Incorporation by Reference Policy
Table of Contents
- 1. Introduction
- 2. Policy Statement
- 3. Objectives
- 4. Definitions
- 5. Scope
- 6. Authorities
- 7. Guiding Principles – Choosing Documents
- 8. Guiding Principles – Maintaining Documents
- 9. Roles and Responsibilities
- 10. Concerns and Complaints
- 11. Monitoring and Reporting
- 12. Inquiries
- 13. Effective Date
- Annex A – Process for Revising Ambulatory Incorporated Documents
Incorporation of documents by reference is a drafting technique that may be used to bring the content of the incorporated document into a regulation, without the need to reproduce the document in the regulation itself. The legal effect of incorporation by reference is to write the words of the incorporated document into the regulation as if it had actually been reproduced word for word. Documents incorporated by reference therefore have the same force as the regulation under which it is incorporated. The Canadian Food Inspection Agency (CFIA) will be using several guiding principles in its approach for choosing the documents to be recommended for incorporation by reference under legislation it administers and enforces. This set of principles will guide how the CFIA chooses what documents it will recommend as appropriate to incorporate in the regulations, as well as how those documents are maintained and kept up-to-date, including providing stakeholders with notice of upcoming changes and the opportunity to comment.
CFIA has embarked on a change agenda designed to strengthen how it administers and enforces regulations within its jurisdiction relating to food, animals and plants. These changes are occurring as a result of the introduction of new laws including the Safe Food for Canadians Act (SFCA) and its regulations, and the Agricultural Growth Act that amended all of the agricultural statutes that the CFIA administers, and the Agency's initiative of an Integrated Agency Inspection Model (iAIM). These initiatives have resulted in the CFIA undertaking a broad review of all of the regulations for food safety, plant and animal health that it administers with the goal to improve consistency, reduce complexity and strengthen consumer protection. Modernized regulations will reduce unnecessary regulatory burden; provide clarity and flexibility in regulations; and support innovation and changes in science and technology.
The use of appropriately incorporated documents could make the regulatory system more responsive to concerns of industry and consumers by responding more promptly to modern science and new innovations which might require regulatory change. For example, instead of needing to amend a regulation to revise a list pertaining to food grades or standards which may be subject to ongoing change, a list developed by the CFIA and able to be incorporated by reference could be revised by the CFIA, usually following consultations, without amending the regulation itself. In addition, international or third party standards incorporated into the regulations, if appropriate, could be used rather than reproducing the standard in the regulation itself.
The decision to incorporate a document by reference in a regulation is just one possible instrument choice in addressing a policy need. While the other instrument choice with the same legal effect would be to embed the rules directly in a regulation, other possible means to address the policy objective would be to make a legislative change or to promote the policy through use of administrative means, such as voluntary agreement to reflect best practices, and guidance to regulated parties.
2. Policy Statement
The CFIA will adhere to the guiding principles of accessibility, transparency, consistency, reasonableness and clarity when incorporating documents by reference in regulations it administers.
One of the regulatory tools that the CFIA will pursue, where possible, in developing new regulations is the incorporation by reference of documents into the regulations that are internally or externally generated, and that may change over time. The objective of this policy document seeks to outline the general principles that the CFIA will follow when identifying documents appropriate for incorporation by reference, both under the SFCA and under other Acts administered by the CFIA, and the process the CFIA will follow in respect of any changes to those documents.
- Static Incorporation by Reference:
- A static (or closed) reference refers to the incorporation of a document as it exists at the time it is made part of the regulation. If the document is revised or amended after it is incorporated, the revision or amendment is not incorporated into the regulation and, therefore, the regulation continues to apply in reference to the original document. To incorporate the latest version of the document, the regulation would need to be amended to reference that version of the document.
- Ambulatory Incorporation by Reference:
- An ambulatory (or open or rolling) reference refers to the incorporation of a document in such a way as to include any future changes to that document without a need to remake the regulation. In the case of this type of incorporation by reference, the regulation incorporating the document would refer to a document "as amended from time to time".
This Policy will apply to all documents to be incorporated into regulations under an Act that the CFIA administers and enforces which includes the same incorporation by reference provisions set out below under "Authorities", including the:
- Safe Food for Canadians Act,
- Feeds Act,
- Fertilizers Act,
- Seeds Act,
- Health of Animals Act, and the
- Plant Protection Act.
The policy will come into effect at such time as the Incorporation by Reference provision in each applicable Act comes into force.
The express authority to incorporate documents in regulations exists in the Acts that the CFIA administers. It is therefore available, where appropriate, for the regulations that are made under that Act.
The relevant authorities in the SFCA are found in sections 52 to 55:
52. A regulation made under subsection 51(1) may incorporate by reference any document, regardless of its source, either as it exists on a particular date or as it is amended from time to time.
53. The Minister must ensure that any document that is incorporated by reference in a regulation made under subsection 51(1), including any amendments to the document, is accessible.
54. A person is not liable to be found guilty of an offence or subjected to an administrative sanction for any contravention in respect of which a document that is incorporated by reference in a regulation made under subsection 51(1) is relevant unless, at the time of the alleged contravention, the document was accessible as required by section 53 or it was otherwise accessible to the person.
55. For greater certainty, a document that is incorporated by reference in a regulation made under subsection 51(1) is not required to be transmitted for registration or published in the Canada Gazette by reason only that it is incorporated by reference.
Note: These provisions of the SFCA are not yet in force.
The Agricultural Growth Act has amended the following statutes to provide identical authorities to those that are found in the SFCA in the corresponding sections:
- Feeds Act: s. 5.1
- Fertilizers Act: s. 5.1
- Seeds Act: s. 4.1
- Health of Animals Act: s. 64.1
- Plant Protection Act: s. 47.1
A regulatory proposal amending the relevant regulation or regulations must be advanced through the Governor in Council to incorporate a document. The explicit authority to incorporate by reference in the CFIA-administered Acts does not apply to Ministerial Regulations.
The Statutory Instruments Act was amended by the Incorporation by Reference in Regulations Act on June 18, 2015, to provide authority for the use of incorporation by reference in regulations, including Ministerial regulations made under any Act of Parliament, subject to the limits set out in that authority. This authority does not limit the broader application of the explicit authority in the foregoing CFIA-administered statutes.
7. Guiding Principles – Choosing Documents
The rationale for choosing to use incorporation by reference of an internal or external document, and whether it is to be incorporated on a static or ambulatory basis, will be set out by the CFIA in the Regulatory Impact Analysis Statement (RIAS) related to the applicable regulation. The RIAS is reviewed by Treasury Board, and then made available for consultation with stakeholders, and would include the rationale for the incorporation and the regulation, as well as cost-benefit analysis associated with the regulatory proposal, including any costs or benefits related to the document proposed to be incorporated. The Department of Justice will also play a key role in determining if a document is suitable for incorporation, on either an ambulatory or static basis. Ultimately, it is the Governor in Council who will approve the incorporation of a document in the regulations, on the advice of the Minister responsible.
The CFIA will adopt the following guiding principles in its recommendation to the Minister for use of the incorporation by reference authority: accessibility, transparency, consistency, reasonableness and clarity. Of particular note is the principle of accessibility, which is specifically set out in each statute as a requirement. Documents that are incorporated must be accessible to regulated parties, as per the provisions of the statutes. These guiding principles are consistent with the CFIA's Statement of Rights and Service for Producers, Consumers and Other Stakeholders, which reinforces its commitment to transparency, fairness, responsiveness, and accessibility.
The list below presents some of the factors that will be considered when determining whether the incorporation of a document is appropriate. These factors would be included in the RIAS for the regulatory proposal.
- The source of the document;
- The document's intended purpose;
- How often the document may change if it is proposed to be incorporated on an ambulatory basis (i.e. is it necessary to have an ambulatory incorporation, or would a static incorporation be more appropriate);
- If the information in the document should properly be in a regulation, or does the information help clarify or provide details to a regulatory provision;
- The rationale for an ambulatory reference instead of static;
- If the document is a third-party document, whether it is written in appropriate language (i.e. language that could be enforced);
- The accessibility of the document (including any required costs)
- The language of the document;
- Who is responsible for maintaining the document, if it is a third-party document;
- How easily understandable and widely accepted the content of the document is, and the clarity of language;
- If it is a third-party document, whether it is subject to copyright, and if so, the cost to the Government of Canada to potentially provide access to regulated parties;
- The international trade implications of incorporating the document;
- The rigour (scientific, technical, other) with which a third-party document was developed; and
- The relevance of the third-party document to the Canadian context; and the extent of the CFIA's participation and involvement in the development and future revisions of the document.
8. Guiding Principles – Maintaining Documents
The CFIA will adhere to the following guiding principles when any changes are considered to a document that has been incorporated on an ambulatory basis.
- The CFIA will only recommend incorporating documents from third parties on an ambulatory basis where the CFIA has a reasonable expectation that notice and a reasonable period to comment on changes to its documents will be given by the third party to the CFIA, and that the incorporation will allow Canada to meet its international obligations. In some cases, the CFIA will seek to enter into a Memorandum of Understanding with the third party concerning the process to revise the document.
- When any change is being considered, either to a CFIA document or a third-party document, the potential for additional administrative burden and the cost-benefit analysis will be considered by the CFIA. This would weigh into the determination of whether the change should be made, or whether, in the case of a third-party document, the regulations should be amended so as to maintain the incorporation of the document to the earlier version or take some other measure, such as provide for a specific regulation or incorporation of its own (internal) document, either on a static or ambulatory basis.
- To support transparency, notifications of proposed changes to ambulatory incorporated documents will be sent to the public and stakeholders via a notice posted on the CFIA external website, and where appropriate, through the World Trade Organization (WTO) Notification process. Alternative and complementary methods of notification (e-mail lists, direct discussion with associations and organizations) will be investigated where appropriate. Such notifications would clearly indicate the period to provide comments on the proposed changes and a contact person to whom comments may be sent. Consideration could be given to an extension of the comment period for documents that the CFIA controls.
- CFIA will post all changes to internal ambulatory documents on its website for comment; it will also endeavour to post forthcoming changes to third party incorporated documents prior to their change, to seek comments from stakeholders.
- After the completion of the notification period, the CFIA would confirm that the comment period has ended, indicate if comments were received and post a summary of the comments made during the notification period. CFIA will also issue a notification as to whether it is proceeding with the changes (if it is not a third party document). This summary will be posted on the CFIA external website.
- Incorporated internal documents will be posted in both official languages on the CFIA website. Where applicable, previous versions will be archived along with a summary of the changes.
- Incorporated third party documents will be available for access on the CFIA website with full consideration to both official languages as appropriate and feasible. Previous versions will be archived along with a summary of the changes.
- A transition period, where appropriate, may apply before a modification to an incorporated document can formally take effect.
- The CFIA will take a consistent approach to incorporation by reference and verify that any obligations in law related to incorporation by reference, such as accessibility, have been satisfied.
- In situations where a third party proposes making changes to an ambulatory incorporated document that the CFIA does not agree with, the CFIA will develop a strategy for addressing the situation - the CFIA can initiate an amendment to the regulations to revise the reference to the document so that it references an earlier version, or take some other measure, such as provide for a specific regulation. In these cases, prior to the regulation referencing the document being revised, the CFIA will consider whether or not to take enforcement action on the elements of the document that were of concern.
9. Roles and Responsibilities
As part of the regulatory process, the Department of Justice will review and provide legal input in respect of the initial document that is proposed to be incorporated by reference, including an assessment of whether the document is appropriate for being incorporated. Additionally, the public and stakeholders will be notified of the regulatory proposal and given the opportunity to share their comments or concerns. Notification of the regulatory proposal and the opportunity to comment would occur via the Canada Gazette process. The Treasury Board must approve the regulatory proposal, and Canada's international obligations would need to be shown to be met. Final approval of the incorporation of a document into the regulation is by the Governor in Council, on the advice of the Minister responsible for those regulations.
From time to time, documents that have been incorporated by reference on an ambulatory basis will be revised; for instance, in response to new science or an emerging health risk. Changes to CFIA documents that have been incorporated by reference are managed internally by the Agency, while changes to third party documents that have been incorporated by reference are managed by the authors of the document. With respect to incorporated third party documents, if a document from an international standards organization was incorporated by reference on an ambulatory basis, subsequent changes to that standard would be made by the third party, and would take effect immediately on the date the change becomes effective. A proposed pathway for CFIA incorporating changes to ambulatory documents controlled by the CFIA, or controlled by a third-party, is set out in detail in Annex A. It should be noted that, in all cases, the CFIA is committed to transparency in its notification to stakeholders, as set out in the Guiding Principles section of this document.
Changes to documents controlled by the CFIA will only be made following a thorough assessment and approval of the change by the appropriate level within the CFIA. Domestic and international stakeholders will be notified of all proposed modifications and provided with an opportunity to comment. Changes to third-party documents are managed by the external authority – however, the CFIA will work with the third party so that the CFIA is aware of any upcoming changes, and then, where possible, provide an opportunity for stakeholders to comment. The CFIA will communicate proposed changes it is aware of to stakeholders prior to them being made. Note, though, that changes to ambulatory incorporated documents do not travel through the Canada Gazette process, but may, if required, be subject to the WTO Notification process.
10. Concerns and Complaints
Concerns from regulated parties about whether a document should be incorporated or not can be submitted as a comment during the Canada Gazette process, where the comments will be reviewed and assessed by the CFIA.
If a regulated party feels that the CFIA has not been diligent in following its guiding principles in relation to the incorporation or change or revision to an incorporated document, they may address their concerns to the CFIA's Complaints and Appeals Office.
11. Monitoring and Reporting
The policy governing the use of incorporation by reference will be reviewed to evaluate its implementation, its success in achieving the stated objectives and whether it needs to be updated. The review will be conducted periodically on an as-needed basis, or at least once every five years.
For interpretation, clarification or inquiries regarding this Policy please contact: Regulatory, Legislative and Economic Affairs Division, Program, Regulatory & Trade Policy Directorate, Policy and Program Branch.
13. Effective Date
This Incorporation by Reference Policy has been approved by the CFIA Program Management Committee.
This policy comes into effect on July 31, 2015.
Annex A – Process for Revising Ambulatory Incorporated Documents
Documents Created by the CFIA
If a document developed by the CFIA is chosen as appropriate for ambulatory incorporation in CFIA-administered regulations, this process will be followed when the incorporated document is updated or changed:
Step 1 – Review and Final Approval
Following the completion of the policy and/or scientific assessment and any related consultations, proposals to modify a document incorporated by reference in CFIA-administered legislation must be considered by the Executive Director of the relevant CFIA program area. A determination of the potential administrative burden change would be completed at this time. Approval of the proposed change from the President of the CFIA or the Minister responsible will be required in order for the document to continue to be incorporated for purposes of CFIA legislation.
Step 2 – Domestic and International Notification
Once approved within the CFIA, the Canadian public, domestic stakeholders, and international trading partners and other foreign governments will be notified of the proposals and given the opportunity to provide any comments or concerns they may have. The duration of the comment period will be specified in the notice and varies depending on the nature of the change. International notification may not always be required.
Notification will be sent to the public and domestic stakeholders through the CFIA external website. For international partners, notification will be sent to the World Trade Organization (WTO) through established processes and channels, as appropriate.
Note on Proposed Changes due to Immediate Risks to Health:
In instances where a change to an incorporated document is being proposed to address an immediate risk to health and safety, the CFIA may forgo the comment period and proceed immediately with modifying the document incorporated by reference at the time of domestic and international notification.
Note on Minor Administrative Changes:
In instances where minor administrative changes (e.g. correcting spelling, correcting grammar) are required to documents incorporated by reference, the CFIA may also forgo the comment period and proceed immediately with modifying the document incorporated by reference.
These changes would be limited to those of a "house-keeping" nature that have no impact on health and safety or the industry's ability to market their commodities in Canada.
Step 3 – Analysis of Comments
The CFIA will undertake an analysis of all comments received during the notification period, take them under consideration, and determine whether any revisions to the proposal are required.
Step 4 – Summary of Comments
Upon completion of the notification period, the CFIA will confirm that the comment period has ended, indicate if comments were received and post a summary of the comments made during the notification period. The CFIA will also state whether or not it intends to proceed with the proposed change or if a re-assessment will be required due to the comments received. This information will be published on its website, and, if applicable, be notified to international partners.
Step 5 – Final Publication of Modified Document
Once the notification period has ended and no significant concerns which would require a revision to the proposal have been identified, the French and English versions of the document incorporated by reference will be modified accordingly. If there are significant issues raised in the comment period, revisions would be made, and the process would return to step 2.
The previous French and English versions of the document will be archived online along with a short summary of the change(s) for referencing purposes. The modification to the incorporated document takes effect the day on which it is indicated, but not earlier than put on the website.
Note on Transition Periods:
A transition period may be required before a modification to an incorporated document can formally take effect to provide domestic and international stakeholders with sufficient time to modify their products or practices in order to come into compliance. The requirement for and length of any such period will be determined on a case-by-case basis and/or based on any applicable legislative, regulatory or other formal requirements (e.g. international agreements). The public and WTO notices will specify if there is a transition period. A transition period is generally used in those instances where the proposed modification will impact the industry's ability to market a commodity in Canada.
Documents Created by Other Government Departments and Agencies, and Third Parties
The CFIA will consider the incorporation of documents created by other Government departments and agencies, and from third parties where the CFIA has a reasonable expectation that notification of upcoming revisions will be given. A Memorandum of Understanding between the CFIA and the other department or agency, or third party may be explored, to give greater assurances of notification and input when changes are considered. Where a third party document has been incorporated and CFIA is aware that the third party is making a revision, the CFIA will identify to stakeholders that the document is being considered for change, and invite comments on the appropriateness of that change. These comments will be assessed by the CFIA, and, where relevant, communicated to the author of the third-party document, though there is no assurance that the third party will address the comments. The following steps will be followed when documents to be incorporated are created by third parties:
Step 1 – Domestic and International Notification
When another Government department or agency, or third party, identifies that a document that has been incorporated will be revised, the CFIA will endeavour to notify the Canadian public, domestic stakeholders, and international partners of the proposal, and provide an opportunity to comment. The comment period will be specified in the notice and varies depending on the nature of the change.
Notification will be sent to the public and domestic stakeholders through the CFIA website and any existing email distribution lists. For international partners, notification will be sent to the World Trade Organization (WTO) through established processes and channels, when appropriate.
Step 2 – Analysis of Comments
The CFIA will undertake an analysis of all comments received during the notification period to determine whether any revisions to the proposal will be suggested to the third party. The CFIA will develop a strategy for addressing the situation where the third party does not accept any changes proposed. After analysis of the change, including any comments received, if the change is not one that the CFIA wishes to have incorporated, the CFIA can initiate a regulatory amendment to the regulations that incorporated the document, such that it will no longer be an ambulatory document, but instead reference the earlier version of the document or take some other measure, such as provide for a specific regulation or incorporation of its own (internal) document, either on a static or ambulatory basis.
Step 3 – Summary of Comments
Upon completion of the notification period, the CFIA will confirm that the comment period has ended, indicate if any comments were received, and post a summary of the comments made during the notification period. This information will be published on the CFIA external website, and communicated directly to the third party who maintains the document.
Step 4 – Final Publication of Modified Document
Once the other department or agency, or third party modifies and publishes its document, if the change is considered acceptable to the CFIA, the CFIA will provide access to the revised document through its website with an indication of when the change takes effect, along with the previous versions of the document.
If the CFIA determines that the change is not acceptable, then a regulatory process would be considered to change or remove the reference to the document in the regulations (either to remove it entirely, revise it to be a static reference to a past version of the document, or take some other appropriate measure, such as provide for a specific regulation or incorporation of its own (internal) document, either on a static or ambulatory basis.
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