commercially known as kerosene, stove oil, diesel fuel, furnace oil, diesel oil, gas oil, distillate heating oil, engine distillates and Nos. 1, 2 and 3 fuel oils;
  • (d) a heavy fuel oil, including a Nos. 4, 5 and 6 fuel oil, bunker “C” oil, “C” grade oil, residual fuel oil, heavy bunker oil, intermediate and thin bunker fuel and any blend of heavy fuel oil; or
  • (e) a partially processed oil, whether commingled with crude oil or equivalent hydrocarbons or not. (produit pétrolier raffiné)

General

National Energy Board Rules of Practice and Procedure, 1995

2 In addition to the requirements set out in these Regulations, Part I of the National Energy Board Rules of Practice and Procedure, 1995 applies in respect of the procedures to be followed in applying for and issuing a licence for the export of oil or gas.

Approval of Minister

3 The approval of the Minister is required before a licence may be issued for

Gas

Gas Other than Propane, Butane and Ethane

Information

4 An applicant for a licence for the export of gas — other than propane, butane or ethane — must provide to the Commission all the information that is necessary for the Commission to make a decision with respect to the application, including, unless otherwise authorized by the Commission,

Propane, Butane or Ethane

Information

5 An applicant for a licence for the export of propane, butane or ethane must provide to the Commission all the information that is necessary for the Commission to make a decision with respect to the application, including, unless otherwise authorized by the Commission,

Oil

Information — refined petroleum products

6 An applicant for a licence for the export of refined petroleum products must provide to the Commission all the information that is necessary for the Commission to make a decision with respect to the application, including, unless otherwise authorized by the Commission,

Information — crude oil

7 An applicant for a licence for the export of crude oil must provide to the Commission all the information that is necessary for the Commission to make a decision with respect to the application, including, unless otherwise authorized by the Commission,

Electricity

Information — border accommodation transfer

8 (1) An applicant for a permit for the export of electricity for the purposes of a border accommodation transfer must provide to the Commission the following information, unless the Commission advises the applicant that the information is already in the possession of the Regulator or is not relevant to the application:

Definition of border accommodation transfer

(2) In subsection (1), border accommodation transfer means a transfer of power and energy for the purpose of providing electricity to

Information — other than border accommodation transfer

9 An applicant for a permit for the export of electricity, other than for a border accommodation transfer referred to in section 8, must provide to the Commission the following information, unless the Commission advises the applicant that the information is already in the possession of the Regulator or is not relevant to the application:

Units of Measurement

Units of measurement — gas

10 (1) For the purposes of these Regulations, gas must be measured in units of measurement that meet the requirements of the Electricity and Gas Inspection Act and

Non-standard conditions

(2) If volume is measured under conditions of temperature and pressure other than the standard conditions described in paragraph (1)(a), the volume must be converted to the equivalent under the standard conditions, in accordance with the Ideal Gas Laws, and must be corrected for deviations from the Ideal Gas Laws if the amount of the deviation exceeds 1%.

Exception

(3) Despite subsections (1) and (2), propane, butane and ethane may be measured in liquid form, in which case the volume measurement must be expressed in cubic metres.

Measurement — liquids

11 For the purposes of these Regulations, the measurement of liquids must be computed at a temperature of 15°C, other than liquids determined by the Regulator to be cryogenic liquids.

Unit of measurement — power and energy

12 For the purposes of these Regulations, power and energy must be measured in units of measurement that meet the requirements of the Electricity and Gas Inspection Act.

Coming into Force

Registration

13 These Regulations come into force on the day on which the Export and Import (Orders, Licences and Permits) Regulations are registered, but if these Regulations are registered after that day, they come into force on the day on which they are registered.

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