Incorporation by Reference in the CNSC’s Regulatory Framework

This document outlines the approach and policy adopted by the Canadian Nuclear Safety Commission (CNSC) for the use of incorporation by reference (IBR) in CNSC regulations and regulatory documents. This document also represents an important component of the CNSC’s Red Tape Review, specifically the item to develop a item to develop a public policy for IBR. This policy demonstrates to regulated parties and members of the public how the CNSC uses IBR efficiently, effectively and responsibly to keep its regulatory framework responsive, agile and aligned with other regulators as needed.

Introduction

IBR is defined in the Treasury Board Secretariat (TBS) Guide to Incorporation by Reference in Federal Regulations (the Guide) as follows:

Incorporation by reference is a drafting technique that allows a document, or part of it, to be referenced and incorporated into a regulation without reproducing the text of the referenced document. The content of the document that is incorporated by reference is legally binding and is an integral part of the regulation.

In essence, IBR allows the CNSC to reference documents (such as standards, regulations, etc.) in its regulations and regulatory documents, giving those external documents the same weight as its regulatory framework items (see sections 2.4 and 2.6 for examples).

TBS has developed the Guide to set out best practices for federal regulators who are considering using IBR in their regulations. Under the Cabinet Directive on Regulation and the Policy on Regulatory Development, federal regulators are instructed to consider using IBR as a tool in achieving the desired regulatory outcomes.

The authority for a federal regulator to use IBR in regulations is provided in the Statutory Instruments Act (SIA) and may also be provided in the regulator’s enabling legislation, such as the Nuclear Safety and Control Act (NCSA).^{Footnote 1}

1.1 Rationale for the use of IBR

IBR provides several potential benefits to the CNSC’s regulatory framework.

1.1.1. Benefits of Incorporation by Reference

There are several reasons for making an IBR, including the following:

Scientific/engineering/technical expertise: Incorporating a highly technical document allows the CNSC to take advantage of technical expertise of accredited organizations and to include important scientific, engineering and technical criteria in its regulatory framework

Regulatory cooperation and alignment: The CNSC can use IBR to bring its regulatory framework in line with other Canadian and/or international regulators, to promote regulatory cooperation and alignment.

Respond to new science and innovation: IBR can allow the CNSC to quickly respond to changing situations and to rapidly implement the latest scientific or technical information or innovative processes or procedures directly and seamlessly into its regulatory framework.

Improve clarity and compliance: The CNSC can incorporate documents that are well known and well understood, to both itself and its licensees, providing clear regulatory requirements and simplifying regulatory compliance.

1.1.2. Lessons Learned from the CNSC’s use of IBR

IBR allows the CNSC to use address potential issues within its regulatory framework, identified through both operating experience and the development of regulations and regulatory documents:

• Duplication and paraphrasing of criteria from external sources in the CNSC’s regulatory framework: This increases the likelihood of copyright/intellectual property issues or transcription errors when reproducing third-party content. (IBR allows CNSC staff to point to existing documents in the CNSC’s regulatory framework, thereby avoiding these issues.)
• Unnecessarily long/complicated documents: IBR allows documents to be streamlined.
• Unclear sources of information/criteria
• Lack of alignment between documents that contain the same information when one of the documents is revised
• Lack of regulatory alignment domestically/internationally

Since IBR provides several opportunities to further enhance and modernize the CNSC’s regulatory framework, CNSC staff consider this tool in regulations and regulatory framework when the need to include external information arises.

1.2 Methods of IBR

The CNSC employs several techniques for the use of IBR in its regulatory framework, as shown in the following examples:

Single/multiple reference: Specific document(s) is(are) incorporated by reference.

• “A component must meet standard X/ standard X and standard Y.”

Alternative reference: Multiple documents are incorporated to provide options for complying with regulatory requirements.

• “A component must meet one of the following standards …”

Partial reference: Only specific sections, clauses, paragraphs, etc. of a document are incorporated by reference.

• “A component must meet section A of standard X.”

Qualified reference: An entire document is incorporated by reference, except for certain sections, clauses, paragraphs, etc.

• “A component must meet standard X, except for section A.”

The choice of the technique will depend on the specific regulatory need.

1.3 Types of IBR

There are 2 major types of IBR – static and ambulatory:

Static IBR: Static (fixed, specific date) IBR involves incorporating a specific version of the document. For example, a document published in a specific year, such as “CSA N285.4- 09” (a CSA Group Nuclear Standard entitled Periodic inspection of CANDU nuclear power plant components) for the 2009 version.

Static IBR allows the CNSC to review any changes to documents before incorporating them, as changes to the documents would not automatically be incorporated into the regulatory framework. This would allow the CNSC to maintain complete control over the regulatory requirements.

However, if a static approach is applied, and the CNSC would like the regulations to reference a new version of the document, then the regulations would need to be amended via the standard regulatory amendment process, which can be time consuming. This may cause issues within the CNSC’s regulatory framework, such as in cases such as when domestic or international regulatory alignment is important.

Ambulatory IBR: Ambulatory (dynamic, rolling) IBR refers to the incorporation of a document as the document changes over time (i.e., without a need to remake the regulation / regulatory document); for example, “CSA N285.4”, without the specific date referenced. An ambulatory reference to CSA N295.4 points to the current version of this standard, thereby including the most up-to-date changes within it and, by reference, within the regulatory instrument. In regulations, ambulatory IBR often includes the phrase “as amended from time to time” or “the latest edition of”.

Ambulatory IBR ensures that regulatory instruments stay current. This may be the main object of the regulatory instrument if alignment with other regulatory instruments is necessary. However, the drawback of ambulatory IBR is that the CNSC may not have any input in the development of the new documents, and there is the potential that the new document may not serve Canadians or achieve the regulatory policy objective as well as the previous documents.

1.4 Information Generally Considered for IBR

The following types of information/material are often considered for IBR and could be referenced in the CNSC’s regulatory framework:

• Standards: For example, standards generated by organizations accredited by the Standards Council of Canada, such as the Canadian Standards Association (CSA Group), or international standards from organizations such as the American National Standards Institute, the International Organization for Standardization or the International Electrotechnical Commission
• Legislation/regulations/conventions from other jurisdictions: For example, IAEA Regulations for the Safe Transport of Radioactive Material, or the Canada Labour Code (federal legislation)
• Index, rate or numbers: For example, Consumer Price Indexfrom Statistics Canada or rates from the Bank of Canada
• Documents produced by the regulator: For example, documents produced by the regulation-making authority (internal documents)

Under the current framework for IBR provided in the Statutory Instruments Act, the CNSC can only reference internal documents (CNSC-produced documents) in CNSC regulations using static IBR.

1.5 Consultation on IBR

The CNSC, along with other federal government departments and agencies, has consulted extensively on the use of IBR,.

1.5.1 CNSC Consultation

The CNSC had consulted on the use of IBR to support its regulatory modernization initiatives as part of DIS-14-02, Modernizing the CNSC’s Regulations. This discussion paper asked stakeholders about efficient use of IBR of standards/documents, as well as additional opportunities for IBR in the overall regulatory framework. In the associated What We Heard Report – DIS-14-02, the CNSC considered IBR to be important and would further explore areas where it could be used in its regulations.

1.5.2 Government of Canada Consultation

BR has been considered as part of recent federal government regulatory modernization initiatives. The Government of Canada had consulted on the potential increased use of IBR / incorporation of international standards as part of the International Standards: Targeted Regulatory Review – Regulatory Roadmap (2021). This consultation focused on the use of international standards to support regulatory cooperation, facilitate trade and foster innovation.

In the associated What We Heard: Report on Regulatory Modernization, commenters identified IBR of international standards in Canadian regulations as a key tool for promoting regulatory cooperation. Further, commenters proposed that additional amendments be made to federal laws to enable additional use of IBR in future annual regulatory modernization bills.

TBS further consulted on expanded used of IBR in the Annual Regulatory Modernization Bill (2022). This consultation focused on amending the SIA to grant the powers for ambulatory IBR of internal documents to all federal regulators. As detailed in the What We Heard Report, most organizations supported the proposal, but most individuals did not. Supporters noted several important themes of safeguards:

• Governance and accountability
• Stakeholder engagement and communication
• Document development and management

Concerns were raised on certain themes:

• Oversight and accountability
• Delegation of authority and complexity

Additional information on these themes may be found in the aforementioned What We Heard Report.

1.6 Examples of IBR in the CNSC Regulatory Framework

The CNSC has made use of IBR in its regulatory framework. Several examples are seen in the Packaging and Transport of Nuclear Substances Regulation, 2015 (PTNSR), where the following documents are incorporated:

• IAEA (ambulatory and static)
• ICAO Technical Instructions for the Safe Transport of Dangerous Goods by Air (ambulatory)
• International Maritime Dangerous Goods Code (ambulatory)
• ISO 7195: Nuclear Energy – Packagings for the transport of uranium hexafluoride (UF₆) (Ambulatory)

In the case of the PTNSR. these documents wereincorporated to improve international alignment, which is an important consideration for transporting nuclear substances across borders/countries.

In terms of regulatory documents, there are numerous examples of external documents (such as IAEA documents, CSA standards, and other codes, standards and guides) being incorporated by reference

1.7 IBR Policies of Other Federal Regulators

Federal regulators such as Health Canada and the Canadian Food Inspection Agency (CFIA) have developed their own processes and policies for IBR.

To aid federal regulators with incorporating standards by reference, the Standards Council of Canada has developed Guidelines for Incorporating Standards by Reference in Regulations to Support Public Policy Objectives, a document that also helped to inform the CNSC’sIBR policy.

2. Considerations for IBR

The CNSC uses IBR on a case-by-case basis when developing regulations and regulatory documents. The CNSC’s main criteria for determining whether to use IBR are explained in this section.

The CNSC is dedicated to the essential principles of clarity/consistency, reasonability, accessibility and transparency in the use of IBR within its regulatory framework. Furthermore, it is committed to extensive public engagement and consultation on this topic.

2.1 Key Considerations

When the CNSC is contemplating the use of IBR, there are several key considerations:

• Reasonability: Does the reference fit the regulatory/policy intent?
• Official languages: Is the document available in both official languages?
• Accessibility/cost: Is the document readily available online and is there a cost to access it? (Refer to sections 3.1.1 and 3.1.2 for additional information)
• Familiarity: reasonable to expect interested parties to be aware of the document?
• Frequency and significance of changes: How often does the reference change? Are the changes usually minor or major? The frequency and/or significance of changes may influence choice of static/ambulatory IBR.
• Clarity/consistency: Are the criteria in the document clearly stated, and is the document consistent with the criteria of the regulation or regulatory document referencing it?
• Multi-level references: Does the referenced document incorporate other references that must also be followed?
• Availability (static): Is the document expected to be available in the long term? Will previous versions of the document still be available after a new version is published (consideration for static references as the superseded instrument could be unavailable over time)?
• Maintainability (ambulatory): When the ambulatory reference changes, how do the CNSC and the regulated community stay aware ofnew versions?
• Transition period (ambulatory): Will there be a transition period for regulated parties to come into compliance with the new version of the document?
• Implementability (ambulatory): Will all regulated parties and regulatory staff (for example, inspectors) be awarewhen the new version of a document incorporated by reference comes into force?
• Trade implications (ambulatory): Do amendments to the reference trigger the transparency obligations in World Trade Organizationagreements, as well as Canada’s other free trade agreements?

2.1.1 Incorporation of Unilingual Documents in CNSC Regulations

In terms of its regulations, the CNSC aims to incorporate documents that are available in both official languages whenever possible. However, in some cases, such as for highly technical documents or documents that improve international regulatory cooperation, the document may be available in one language only. In this case, the associated the Regulatory Impact Analysis Statement for the regulations will provide the justification for IBR of the unilingual document. Further, to be consistent with the Policy on Regulatory Development, the CNSC provides its regulatory guidance documents in both official language.

2.1.2 Cost to Access Incorporated Documents in Regulations

Similarly, the CNSC strives to ensure that all documents incorporated into its regulations are available to interested parties at no cost; for example, it provides access to CSA standards viaits website. When considering whether to incorporate a document that has a cost to access, the CNSC will consider the reasonableness of the cost of access, as well as the total (cumulative) cost of access of all documents. In addition, the RIAS for the regulations will provide the rationale and justification for the cost(s) related to the incorporated documents.

2.2 Key Considerations

The CNSC will determine the appropriate type of IBR on a case-by-case basis. However, there are some general principles and recommendations for the best type of IBR to use in certain situations:

Situation/scenario	Recommended type of IBR
Ensure that exact criteria within a document are applied to meet a regulatory objective and that no changes to that criteria should be incorporated	Static Static referencing is recommended f exact criteria or technical solutions are required, or if there is significant uncertainty in the changes that could be made duringrevisions of the document.
It is expected that revisions may be made to the referenced documents, and that such changes are anticipated to continue to promote the regulatory objective(s).	Ambulatory Ambulatory referencing is recommended,given that there is no expected impact on the overall policy goals.
There is a need to reference to specific clauses, tables, figures or appendices of an instrument, or exclude certain clauses, tables, figures or appendices (i.e., partial or qualified methods of IBR).	Static Static referencing is recommended, as any revisions to the standard could lead to changes in its internal numbering and cause a reference to a table or figure in a regulation to deviate from the new numbering in the revised standard. Static referencing ensures that a regulation continues to reference a specific clause, table, figure or appendices.
There is a need to ensure/maintain domestic or international regulatory alignment/co-operation.	Ambulatory Ambulatory IBR is recommended to ensure all regulators / regulatory frameworks maintain alignment/harmonization.
The document will be applied to a regulated community that is experiencing rapid technological developments.	Ambulatory Ambulatory IBR is recommended, given that rapid technological development requires quick changes to the regulatory framework.

The CNSC will consider this guidance and best practices to ensure that it selects the most appropriate type of IBR.

3. Process for Incorporating Documents into the CNSC Regulatory Framework

The CNSC follows detailed, structured processes for the analysis and development of regulations and regulatory documents, as well for IBR within its regulatory framework.

3.1 Process for Incorporating Documents into CNSC Regulations

As a federal regulator, the CNSC follows the Government of Canada’s established process to develop regulations. When the CNSC considers the use of IBR, it will engage with interested parties on the proposed document(s) to be incorporated and refine its regulatory proposal after this engagement. If IBR deemed the most effective tool, the CNSC will work with Department of Justice staff to develop the draft regulations with the proposed IBR. Interested parties will have a further opportunity to provide feedback on proposed use of IBR during the official regulation consultation period, where proposed regulations are published in The Canada Gazette, Part I. The RIAS that accompanies the draft regulations will detail the analysis and rationale for IBR, and interested parties may provide comments on the information in the RIAS as well.

Feedback received at this time on the use of IBR will help inform the final regulations. After the regulations have been revised, they will be presented to the Commission to make the regulations, then provided to the Minister of Natural Resources for the recommendation, sent to the Privy Council Office and finally to the Treasury Board for approval. At that stage, the regulations will be final and published in the The Canada Gazette, Part II. The published regulations will include the documents incorporated by reference.

3.2 Process for Incorporating Documents into CNSC Regulatory Documents

In terms of regulatory documents, the CNSC would propose the use of IBR and the document(s) to be incorporated as part of any early engagement activities. Once the draft regulatory document reaches public consultation and is posted for public review and comment, interested parties will have the opportunity to provide feedback to CNSC staff on the use of IBR, as well as the documents proposed to be incorporated. CNSC staff will review all feedback, which will inform the final version of the regulatory document. The final regulatory document would then be presented to the Commission for review and acceptance, before being published on the CNSC website.

3.3 Process for Monitoring Updates and Providing Notification of Documents Incorporated by Reference in CNSC Regulations and Regulatory Documents

A key responsibility for a federal regulator when using incorporated documents is to remain up-to-date on the development and publication of new versions of the incorporated documents. For the CNSC, some of the most common documents incorporated by reference in regulatory documents are CSA standards and IAEA standards. Certain CNSC regulations also incorporate IAEA documents, regulations from other regulators, external standards, and Government of Canada acts.

CNSC staff remain aware of updates to federal acts through normal channels and communications with the broader Government of Canada.

CNSC staff are often involved as contributors or working group members in the development of IAEA documents and CSA standards, allowing it to remain abreast of potential changes to incorporated documents, as well as any new published versions. Impacted licensees are often contributors to those documents as well, keeping them informed of any potential changes to the referenced documents.

The process is similar for other documents developed by third-party organizations. CNSC staff are often contributors and/or members of working groups for those documents, so it remains aware of potential changes to those documents along with the latest published versions. Licensees who are subject to the regulations referencing those documents are also often contributors, making them aware of changes to the incorporated documents. While this is not the case for every document incorporated by reference, CNSC staff nevertheless strive to remain aware of any changes to standards and new published versions.

In all cases, the organization who develops the standard/document will often provide notification (either publicly or to working group members) that a new version of the document is under development/published, to keep impacted parties informed. When necessary, the CNSC also provides information on incorporated documents on its website. In addition, the Standards Council of Canada monitors and assess standards incorporated into federal regulations and works with federal regulators to ensure incorporated standards remain accessible.

The CNSC maintains an internal list of documents incorporated in its regulations and updates that list whenever new/amended regulations are published, including new/amended references. To obtain the list of incorporated documents, please contact the CNSC at consultation@cnsc-ccsn.gc.ca.

Annex A of this document provides an example of how users are notified of a new version of a document incorporated in existing CNSC regulations.

3.3.1 Transition Periods for Ambulatory IBR

A transition period may be included in a regulation when an ambulatory reference is used. This transition period provides the regulated community with a certain amount of time to become compliant with a new version of an incorporated document. The CNSC does not maintain a single standard transition period, as that period is determined on a case-by-case basis. When a transition period is used, it is included directly in the regulations.

The CNSC considers several factors when determining if a transition period is required, including the level of risk of the licensed activity, the level of complexity of the incorporated document, and the frequency/magnitude of changes to the document. Transition periods are also needed when an incorporated document has international trade considerations, as required by the Cabinet Directive on Regulation.

Annex A gives an example of a transition period in existing CNSC regulations.

4. Responsibilities of the CNSC for IBR

The CNSC has several responsibilities when using IBR in its regulatory framework. This includes monitoring the incorporated document to ensure:

• continued access for interested parties
• alignment with its regulatory policy
• prevention/mitigation of unintended consequences
• accurate references in its regulatory framework.

If an incorporated document changes and the new version of it do not align with the CNSC’s policy goals, the CNSC may need to revise its framework in order to revise or remove the reference to that document.

Additionally, the CNSC will consult with interested parties on the use of incorporated documents during its public consultation periods for regulatory framework items. This will allow interested parties to provide feedback on the potential incorporated documents.

5. Summary and Conclusion

IBR allows federal regulators like the CNSC to include external documents in their regulatory framework to achieve regulatory policy goals. With careful consideration of key principles, the CNSC can use IBR to take advantage of scientific and technical expertise, align its regulatory framework with other regulators, and adapt to changing regulatory challenges and opportunities. Going forward, the CNSC will consider an increased use of incorporation by reference as part of its continued efforts to enhance and modernize its regulatory framework.

6. Glossary

incorporation by reference (IBR): a drafting technique that allows a document, or part of it, to be referenced and incorporated into a regulation without reproducing the text of the referenced document. The content of the document that is incorporated by reference is legally binding and is an integral part of the regulation.

(Source: Guide to Incorporation by Reference in Federal Regulations)

ambulatory (dynamic, rolling) IBR: a second way to incorporate by reference whereby a document is referenced and incorporated in the regulation together with any future changes made to that document, without the need for a regulatory amendment. In this way, any future changes made to the incorporated document are automatically incorporated into the regulation without the need for the regulation-making authority to amend its text.

(Source: Guide to Incorporation by Reference in Federal Regulations)

static (fixed, specific date) IBR: One of 2 ways to incorporate by reference whereby only the version of the document described in the regulation and referred to by a particular date is incorporated, and any subsequent version can be incorporated only through a regulatory amendment.

(Source: Guide to Incorporation by Reference in Federal Regulations)

external document: a document generated (or produced, developed) by a third party (person or body) external to the regulation-making authority, which may be incorporated by reference depending on the relevant regulatory authorities.

(Source: Guide to Incorporation by Reference in Federal Regulations)

internal document: a documents generated internally by the regulation-making authority, either alone or jointly with a person or body in the federal public administration, which may be incorporated by reference depending on the relevant regulatory authorities.

(Source: Guide to Incorporation by Reference in Federal Regulations)

regulatory document: a document that presents requirements and guidance to licensees and applicants for how to meet the requirements set out in the Nuclear Safety and Control Act and the regulations made under the it. These documents form a key part of the CNSC’s regulatory framework for nuclear activities in Canada.

(Source: Regulatory framework overview)

Regulatory Impact Analysis Statement (RIAS): An evidence-based, non-technical synthesis of expected impacts, positive and negative, of a proposed regulation. It is published in the Canada Gazette with the text of the proposed regulation. Regulators prepare RIASs with guidance from TBS.

(Source: Policy on Regulatory Development – Canada.ca)

7. References

1. Cabinet Directive on Regulation
2. Policy on Regulatory Development
3. TBS Guide to Incorporation by Reference in Federal Regulations (2024)
4. Guidelines for Incorporating Standards by Reference in Regulations to Support Public Policy Objectives
5. Statutory Instruments Act
6. Incorporation by Reference in Regulations Act
7. International Standards: Targeted Regulatory Review – Regulatory Roadmap
8. What We Heard Report (Regulatory Modernization)
9. incorporation by reference of internal documents (Annual Regulatory Modernization Bill)
10. What We Heard Report (Consultation on Annual Regulatory Modernization Bill)
11. CFIA Incorporation by Reference Policy - Canadian Food Inspection Agency (canada.ca)
12. Health Canada Incorporation by Reference Policy - Canada.ca
13. DIS-14-02, Modernizing the CNSC’s Regulations
14. What We Heard Report – DIS-14-02
15. Standing Joint Committee for the Scrutiny of Regulations, Report No. 92 – Accessibility of Documents Incorporated by Reference in Federal Regulations – Reply to the Government Response to Report No. 90), 421_REGS_Rpt04-e.pdf (parl.ca)
16. Government Response to Report No. 92 – Accessibility of Documents Incorporated by Reference in Federal Regulations – Reply to the Government Response to Report No. 90, https://www.parl.ca/content/Committee/421/REGS/GovResponse/RP10003510/421_REGS_Rpt04_GR/421_REGS_Rpt04_GR-e.pdf
17. How new laws and regulations are created

Annex A: Examples of Transition Periods for Documents Incorporated by Reference in CNSC Regulations

This annex provides examples of transition periods, as well as notifications of changes to incorporated documents in CNSC regulations.

Example of a transition period:

The Packaging and Transport of Nuclear Substances Regulations, 2015 (PTNSR), which incorporate the IAEA’s Regulations for the Safe Transport of Radioactive Material by reference, as follows:

Incorporation by reference of IAEA Regulations

1 (2) For the purposes of these Regulations, the incorporation by reference of any particular amendment of the IAEA Regulations is effective two years after the day on which the amendment is initially published by the IAEA or six months after the day on which the amendment is available in both of the official languages of Canada, whichever is later.

(Note: section 1 is on definitions in which titles of these documents are stated)

Example of notification:

The PTNSR also include requirements for the CNSC to provide the most recent date of the incorporated document on its public website, as shown below:

Notice of effective date

1 (3) The Commission must note the effective date of the incorporation by reference on its website

Therefore, the CNSC keeps interested parties informed regarding the most recent version of the IAEA document using its website: Packaging and transport of nuclear substances.