Regulations Amending the Hazardous Materials Information Review Regulations

Vol. 142, No. 19 — September 17, 2008

Registration

SOR/2008-261 September 5, 2008

HAZARDOUS MATERIALS INFORMATION REVIEW ACT

P.C. 2008-1609 September 5, 2008

Whereas, pursuant to subsection 48(1) (see footnote a) of the Hazardous Materials Information Review Act (see footnote b), the Minister of Health has consulted with the government of each province and such organizations representative of workers, organizations representative of employers and organizations representative of suppliers as the Minister deemed appropriate;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Health, pursuant to subsection 48(1) (see footnote c) of the Hazardous Materials Information Review Act (see footnote d), hereby makes the annexed Regulations Amending the Hazardous Materials Information Review Regulations.

REGULATIONS AMENDING THE HAZARDOUS MATERIALS INFORMATION REVIEW REGULATIONS

AMENDMENTS

1. Subsection 2(1) of the Hazardous Materials Information Review Regulations (see footnote 1) is amended by adding the following in alphabetical order:

“electronic document” means data that is recorded or stored on any medium in or by a computer system or other similar device and that can be read or perceived by a person or a computer system or other similar device. It includes a display, printout or other output of that data. (document électronique)

“electronic signature” means a signature that consists of one or more letters, characters, numbers or other symbols in digital form incorporated in, attached to or associated with an electronic document and that results from the application by a person of a technology or process that permits the following to be proved :

(a) the signature resulting from the use by a person of the technology or process is unique to the person;

(b) the technology or process is used by a person to incorporate, attach or associate the person’s signature to the electronic document; and

(c) the technology or process can be used to identify the person using the technology or process. (signature électronique)

2. Section 8 of the Regulations and the heading before it are replaced by the following:

MANNER OF FILING A CLAIM AND INFORMATION TO BE CONTAINED IN A CLAIM

8. (1) A claim for exemption shall be in writing, shall bear the written or electronic signature of the claimant or a facsimile of the signature of the claimant, shall be dated by the claimant and shall contain

(a) the name, address, telephone number and, if applicable, the facsimile number and electronic mail address of the claimant;

(b) the name, address, telephone number and, if applicable, the facsimile number and electronic mail address of an individual who can be contacted in respect of the claim, if the information is different from that required under paragraph (a);

(c) a statement identifying the claim as either an original claim or a refiled claim;

(d) a statement indicating whether the claimant is a supplier or an employer;

(e) if the claim is made by a supplier, a statement identifying the subject-matter of the information for which the claim is made as being one or both of the following:

(i) the chemical identity or concentration of an ingredient of a controlled product, and

(ii) the name of a toxicological study that identifies an ingredient of a controlled product;

(f) if the claim is made by an employer, a statement identifying the subject-matter of the information for which the claim is made as being one or more of the following:

(i) the chemical identity or concentration of an ingredient of a controlled product,

(ii) the name of a toxicological study that identifies an ingredient of a controlled product,

(iii) the chemical name, common name, generic name, trade name or brand name of a controlled product, and

(iv) information that could be used to identify a supplier of a controlled product;

(g) the following in respect of the controlled product related to the claim :

(i) its product identifier,

(ii) if the claim is a refiled claim, the registry number of the preceding claim filed in respect of that controlled product, and

(iii) if the claim relates to an ingredient of the controlled product, the generic chemical identity, the specific chemical identity and the CAS registry number, if any, of the ingredient.

(2) A claim for exemption submitted under subsection (1) shall not contain any false or misleading information.

INFORMATION SUBSTANTIATING A CLAIM FOR EXEMPTION

8.1 The following information is required, at the request of a screening officer under subsection 13(1.1) of the Act, for the purpose of substantiating a claim for exemption from the disclosure of information :

(a) the number of employees, officers or directors of the claimant who have knowledge of or access to the information;

(b) whether, to the knowledge of the claimant, any persons inside or outside Canada other than persons referred to in paragraph (a) have knowledge of or access to the information and, if so and the number is known to the claimant, the number of those persons;

(c) the details of the measures implemented by the claimant in order to restrict knowledge of or access to the information, including the measures relating to site security, document security and computer security that have been implemented for that purpose;

(d) whether or not each person who, to the knowledge of the claimant, has knowledge of or access to the information has signed a confidentiality agreement in respect of that information;

(e) a statement indicating the amount of money spent or other business resources used to develop the information, if the claimant considers that amount or those resources to be substantial in the circumstances, and why the claimant considers that amount or those resources to be substantial in the circumstances; and

(f) either

(i) the estimated value of the material financial loss to the claimant that would result if the information for which the claim for exemption is made were disclosed, including the method of calculation used to determine that value, and an explanation of why the claimant considers that the financial loss would be material, or

(ii) the estimated value of the material financial gain to the claimant’s competitors that would result if the information for which the claim for exemption is made were disclosed, including the method of calculation used to determine that value, and an explanation of why the claimant considers that the financial gain would be material.

3. Section 9 of the Regulations is amended by striking out the word “or” at the end of paragraph (a), by adding the word “or” at the end of paragraph (b) and by adding the following after paragraph (b):

(c) by transmitting it by any electronic means, including facsimile or electronic mail, to the head office of the Commission, if the Commission has the necessary facilities for accepting the secure transmission of the claim by that means.

4. (1) The portion of section 11.2 of the Regulations before paragraph (a) is replaced by the following:

11.2 Every notice published under subsection 18(1) of the Act in respect of a decision, order or undertaking shall contain the following information:

(2) Paragraphs 11.2(d) to (f) of the Regulations are replaced by the following:

(d) the date of the decision, the order or the notice referred to in subsection 16.1(3) of the Act confirming compliance with the undertaking;

(e) sufficient information to indicate the purport of and the reasons for the decision, order or undertaking; and

(f) the period within which the decision, order or undertaking may be appealed.

COMING INTO FORCE

5. These Regulations come into force on the later of the day on which they are registered and the day on which sections 1, 2 and 8 of An Act to amend the Hazardous Materials Information Review Act , being chapter 7 of the Statutes of Canada, 2007, come into force.

REGULATORY IMPACT
ANALYSIS STATEMENT

(This statement is not part of the regulations.)

Description

Established by Cabinet in 1987, the Hazardous Materials Information Review Commission (HMIRC) is an independent agency that reports to the Minister of Health. HMIRC is an important element of the national Workplace Hazardous Materials Information System (WHMIS), which provides employees in the workplace with information on handling and using hazardous materials. HMIRC is mandated under federal, provincial and territorial legislation to administer a mechanism that preserves the confidentiality of bona fide trade secrets while at the same time ensuring that the hazard information disclosure requirements of the applicable legislation are applied.

In addition to the assessment of trade secret claim validity, the work of HMIRC includes an assessment of the scientific information relevant to each product, and a review of the health and safety information provided on the material safety data sheet and/or product label, pursuant to the Hazardous Products Act, the Canada Labour Code and provincial and territorial health and safety legislation. In doing so, HMIRC contributes directly to the occupational health and safety of Canadian workers.

The two decisions (claim validity and material safety data sheet/ product label compliance) are completely separate even though they are issued simultaneously. Claimants, as well as any other affected parties, have the opportunity to appeal HMIRC’s decisions to an independent tripartite appeal board.

In 1999, HMIRC, with the encouragement of all stakeholders, undertook a Renewal Program with the objectives of making HMIRC more client-oriented, streamlining and improving service delivery, enhancing workplace safety, increasing transparency and accountability, and modernizing administrative procedures.

Extensive consultations were held with stakeholders in order to identify problem areas and to find mechanisms to resolve these difficulties. Most of the improvements identified could be carried out through regulatory amendments and administrative changes, and these improvements have already been implemented. However, three key changes identified by stakeholders required amendment of the Hazardous Materials Information Review Act to incorporate:

(1) a provision to allow claimants to declare that the information for which an exemption is sought is confidential business information pursuant to the criteria outlined in the Hazardous Materials Information Review Regulations, and that full justification is available and will be provided upon request;

(2) a mechanism to permit claimants to enter into undertakings with HMIRC to voluntarily correct health and safety information when it is found to be non-compliant with applicable legislation; and

(3) a provision to allow HMIRC to provide factual clarifications of the record of the screening officer to appeal boards.

These three legislative amendments represent minor changes to HMIRC’s procedures that are expected to increase the efficiency with which accurate and complete safety information is provided to workers, and reduce the administrative burden on claimants, while maintaining the rigor of HMIRC’s claim review process.

On unanimous recommendation from all stakeholder groups, these amendments were brought before the 39th Parliament, as Bill S-2. After debate and committee review in both the Senate and the House of Commons, on March 29, 2007, Bill S-2 received Royal Assent from the Governor General becoming Chapter 7 of the Statutes of Canada, 2007.

However, in order to implement these changes, related amendments must be made to the corresponding regulations: the Hazardous Materials Information Review Regulations and the Hazardous Materials Information Review Act Appeal Board Procedures Regulations.

These regulatory amendments specify in greater detail how the changes in procedures will be made. Similar to the legislative amendments, they relate to streamlining the claim process for trade secret exemption from the disclosure requirements under WHMIS by:

• permitting claimants to provide a summary of the information supporting their claim;
• specifying the nature of information required for claimants to substantiate their claims when selected by HMIRC for verification; and
• allowing claimants to voluntarily bring the material safety data sheet and/or product label accompanying their claim into compliance with regulations without the issuance of a formal order.

In addition, modifications to streamline and expedite the appeal process allow HMIRC to provide factual clarifications of the record of the screening officer to appeal boards in order to address ambiguity, and give affected parties the right to appeal the voluntary undertakings of claimants when bringing their material safety data sheets and product labels into compliance.

Further amendments to HMIRC’s regulations, as part of HMIRC’s commitment to efficiency, and to comply with certain regulatory requirements, include:

• permitting the electronic filing of claims once HMIRC has the necessary facilities for accepting the secure transmission of claims electronically;
• bringing the regulations into compliance with the Modernization of Benefits and Obligations Act by removing the terms “related persons” and “related group” in identifying potential conflicts of interest and instead requiring counsel and experts to satisfy appeal boards that they have no personal interest in the proceedings;
• further streamlining, improving and expediting the appeal process by ensuring that HMIRC staff have access to appeal board decisions for the purposes of policy-making and training; and
• updating wording.

Alternatives

With two exceptions, there are no alternatives to the amendments to the Hazardous Materials Information Review Regulations and Hazardous Materials Information Review Act Appeal Board Procedures Regulations. The amendments are required to bring the regulations into line with the amended Act.

The first exception is the amendment to the regulations allowing the filing of claims by electronic means. The alternative in this case would be to maintain the status quo—continuing to require claims to be filed by registered mail or in person—which would represent a more costly and inconvenient approach for claimants and would be contrary to the recommendations of stakeholders that resulted from extensive consultation.

The second exception relates to the amendments to streamline the appeal process. The alternative in this case would be to maintain the status quo, which would also mean failing to honour HMIRC’s commitment to its stakeholders and continuing with a more costly, lengthy, and cumbersome process. As the appeal procedures are explicitly outlined in the regulations, regulatory amendments are required to implement improvements to the process.

Based on the alternatives, regulation is the best course of action to obtain the objectives determined through the Renewal Program and supported by stakeholders.

Benefits and costs

The amendments to the Act and regulations will benefit businesses seeking exemption from the disclosure of confidential business information associated with hazardous materials as well as employers and workers using those materials in the workplace. The associated costs to business as a result of the regulatory amendments are expected to be minimal and will be greatly outweighed by the reduction of the administrative burden in filing a claim and the benefits of a more efficient claim for exemption process. In addition, HMIRC will benefit from a reduction in internal administrative costs related to claim processing.

Allowing a claimant to declare, with a minimum of supporting documentation, that the information for which they are claiming an exemption is confidential business information will reduce the administrative burden on claimants and on HMIRC. Currently, claimants are required to submit detailed documentation on the steps they have taken to protect confidentiality and the potential financial impact of disclosure. The reduction in reporting requirements, under certain circumstances, will reduce the time and expense of filing claims to protect confidential business information, and consequently reduce administrative costs for HMIRC. HMIRC will require full documentation only when an affected party makes a submission or when a claim is selected through a verification process established by HMIRC to discourage false or frivolous claims. The reduction in administrative cost should allow HMIRC to devote more of its resources to the review of the information on the safe use of hazardous materials being provided to employers and workers through material safety data sheets and product labels, expediting the process of getting that information to workers. The material safety data sheets and product labels for claims will continue to undergo the rigorous scrutiny that is part of the existing process; therefore, there will be no increase in risk to the health and safety of workers as a result of this amendment.

Allowing claimants to enter into undertakings to bring material safety data sheets and product labels into compliance with legislative requirements on a voluntary basis will benefit claimants by demonstrating their commitment to providing accurate information to workers. This is not possible under the existing process, as it relies solely on formal orders issued by HMIRC. More importantly, this amendment will significantly speed up the process of getting complete and accurate health and safety information, in the form of revised material safety data sheets and product labels, into the hands of workers using hazardous materials in the workplace. Corrected health and safety information will be available at least 75 days earlier under the revised process as it will obviate the appeal process, as well as eliminate the need to wait until the end of the appeal period before providing corrected information. Corrections will be published in the Canada Gazette to ensure the transparency and openness of the process.

The provision to allow HMIRC to make factual clarifications of the record of the screening officer to appeal boards will facilitate decision-making and expedite the appeal process, thereby reducing the cost and administrative burden of appeals for both appellants and HMIRC.

Permitting the filing of claims through electronic means will further reduce administrative costs and inconvenience for both claimants and HMIRC. Electronic storage and transmission of claims will reduce the costs and delays associated with regular mail service and provide a much more efficient means of making updates and corrections to claim forms and related documentation such as material safety data sheets and product labels. This procedural amendment will only be implemented when HMIRC has in place the technical means to satisfy the stringent security standards for the safe transmission of claim information.

The only costs likely to be incurred by claimants and HMIRC, as a result of the amendments, relate to the adjustment of internal procedures and policies to reflect the new processes provided under the revised regulatory framework. These costs are anticipated to be minimal and non-recurring.

The amendments will simplify administrative procedures for claimants without compromising compliance with federal, provincial and territorial requirements that ensure that workers using hazardous materials have complete and accurate health and safety information.

Consultation

In 1999, when HMIRC undertook a Renewal Program with the objectives of making HMIRC more client-oriented, streamlining and improving service delivery, enhancing workplace safety, increasing transparency and accountability, and modernizing administrative procedures, extensive consultations were held with the stakeholders in order to identify problem areas and to find mechanisms to resolve these difficulties. HMIRC’s Council of Governors, which includes representatives from organized labour, suppliers of hazardous materials to industry, employers using hazardous materials in their operations, and federal, provincial and territorial officials responsible for occupational health and safety, played a lead role in these consultations.

Consultations with stakeholder groups on changes to the Hazardous Materials Information Review Act were held with:

• organised labour at the Canadian Labour Congress’ National Occupational Safety and Health Conference;
• all Federal/Provincial/Territorial governments through the Intergovernmental WHMIS Coordination Committee; and
• industry through a special consultative meeting held on March 30, 1999, in Toronto, with participants representing 75 % of HMIRC claimant base.

The results of these consultations formed the basis for the amendments to the Hazardous Materials Information Review Act. The evolution of the legislative amendments and the development of the consequential regulatory amendments to the Hazardous Materials Information Review Regulations and Hazardous Materials Information Review Act Appeal Board Procedures Regulations were accomplished in close consultation with HMIRC’s Council of Governors at its regularly scheduled meetings:

• October 18-19, 2001, in Charlottetown, Prince Edward Island
• June 20-21, 2002, in Vancouver, British Columbia
• May 26, 2003, in Toronto, Ontario
• June 21, 2004, in Hamilton, Ontario
• May 24, 2005, via teleconference
• October 3-4, 2005, in Banff, Alberta
• May 4, 2006, via teleconference
• September 28-29, 2006, in Québec, Quebec
• May 24-25, 2007, in Ottawa, Ontario

The Council of Governors voted consistently and unanimously in favour of the legislative and regulatory amendments throughout the extensive period of consultation.

With the legislative amendments to the Hazardous Materials Information Review Act having received Royal Assent in March 2007, the related and consequential regulatory amendments were put before the Council of Governors, for final review and approval, at its most recent meeting in May 2007. The Council of Governors, representing organized labour, suppliers of hazardous materials to industry, employers using hazardous materials in their operations, and federal, provincial and territorial officials responsible for occupational health and safety, once again issued its unanimous support for the proposed amendments to the Hazardous Materials Information Review Regulations and the Hazardous Materials Information Review Act Appeal Board Procedures Regulations.

These regulations were pre-published in the Canada Gazette, Part I, on April 12, 2008, with a comment period of 75 days, and no comments were received.

Compliance and enforcement

Compliance will be assured by requiring full disclosure of information when a claim for exemption from disclosure is denied.

The provision creating a mechanism to permit claimants to enter into undertakings with HMIRC to voluntarily correct health and safety information when it is found to be non-compliant with applicable legislation will serve to facilitate and expedite compliance.

HMIRC retains the authority to issue formal orders to ensure that complete and accurate health and safety information is disclosed in the event that compliance is not achieved on a voluntary basis.

In addition, the offence provisions of the Hazardous Materials Information Review Act for material safety data sheets and product labels that do not meet all legislative requirements within the time period prescribed by the screening officer will remain the means of ensuring compliance and enforcement, and will be exercised by HMIRC should the need arise.

Contact

Mary Hill
Acting Vice-President
Corporate Services and Adjudication
Hazardous Materials Information Review Commission
427 Laurier Avenue West, 7th Floor
Ottawa, Ontario
K1A 1M3
Telephone: 613-941-2945
Fax: 613-993-5016
Email: mary_hill@hc-sc.gc.ca

Footnote a
S.C. 2007, c. 7, s. 8

Footnote b
R.S., c. 24 (3rd Supp.), Part III

Footnote c
S.C. 2007, c. 7, s. 8

Footnote d
R.S., c. 24 (3rd Supp.), Part III

Footnote 1
SOR/88-456

NOTICE:
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