Canadian Grain Commission Policy on Incorporation by Reference

1. Introduction

Guided by the Canada Grain Act, the Canadian Grain Commission’s (CGC) mandate is to, “in the interests of the grain producers, establish and maintain standards of quality for Canadian grain and regulate grain handling in Canada, to ensure a dependable commodity for domestic and export markets”. Our research, programs and services help support Canada’s reputation as a consistent and reliable source of high-quality grain.

The CGC strives to use outcome-based regulatory approaches that reduce compliance burden and support innovation while achieving policy and regulatory objectives. One of the regulatory tools available to the CGC is “Incorporation by Reference” (IBR). IBR is a term used to describe a mechanism which introduces the content of a document (such as, a policy, directive, list, or standard) into a regulation without having to reproduce the document’s text in the regulation. Once a document is incorporated by reference into regulations, the incorporated wording has the same effect as if it appeared in the regulations.

IBR enables the CGC to leverage existing documents and maintain an agile responsive regulatory system that can adapt more quickly to changes in the grain sector, stakeholder concerns, or emerging risks. For example, Chapter 2 of the Sampling Systems Handbook and Approval Guide, which outlines the CGC’s requirements for automatic sampling systems used for grain receipt and discharge at licensed grain handling facilities, is incorporated by reference in the Canada Grain Regulations. This allows the CGC to update requirements for automatic sampling systems for licensed grain handling facilities in a timelier manner in response to technological advances in grain sampling.

2. Purpose

The purpose of this policy is to set out the CGC’s framework for the identification, development and management of documents incorporated by reference into the Canada Grain Regulations.

3. Objectives

The objectives of this policy are to:

• describe the sources of authority for IBR into the Canada Grain Regulations;
• specify CGC roles and responsibilities related to IBR;
• set out the general principles that guide selecting and modifying incorporated documents; and
• outline the process for document selection, modification and maintenance.

This policy builds on the foundation provided by the Cabinet Directive on Regulation and the Treasury Board of Canada Secretariat’s Policy on Regulatory Development, which include matters relating to IBR.

4. Scope

This policy applies to all documents incorporated by reference into the Canada Grain Regulations.

5. Definitions

6. Authorities

The Statutory Instruments Act (sections 18.1 through 18.7) grants authority for IBR made under any Act of Parliament, including ministerial regulations, provided certain conditions are met. This authority is limited to incorporating a static reference, unless specific authority is provided under a regulatory statute (i.e., the Canada Grain Act) that allows for ambulatory incorporation by reference.

The Canada Grain Act, subsection 118.1(1), specifically provides the CGC the authority to incorporate a document by reference under certain conditions. It states that a regulation made by the CGC under the Canada Grain Act 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. Authorities in the Canada Grain Act have a broader application and are not limited by authorities in the Statutory Instruments Act.

7. Roles and responsibilities

The CGC’s responsibilities in relation to IBR include:

1. Developing CGC documents for incorporation by reference;
2. Contributing to the development of third-party documents to be incorporated by reference where possible, in collaboration with the organization developing the document;
3. Incorporating documents by reference into regulation according to the regulatory development process, including development of a Regulatory Impact Analysis Statement with rationale;
4. Notifying and consulting with internal and external stakeholders;
5. Facilitating access to IBR documents;
6. Administering modifications made to CGC IBR documents;
7. Reviewing modifications made by third-parties to documents incorporated by reference;
8. Monitoring IBR documents to verify continued contribution to policy and regulatory objectives; and
9. Managing the inventory of IBR documents.

8. Guiding principles

It is the duty of the CGC to respect the authorities granted by Parliament, as expressed in legislation, and to ensure that regulations protect and advance the public interest and support good government. In fulfilling this duty, the CGC selects, develops, reviews and maintains documents incorporated by reference guided by the principles of transparency, reasonability, consistency, and accessibility.

Transparency:

A CGC document to be incorporated by reference is developed, reviewed, and maintained in an open and transparent way that meaningfully engages stakeholders. The CGC seeks to ensure that similar principles and processes are followed with third-party documents that are to be incorporated by reference.

Reasonability:

The CGC adopts an evidence-based approach for the use of incorporation by reference, which can include flexibility to incorporate efficient practices used by the grain sector or reflect the latest scientific evidence.

Consistency:

The CGC follows a consistent process when using incorporation by reference, for modifying internal CGC documents incorporated on an ambulatory basis, and for reviewing changes to third-party documents incorporated on an ambulatory basis.

Accessibility:

Ensuring the accessibility of documents incorporated by reference is an important rule-of-law-based principle and is codified in several laws, including subsection 18.3(1) of the Statutory Instruments Act. As such, the CGC ensures that incorporated documents can be easily found with a reasonable amount of effort and at a reasonable cost. Consistent with Canada's Official Languages Act, all CGC-generated documents are available in both English and French. Unilingual third-party documents can be incorporated by reference when there is a legitimate reason to do so. In this case, the CGC issues guidance in both official languages (see Treasury Board of Canada Secretariat’s Policy on Regulatory Development).

9. Incorporating by reference a document into regulation

Document Selection

Following the guiding principles in section 8, the CGC uses a consistent approach to identify, develop, review and publish CGC documents or third-party documents that may be appropriate for incorporation by reference as part of the Canada Grain Regulations.

Prior to incorporating a document by reference, the CGC conducts a case-specific analysis and considers several key factors including:

• Whether the document is a CGC publication or a third-party document;
• Whether the incorporation is to be static or ambulatory, and an accompanying rationale;
• The document’s intended purpose and whether incorporating the document facilitates responsiveness to grain sector needs;
• If the document is consistent with the CGC mandate and its impact on CGC programs;
• Stakeholder acceptance levels of the document's content (e.g., regulated parties, academia, grain producers, international customers);
• Potential impacts to regulated parties to comply with the incorporated document; and
• All international obligations with respect to trade.

As the authors of third-party documents manage the development and maintenance of their documents, prior to incorporating a third-party document by reference the CGC also considers:

• The document’s source;
• The scientific, technical and other relevant forms of rigour with which the document was developed;
• The document's relevance to the Canadian grain sector context;
• The process by which the document is revised and how often;
• The accessibility of previous versions of the document;
• The extent of CGC participation and involvement in potential modifications to the document;
• The document's availability in both official languages and if applicable, the ability to provide a justification for selecting a unilingual external document; and
• Costs associated, if any, with accessing the document and/or copyright issues.

At a minimum, a document must meet legal requirements for incorporation and adhere to this policy's guiding principles.

Process and Consultation

If a document is determined to be appropriate for incorporation by reference, the CGC develops a regulatory proposal. The Regulatory Impact Analysis Statement that accompanies a regulatory proposal involving a document to be incorporated by reference includes the supporting rationale for selecting the document. In addition, the Regulatory Impact Analysis Statement includes an analysis of any projected costs or benefits attributed to the proposed document for incorporation.

As part of the regulatory process, the Department of Justice is asked to review the Regulatory Impact Analysis Statement, document(s) proposed for incorporation by reference, as well as any modifications to the document(s), and advise the CGC of any related legal considerations, potential limits or risks. The CGC then determines if it wishes to proceed with publishing the regulatory proposal referencing the document(s) to be incorporated by reference in the Canada Gazette. Treasury Board of Canada must approve the proposal for it to be published in the Canada Gazette, Part I and/or Part II. In addition, the proposal to include an IBR document needs to meet Canada's international obligations.

If pre-published in the Canada Gazette, Part I, the CGC notifies stakeholders and provides an opportunity to comment on the regulatory proposal. The CGC takes any comments received into consideration, as appropriate, before final publication in the Canada Gazette, Part II. The Governor in Council, on the advice of the responsible Minister, makes the final determination of accepting or rejecting the regulatory proposal.

Once the regulatory proposal is published in the Canada Gazette, Part II, the CGC updates its online Documents Incorporated by Reference inventory to include a link to locate the document(s) incorporated by reference in the regulations in both official languages, as applicable. Relevant guidance is also available, when applicable.

10. Modifying a document(s) incorporated by reference

Documents incorporated by reference may periodically require amending for a number of reasons including in response to new scientific or technological advances, feedback from stakeholders, or technical or administrative updates. Changes that are administrative in nature do not impact policy or the technical requirements outlined in the document incorporated by reference. They can also include consequential changes resulting from an amendment to the Canada Grain Act or Canada Grain Regulations. Significant changes are those that impact policy or compliance requirements and result in substantive changes to the document incorporated by reference. They may also be urgent in nature, such as to address an immediate risk to health or safety.

When modifications are proposed to an existing document incorporated on a static basis, an amendment to the Canada Grain Regulations is always required to update the reference found in the regulations. In this instance, the CGC follows the required regulatory amendment process.

When modifications are proposed to an existing document incorporated on an ambulatory basis, the CGC considers the potential impact on administrative burden and the original regulatory impact analysis. From this information, the CGC determines the proper course of action. This could include moving forward with modifying an internal CGC document, accepting a modification to an external document, or pursuing another regulatory alternative.

Modifications to ambulatory incorporated documents are done administratively and do not go through the Canada Gazette regulatory process. However, to support transparency, the CGC follows two distinct processes to modify an ambulatory document dependent on if the document is an internal CGC document or an external third-party document. Annex A provides a detailed description of these processes.

For internal CGC documents, the CGC manages all proposed modifications. Modifications are made only after thorough assessment, legal input, and approval by the appropriate authority levels within the CGC. The CGC notifies all impacted domestic and international stakeholders of any proposed modifications. If proposed modifications have the potential to impact international grain trade, the CGC adheres to requirements for notification in accordance with Canada's international obligations. Stakeholders are provided an opportunity to comment, unless the proposed modification addresses an immediate risk to health or safety, is a minor administrative adjustment or is a consequential modification required to align with another regulatory process. If stakeholder consultations are held, the CGC provides a summary of the comments received on its website and indicates if it plans to adopt the modification(s) through a notification.

For external third-party documents, the document's administrator is responsible for proposed modifications. However, the CGC works with the responsible party to receive timely notice of any upcoming modifications and directs stakeholders to consultations or comment periods held by the responsible party, and to any summaries developed, if applicable.

Once a new version of an incorporated document is in effect, the CGC updates its Documents Incorporated by Reference inventory, as necessary. Previous versions of the IBR document(s), along with a summary of the modifications, are archived, when feasible.

Applying a transition period may be considered for regulated parties to adjust their practices and procedures to the modified ambulatory document. The length of the transition period is based on considerations relating to the readiness of impacted stakeholders, including the time needed to adjust for compliance.

11. References

Cabinet Directive on Regulation
Treasury Board Policy on Regulatory Development
Guidelines for Incorporating Standards by Reference in Regulations to Support Public Policy Objectives (Standards Council of Canada)

Internal Documents

For ambulatory CGC-generated documents incorporated by reference, the CGC adheres to the following process when modifying an existing document:

External Documents

When the CGC is aware that an Other Government Department or third-party intends to modify an existing incorporated document, the CGC adheres to the following process: