CFIA's Incorporation by Reference Policy - Questions and Answers
1. What is "incorporation by reference"?
Incorporation by reference is a drafting technique that allows a document that is not in the text of a regulation to be made part of the regulation by clearly referring to the applicable incorporated document in the regulation. Where there is a broad legislative authority to incorporate by reference, such documents could be from any source, including a government department or agency, or a third party. Examples could be a document developed by CFIA setting out a list of requirements pertaining to a regulation it administers or a document setting standards established by an international body.
Documents incorporated by reference have the same force of law as the regulation in which they are incorporated.
Documents can be incorporated as they exist at a specific point in time (static) or as they are amended from time to time (ambulatory).
2. What are the benefits of using this drafting technique?
Incorporation by reference, whether static or ambulatory, has the advantage of making the content of the incorporated document binding, without reproducing it in the regulation, thereby reducing the amount of legislative text that is required to be published. Depending on the document, it may already be familiar to regulated parties, thereby promoting compliance, and it may promote harmonization with laws and standards of other jurisdictions or international bodies.
Incorporating documents on an ambulatory basis, if appropriate, benefits industry, stakeholders, and the government by providing a flexible drafting tool that can respond to new science and technology. For example, it can take between 12 to 18 months to add new text to a regulation once the scientific, policy, and/or safety reviews are complete. By incorporating a document on an ambulatory basis into a regulation, the time between completing the review and amending the document being incorporated is substantially reduced, since it would not need to go through the Canada Gazette process.
3. Why introduce a CFIA Incorporation by Reference Policy?
The policy outlines the general principles that the CFIA will follow when identifying documents appropriate for incorporation by reference, as well as the process the CFIA will follow when any changes are made to those documents. It is based on the guiding principles of accessibility, transparency, consistency, reasonableness and clarity.
4. How will the CFIA demonstrate that incorporation of a document by reference in a regulation is the most appropriate instrument choice in addressing a policy need?
The CFIA will set out the rationale for choosing to use incorporation by reference as a tool in the Regulatory Impact Analysis Statement (RIAS) related to the applicable regulation. Factors include the source of the document, its intended purpose, trade implications and language. After Treasury Board reviews the RIAS, it is made available for consultations with stakeholders through publication in the Canada Gazette, Part I. 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.
5. How will the CFIA ensure that regulations stay up to date with changes to the incorporated documents?
For static incorporations, changes to the document would require a regulatory change to be made that refers to the new version of the document.
For ambulatory incorporations, approved changes to documents would take effect immediately upon finalization of the changed document, without a regulatory amendment. Prior to the change being finalized, however, the process set out in Annex A of the policy would be followed to ensure that stakeholders, including international trading partners, are notified and given the opportunity to comment on the proposed change to the document. The revised document (and previous incorporated documents) would be made accessible to regulated parties on the CFIA website.
More questions on interpreting and clarifying the IbR policy?
Regulatory, Legislative and Economic Affairs Division
Program, Regulatory and Trade Policy Directorate
Policy and Program Branch, CFIA
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