Incorporation by reference of internal documents (closed)

In Canada, the process to make new regulations or change existing ones is subject to a thorough process (outlined in the Cabinet Directive on Regulation (CDR)) to make sure that the rules are effective, efficient, transparent, support innovation, promote competitiveness and limit unnecessary burden. Due to the volume, complexity and processes required to change regulations, it can sometimes take several years to make a regulatory change. As the regulatory process can take time, some tools are available to help speed up this process and make Canada’s regulatory system more modern, efficient and agile. One of the tools available to do this is a technique called Incorporation by Reference (IBR).

What is incorporation by reference (IBR)? 

IBR allows information related to the regulation to be put into a published document and reference that document in a regulation. This results in the content of the document having the same force of law as if that content had been directly included in the text of the regulations.

When is IBR valuable?

IBR is often used in situations where technical information or requirements are expected to change over time. This can include things like scientific test methods, where advances in science and technology are likely to create new and more accurate versions of those tests in the future. Another example is lists that are expected to be updated periodically, such as a list of allowable ingredients in certain kinds of products.

Ambulatory IBR

A specific type of IBR authority, referred to as ‘ambulatory’ IBR, allows the referenced documents to be updated without having to make a regulatory change each time. Ambulatory IBR allows future versions of the document to be automatically incorporated by reference. This allows requirements to be updated more quickly as the revised document is immediately recognized under the law. All federal organizations are already able to incorporate by reference documents created by external organizations (e.g., International standard setting bodies like the International Organization for Standardization (ISO)), on an ambulatory basis.

IBR of internal documents

Government documents that are created by the responsible regulatory organization are referred to as ‘internal documents’. These documents often contain technical or other information that is expected to change over time. When these kinds of documents are incorporated by reference, they have the same force of law, as if it was a regulation. However, to use this tool, Government organizations must generally have this authority outlined in their legislation, specifying that they can incorporate an internal document by reference. These documents should not be confused with guidance documents, which are also developed by regulators but are intended to assist in the interpretation of legislation and regulations. Guidance documents do not have the same force of law.

Some examples of the type of information that would be contained in an internal document that would be incorporated by reference is included below.

  • List of acceptable common names, words and descriptions that can be used on a product label instead of the scientific/technical name
  • Standardized wording to use on product labels to communicate information to consumers
  • Detailed steps for security requirements, such as how to securely protect items from theft
  • List of acceptable additives for a product – such as acceptable combinations of ingredients
  • List of the current plants or animals subject to specific regulatory requirements
  • Template formats for how information must be displayed or submitted
  • Additional technical details for how a test should be conducted - such as the conditions under which it should be done (temperature, humidity, light, length of time, etc.)
  • How the results of a test should be interpreted – such as a pass or fail threshold

How can IBR modernize Canada’s regulatory system?

The ability to incorporate by reference an internal document on an ambulatory basis is currently only available to certain federal regulators under select laws. This means that for other regulators, each time an internal document is updated, a regulatory change must be made, which can create unnecessary delays in the implementation of that document. As only certain regulators have this authority, it also creates inconsistencies in rulemaking ability across Government organizations. This can prevent parts of Canada’s economy from being able to benefit by having their rules updated to keep pace with change, creating market disadvantages for certain sectors, which could also impact international trade.

The need for transparency

Having the authority to update these technical internal documents on an ambulatory basis creates efficiency and speed but it means that changes could be made without the same level of oversight that would normally be applied for changes to regulations. Regulations and regulatory amendments are reviewed by the Treasury Board (TB) and approved by the Governor in Council (GIC), helping to ensure that the requirements of the Cabinet Directive on Regulation are followed. However, updates to IBR documents are reviewed and approved by the relevant regulatory organization, without TB and GIC oversight. As such, the flexibility and agility provided by IBR must be balanced by the responsible departments by taking the time needed to meaningfully consult and be transparent with impacted stakeholders.

It should be noted that the first time a document is incorporated by reference, a regulatory amendment must be made under the oversight of TB/GIC. This ensures that the regular regulatory process and oversight is applied at the beginning, which can help establish parameters for future changes to the internal document.

Example case study #1: List of pests regulated by Canada

The Canadian Food Inspection Agency (CFIA) maintains an internally developed list of ~300 pests (such as plants, pathogens and insects) regulated under the Plant Protection Regulations. As pests are identified as a threat to plant health or no longer thought to have the potential to cause harm, CFIA can more quickly update its list, without having to obtain approval to amend the regulations each time. This allows CFIA to be responsive to new threats to plant health or new or updated information about a pest's potential to harm Canada’s environment or natural resources.

Example case study #2 List of approved cultivars for the 2023 growing season

Health Canada maintains a list of the cultivars of hemp plants that are authorized to be grown each year. The list of approved cultivars can change every year and having this list incorporated by reference allows Health Canada to update the list quickly, in time for the start of each growing season, without having to amend the regulations. If regulations had to be amended each time, this process could take up to two years each time, which would not align with the need to make yearly updates to the list and time needed to plan and prepare for the short growing season in Canada. If the appropriate list of cultivars isn’t reflected in time, this could lead to competitive disadvantages for Canadian growers.

Share your thoughts

We are seeking your feedback on this legislative authority using the tools found below.

For assistance

Visit the Let’s Talk Federal Regulations 101 page to learn how:

  • to use the platform
  • to register and provide comments
  • your feedback will be reported back

For technical assistance, visit the Technical Support page.

In Canada, the process to make new regulations or change existing ones is subject to a thorough process (outlined in the Cabinet Directive on Regulation (CDR)) to make sure that the rules are effective, efficient, transparent, support innovation, promote competitiveness and limit unnecessary burden. Due to the volume, complexity and processes required to change regulations, it can sometimes take several years to make a regulatory change. As the regulatory process can take time, some tools are available to help speed up this process and make Canada’s regulatory system more modern, efficient and agile. One of the tools available to do this is a technique called Incorporation by Reference (IBR).

What is incorporation by reference (IBR)? 

IBR allows information related to the regulation to be put into a published document and reference that document in a regulation. This results in the content of the document having the same force of law as if that content had been directly included in the text of the regulations.

When is IBR valuable?

IBR is often used in situations where technical information or requirements are expected to change over time. This can include things like scientific test methods, where advances in science and technology are likely to create new and more accurate versions of those tests in the future. Another example is lists that are expected to be updated periodically, such as a list of allowable ingredients in certain kinds of products.

Ambulatory IBR

A specific type of IBR authority, referred to as ‘ambulatory’ IBR, allows the referenced documents to be updated without having to make a regulatory change each time. Ambulatory IBR allows future versions of the document to be automatically incorporated by reference. This allows requirements to be updated more quickly as the revised document is immediately recognized under the law. All federal organizations are already able to incorporate by reference documents created by external organizations (e.g., International standard setting bodies like the International Organization for Standardization (ISO)), on an ambulatory basis.

IBR of internal documents

Government documents that are created by the responsible regulatory organization are referred to as ‘internal documents’. These documents often contain technical or other information that is expected to change over time. When these kinds of documents are incorporated by reference, they have the same force of law, as if it was a regulation. However, to use this tool, Government organizations must generally have this authority outlined in their legislation, specifying that they can incorporate an internal document by reference. These documents should not be confused with guidance documents, which are also developed by regulators but are intended to assist in the interpretation of legislation and regulations. Guidance documents do not have the same force of law.

Some examples of the type of information that would be contained in an internal document that would be incorporated by reference is included below.

  • List of acceptable common names, words and descriptions that can be used on a product label instead of the scientific/technical name
  • Standardized wording to use on product labels to communicate information to consumers
  • Detailed steps for security requirements, such as how to securely protect items from theft
  • List of acceptable additives for a product – such as acceptable combinations of ingredients
  • List of the current plants or animals subject to specific regulatory requirements
  • Template formats for how information must be displayed or submitted
  • Additional technical details for how a test should be conducted - such as the conditions under which it should be done (temperature, humidity, light, length of time, etc.)
  • How the results of a test should be interpreted – such as a pass or fail threshold

How can IBR modernize Canada’s regulatory system?

The ability to incorporate by reference an internal document on an ambulatory basis is currently only available to certain federal regulators under select laws. This means that for other regulators, each time an internal document is updated, a regulatory change must be made, which can create unnecessary delays in the implementation of that document. As only certain regulators have this authority, it also creates inconsistencies in rulemaking ability across Government organizations. This can prevent parts of Canada’s economy from being able to benefit by having their rules updated to keep pace with change, creating market disadvantages for certain sectors, which could also impact international trade.

The need for transparency

Having the authority to update these technical internal documents on an ambulatory basis creates efficiency and speed but it means that changes could be made without the same level of oversight that would normally be applied for changes to regulations. Regulations and regulatory amendments are reviewed by the Treasury Board (TB) and approved by the Governor in Council (GIC), helping to ensure that the requirements of the Cabinet Directive on Regulation are followed. However, updates to IBR documents are reviewed and approved by the relevant regulatory organization, without TB and GIC oversight. As such, the flexibility and agility provided by IBR must be balanced by the responsible departments by taking the time needed to meaningfully consult and be transparent with impacted stakeholders.

It should be noted that the first time a document is incorporated by reference, a regulatory amendment must be made under the oversight of TB/GIC. This ensures that the regular regulatory process and oversight is applied at the beginning, which can help establish parameters for future changes to the internal document.

Example case study #1: List of pests regulated by Canada

The Canadian Food Inspection Agency (CFIA) maintains an internally developed list of ~300 pests (such as plants, pathogens and insects) regulated under the Plant Protection Regulations. As pests are identified as a threat to plant health or no longer thought to have the potential to cause harm, CFIA can more quickly update its list, without having to obtain approval to amend the regulations each time. This allows CFIA to be responsive to new threats to plant health or new or updated information about a pest's potential to harm Canada’s environment or natural resources.

Example case study #2 List of approved cultivars for the 2023 growing season

Health Canada maintains a list of the cultivars of hemp plants that are authorized to be grown each year. The list of approved cultivars can change every year and having this list incorporated by reference allows Health Canada to update the list quickly, in time for the start of each growing season, without having to amend the regulations. If regulations had to be amended each time, this process could take up to two years each time, which would not align with the need to make yearly updates to the list and time needed to plan and prepare for the short growing season in Canada. If the appropriate list of cultivars isn’t reflected in time, this could lead to competitive disadvantages for Canadian growers.

Share your thoughts

We are seeking your feedback on this legislative authority using the tools found below.

For assistance

Visit the Let’s Talk Federal Regulations 101 page to learn how:

  • to use the platform
  • to register and provide comments
  • your feedback will be reported back

For technical assistance, visit the Technical Support page.

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    Setting criteria around how this authority could be used will help ensure that the authority is used as intended across the federal regulatory system – in a transparent, accountable, and consistent manner. The following criteria are being considered for regulators to follow, when incorporating by reference internal documents:

    • Internally generated documents must be available free of cost and in both official languages. 
    • All previous versions of the incorporated documents must be made available so that it’s clear how requirements have evolved over time and what requirements were in place over which time period for enforcement purposes, and in the case of disputes. 
    • A centralized list of all incorporated documents must be made available so that stakeholders have quick and easy access to the information they need. 
    • Regulatory burden, including compliance and administrative burden, must be minimized to the extent possible. New regulatory burden should not be imposed through future updates to the document.  
    • To increase consistency, transparency and accountability of how internal documents are managed, the publication of a document management plan will be required for each document. This plan will outline how stakeholders will be consulted prior to changes, the transition period for implementing changes, and how changes to the document can be requested.

    Questions:

    We are seeking your input on any or all of the following questions:

    1. Are you aware of technical regulatory requirements that become outdated quickly (e.g., within less than two years) and pose a barrier to compliance that would benefit from being updated quicker than is currently possible?
    2. What types of changes to an internal document should require engagement with stakeholders? (ex. all changes, including administrative changes or corrections to errors? Only changes needing a transition period? Only changes affecting consumer facing information?). What steps would need to be taken to ensure that the engagement and consultation with stakeholders is meaningful?
    3. What other considerations would be important for departments using this tool?
    Replies Closed
Page last updated: 29 Jun 2023, 09:39 AM