Regulations Amending the Hazardous Products Regulations: SOR/2020-38

Canada Gazette, Part II, Volume 154, Number 6

Registration

SOR/2020-38 March 4, 2020

HAZARDOUS PRODUCTS ACT

P.C. 2020-73 February 29, 2020

Whereas, pursuant to section 19 footnote a of the Hazardous Products Act footnote b, the Minister of Health, while making amendments to the Hazardous Materials Information Review Act footnote c in 2019, consulted with the government of each province and with any organizations representative of workers, organizations representative of employers and organizations representative of suppliers that the Minister considered appropriate;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Health, pursuant to subsection 15(1) footnote d of the Hazardous Products Act footnote b, makes the annexed Regulations Amending the Hazardous Products Regulations.

Regulations Amending the Hazardous Products Regulations

Amendments

1 (1) Paragraphs 5.7(3)(a) and (b) of the Hazardous Products Regulations footnote 1 are replaced by the following:

(2) The portion of subsection 5.7(4) of the Regulations before paragraph (a) is replaced by the following:

(4) A supplier who receives notice of a determination made under the Hazardous Materials Information Review Act that their claim or a portion of their claim for exemption from a requirement to disclose information in respect of a hazardous product on a safety data sheet or a label is valid must, during the period beginning no later than the end of the applicable period specified in subsection (3) and on compliance with any order issued under subsection 14(1) or 18(1) of the Hazardous Materials Information Review Act, if applicable, and ending on the last day of the exemption period, in respect of the sale or importation of the hazardous product, provide on the safety data sheet and, if applicable, on the label of the hazardous product or container in which the hazardous product is packaged the following information:

(3) Paragraph 5.7(4)(b) of the English version of the Regulations is replaced by the following:

Coming into Force

2 These Regulations come into force on the day on which section 198 of the Budget Implementation Act, 2019, No. 1, chapter 29 of the Statutes of Canada, 2019, comes into force, but if they are registered after that day, they come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the regulations.)

Issues

The Hazardous Materials Information Review Act (HMIRA) was reviewed through the Treasury Board Secretariat’s targeted regulatory review in 2018. Subsequently, legislative amendments to the HMIRA were introduced in the Budget Implementation Act, 2019, No. 1, which received royal assent on June 21, 2019.

The Hazardous Products Regulations and Hazardous Materials Information Review Regulations reference now-obsolete concepts and provisions in the HMIRA that were affected by the amendments. In order to ensure continued coherence between these regulations and the HMIRA, consequential amendments to these regulations are needed.

Furthermore, the amendments to the HMIRA remove the provisions relating to appeals, appeal boards, the advisory council and superannuation of appeal board and council members. Consequently, the Hazardous Materials Information Review Act Appeal Board Procedures Regulations must be repealed.

Background

The Workplace Hazardous Materials Information System (WHMIS) is Canada’s national hazard communication standard. The key elements of the system are hazard classification, cautionary labelling of containers, the provision of safety data sheets, and worker education and training programs. This national system, which has been in place since 1988, is implemented through interlocking federal, provincial and territorial legislation.

At the federal level, the Hazardous Products Act and the Hazardous Products Regulations require suppliers that sell or import hazardous products intended for Canadian workplaces to classify the products and provide hazard information regarding the products through labels and safety data sheets. Suppliers are required to disclose in the safety data sheet, among other information, the chemical name and the concentration of hazardous ingredients in their products. If such information is considered confidential business information (CBI), the supplier may file a claim under the HMIRA to get an exemption from disclosure of that information on their safety data sheet.

Currently, Health Canada reviews the claim and the information provided in support of it and renders a decision on the validity of the claim and the compliance of the safety data sheet with the Hazardous Products Act and the Hazardous Products Regulations. Before the modernization of the HMIRA, a claimant or an affected party could file an appeal regarding a decision or order made by Health Canada under the HMIRA. An appeal board would be struck to hear and determine the outcome of the appeal, pursuant to the HMIRA and the Hazardous Materials Information Review Act Appeal Board Procedures Regulations. This appeal process was burdensome and very rarely invoked.

The HMIRA is 32 years old, and since the introduction of this Act in 1988, the context and technology have changed dramatically. The amendments to the HMIRA, via the Budget Implementation Act, 2019, No. 1, streamlined the review process of claims for CBI exemption, reassigned the authorities of the screening officers to the Minister of Health, removed the appeal process, introduced graduated enforcement tools, and will now allow the disclosure of CBI to protect human health or safety or the environment from a significant risk.

Objective

The objective of these regulatory amendments is to amend the Hazardous Products Regulations and the Hazardous Materials Information Review Regulations, and repeal the Hazardous Materials Information Review Act Appeal Board Procedures Regulations, to align with the amendments to the HMIRA that received royal assent on June 21, 2019, via the Budget Implementation Act, 2019, No. 1. The amendments are consequential in nature.

Description

Under the authority of the Hazardous Products Act, consequential amendments are being made to the Hazardous Products Regulations to align with amendments to the HMIRA as follows:

Under the authority of the HMIRA, consequential amendments are being made to the Hazardous Materials Information Review Regulations to align with amendments to the HMIRA as follows:

An additional amendment is being made to the Hazardous Materials Information Review Regulations to remove the language stating that a nurse needs to be registered or licensed, as it is sufficient that a nurse is entitled under the laws of a province to practise nursing and is practising under those laws.

Furthermore, as this presents an opportunity to modernize the existing text, the term “shall” is replaced with “must” in the Hazardous Products Regulations and the Hazardous Materials Information Review Regulations to align with the preferred legal term to express an obligation. The expression “as soon as practicable” was also replaced with “as soon as possible” in the Hazardous Materials Information Review Regulations.

Under the authority of the HMIRA, the Hazardous Materials Information Review Act Appeal Board Procedures Regulations are being repealed, as these Regulations are now obsolete.

Regulatory development

Consultation

In July 2018, a notice of consultation on the Treasury Board Secretariat’s targeted regulatory review was published in the Canada Gazette, Part I. footnote 2 Through this consultation, stakeholder groups were invited to provide their views on any federal requirements or practices that impede economic development, competitiveness, or growth.

In addition to this, WHMIS stakeholders and partners were consulted on three different occasions through the WHMIS Current Issues Committee footnote 3 and the Intergovernmental WHMIS Coordinating Committee. footnote 4 They expressed overall support for the modernization of the HMIRA and, where possible, their feedback was considered and incorporated into the amendments of the HMIRA that received royal assent on June 21, 2019, via the Budget Implementation Act, 2019, No. 1.

The regulatory amendments are needed as a result of the legislative amendments to the HMIRA. As the regulatory amendments are purely consequential to the legislative changes and no new regulatory requirements are being introduced, they have not been prepublished in the Canada Gazette, Part I.

Modern treaty obligations and Indigenous engagement and consultation

An initial assessment of this proposal concluded that there would be no impacts on Indigenous peoples. This conclusion was confirmed by conducting an Assessment of Modern Treaty Implications pursuant to the Cabinet Directive on the Federal Approach to Modern Treaty Implementation.

Regulatory analysis

Benefits and costs

These regulatory amendments are purely consequential to legislative amendments to the HMIRA. Therefore, it is estimated that no costs will be incurred as a result of the regulatory amendments. The qualitative benefit consists of better consistency and clarity in the regulatory framework.

Small business lens

The small business lens does not apply, as there are no associated impacts on businesses.

One-for-one rule

The amendments repeal the Hazardous Materials Information Review Act Appeal Board Procedures Regulations made under the HMIRA. The one-for-one rule applies since a regulatory title is removed.

The amendments to the Hazardous Materials Information Review Regulations and Hazardous Products Regulations will not have an impact on administrative burden, as the administrative and compliance activities will remain the same under both regulations.

Regulatory cooperation and alignment

An analysis was done as part of the HMIRA modernization; the regulatory regimes of Canada’s major trading partners were considered.

The current international standard for chemical hazard classification and communication is the Globally Harmonized System of Classification and Labelling of Chemicals (GHS). The GHS has been adopted by Canada’s major trading partners (e.g. the United States, the European Union). Canada adopted the GHS for workplace chemicals in accordance with the Canada-United States Regulatory Cooperation Council Joint Forward Plan. The Hazardous Products Regulations are aligned with the GHS.

Under the GHS, it is up to the implementing jurisdiction to consider what provisions may be appropriate for the protection of CBI. In the United States, industry can withhold CBI without submitting applications to the government. However, the mechanism that existed in Canada for the protection of CBI before the adoption of GHS required the submission of an application to Health Canada. In order to maintain the level of protection for workers in Canada when the GHS was implemented, this approach to CBI protection was retained. While the legislative amendments to the HMIRA, via the Budget Implementation Act, 2019, No. 1, modernized the process followed for the review of CBI claims, stakeholders will still be required to file a claim with the government. By extension, no changes have been made to the CBI approach in the consequential amendments to the Hazardous Materials Information Review Regulations.

Strategic environmental assessment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.

Gender-based analysis plus

No gender-based analysis plus (GBA+) impacts have been identified for this proposal.

Implementation, compliance and enforcement, and service standards

Implementation

The regulatory amendments are a result of, and consequential to, amendments to the HMIRA. The amendments to the HMIRA focus on modernizing Health Canada’s processes related to the review of claims for CBI exemption to make it more streamlined and predictable. The amendments to the HMIRA have no impact on how companies file claims for CBI exemption with Health Canada.

Health Canada is ready to implement any necessary program changes as a result of the amendments to the HMIRA. The performance measurement related to the administration of the Hazardous Materials Information Review Regulations will be incorporated into existing performance frameworks and will continue to be reported in Health Canada’s yearly report on fees.

As there is no impact on how companies file their claims for CBI exemption and the program is prepared for implementation, no transition period is proposed. The regulatory amendments will come into force on the day on which section 198 of the Budget Implementation Act, 2019, No. 1, which pertains to the HMIRA, comes into force, but if the Hazardous Products Regulations and the Hazardous Materials Information Review Regulations are registered after that date, they will come into force on the day on which these regulations are registered.

Compliance and enforcement

Health Canada will continue to review the validity of claims filed under the HMIRA to verify that the criteria established under subsection 3(1) of the Hazardous Materials Information Review Regulations, as amended, are met. The legislative amendments to the HMIRA and the consequential regulatory amendments do not change the information required to appear on a safety data sheet when a claim for a CBI exemption is filed or when an exemption is granted.

Service standards

Health Canada currently commits to issuing a registry number associated with a claim for CBI exemption within a service delivery standard of seven calendar days from the date of the receipt of a complete application under the HMIRA. This service standard is maintained and is not affected by the legislative amendments to the HMIRA or the consequential regulatory amendments.

Contact

Rosslynn Miller-Lee
Director
Workplace Hazardous Materials Bureau
Consumer and Hazardous Products Safety Directorate
Healthy Environments and Consumer Safety Branch
Health Canada
Telephone: 1‑855‑407‑2665
Email: hc.whmis-simdut.sc@canada.ca