ARCHIVED — Regulations Amending the Controlled Products Regulations

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Vol. 144, No. 6 — March 17, 2010

Registration

SOR/2010-38 February 23, 2010

HAZARDOUS PRODUCTS ACT

P.C. 2010-207 February 23, 2010

Whereas, pursuant to section 19 (see footnote a) of the Hazardous Products Act (see footnote b), the Minister of Health has consulted with the government of each province and with organizations representative of workers, organizations representative of employers and organizations representatives of suppliers that the Minister deemed appropriate;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Health, pursuant to sections 13 (see footnote c) and 14 (see footnote d) and subsection 15(1) (see footnote e) of the Hazardous Products Act (see footnote f), hereby makes the annexed Regulations Amending the Controlled Products Regulations.

REGULATIONS AMENDING THE CONTROLLED PRODUCTS REGULATIONS

AMENDMENTS

1. (1) Subsection 12(3) of the French version of the Co n trolled Products Regulations (see footnote 1) is replaced by the following:

(3) La fiche signalétique d’un produit contrôlé divulgue les renseignements visés aux paragraphes 1(1) et 2(1) et (2) de la colonne III de l’annexe I sous la rubrique appropriée prévue à la colonne II, ou sous la rubrique équivalente mentionnée au paragraphe (1).

(2) Subsection 12(11) of the Regulations is replaced by the following:

(11) In addition to the information required to be disclosed by subsection (2), a material safety data sheet shall disclose all additional hazard information that is available to the supplier with respect to the controlled product or, if appropriate, a product, material or substance that has similar properties, including any evidence based on established scientific principles.

2. (1) The portion of paragraph 33(1)(b) of the Regulations before subparagraph (i) is replaced by the following:

(b) evidence based on established scientific principles with respect to

(2) Subparagraph 33(1)(b)(ii) of the French version of the Regulations is replaced by the following:

(ii) soit, s’il y a lieu, à tout produit, à toute matière ou à toute substance ayant des propriétés similaires.

(3) Subsection 33(2) of the Regulations is replaced by the following:

(2) For the purpose of establishing that a product, material or substance is or is not included in Class D — Poisonous and Infectious Material, the supplier may use, in place of the evidence referred to in subsection (1), one or more of the following:

(a) results of other testing with respect to the product, material or substance;

(b) if appropriate, results of testing with respect to a product, material or substance that has similar properties; and

(c) other evidence based on studies or epidemiological data with respect to

(i) the product, material or substance, or

(ii) if appropriate, a product, material or substance that has similar properties.

(4) The portion of subsection 33(3) of the Regulations before paragraph (a) is replaced by the following:

(3) If the evidence referred to in paragraph (1)(b) results from toxicological studies, the studies shall have been carried out in accordance with

3. Section 64 of the Regulations is replaced by the following:

64. An organism that has been shown to cause disease or to be a probable cause of disease in persons or animals and the toxins of that organism shall be included in Division 3 of Class D — Poisonous and Infectious Material.

COMING INTO FORCE

4. These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issue and objectives

The purpose of this regulatory initiative is to address issues raised by the Standing Joint Committee for the Scrutiny of Regulations (SJCSR) relating to subsections 12(3), 12(11), 33(1), 33(2), and 64 of the Controlled Products Regulations (CPR) established under Part II of the Hazardous Products Act (HPA). These amendments will necessitate a consequential amendment to subsection 33(3) of the CPR.

Description and rationale

The Workplace Hazardous Materials Information System (WHMIS) is Canada’s hazard communication standard implemented through coordinated federal, provincial and territorial legislation. Supplier labelling and Material Safety Data Sheets (MSDS) requirements are set out under the HPA and associated CPR. The CPR establish a national standard for the classification of hazardous workplace materials. In addition to setting out criteria for biohazards, chemical and acute hazards, the Regulations specify criteria for chronic health hazards including mutagenicity, carcinogenicity, embryo and reproductive toxicity, respiratory tract and skin sensitization.

The WHMIS requirements of the HPA and CPR are the foundation for the worker right-to-know requirements enacted by each of the 13 provincial, territorial and federal government bodies responsible for occupational safety and health in Canada. These interlocking requirements place an obligation on employers to ensure that controlled products used, stored, handled or disposed of in the workplace are properly labelled, that MSDS are made available to workers, and that workers receive education and training to ensure the safe storage, handling, use and disposal of controlled products in the workplace.

Amendments to the CPR are necessary to address issues identified by the SJCSR. The first issue raised by the SJCSR concerns the equivalency between the English and French versions of subsection 12(3). The French versions of subsection 12(1) and 12(2) use “rubrique équivalente” for the English “similar headings” while subsection 12(3) uses “rubrique correspondante.” Therefore, in order to harmonize vocabulary in the Regulations, subsection 12(3) will be amended to use “rubrique équivalente.”

The second issue raised by the SJCSR concerns subsection 12(11) of the CPR which requires a supplier to disclose on the MSDS “any other hazard information with respect to the controlled product of which the supplier is aware or ought reasonably to be aware.” The SJCSR has concluded that the HPA does not provide the authority for the CPR to state “aware or ought to be reasonably aware.” To address this issue, subsection 12(11) will be modified to: “a material safety data sheet shall disclose, in addition to the information required to be disclosed by subsection (2), all additional hazard information that is available to the supplier with respect to the controlled product or, if appropriate, a product, material or substance that has similar properties, including any evidence based on established scientific principles.”

The third issue raised by the SJCSR concerns subsection 33(1) which states “the supplier shall use, subject to subsection (2)(b) evaluation and scientific judgment based on test results with respect to (i) the product, material or substance or (ii) where appropriate, a product, material or substance that has similar properties.” The SJCSR has concluded that “evaluation and scientific judgment” is too subjective and exceeds the legislative authority of the HPA. Therefore, this section is amended to state that “the supplier shall use, subject to subsection (2) evidence based on established scientific principles with respect to the product, material or substance or where appropriate, a product, material or substance that has similar properties.” Further, the deletion of the term “test results” in paragraph 33(1)(b) necessitates the amendment to subsection 33(3) as follows: “if the evidence used under paragraph (1)(b) are results from toxicological studies, the studies shall have been carried out in accordance with... .”

Subsection 33(2) states that “the supplier may use information of which the supplier is aware or ought reasonably to be aware in place of the criteria set out in subsection (1).” Similar to subsection 12(11), the HPA does not provide the authority for the CPR to state “aware or ought to be reasonably aware.” Therefore, CPR 33(2) is amended to “the supplier may use, in place of the evidence referred to in subsection (1), one or more of the following:

(a) results of other testing with respect to the product, material or substance;

(b) if appropriate, a product, material or substance that has similar properties; and

(c) other evidence based on studies, epidemiological data with respect to

(i) the product, material or substance, or

(ii) if appropriate, a product, material or substance that has similar properties.”

Similarly, the HPA does not provide the authority for section 64 of the CPR to state that “an organism that has been shown to cause disease or is reasonably believed to cause disease in persons or animals and the toxins of such an organism fall into Division 3 of Class D — Poisonous and Infectious Material.” Therefore, the amendment to this section will be as follows: “an organism that has been shown to cause disease or to be a probable cause of disease in persons or animals and the toxins of that organism shall be included in Division 3 of Class D — Poisonous and Infectious Material.”

These amendments will not result in significant impact on trade as they are intended to add clarity to the Regulations under the legislative authority provided by the HPA and to ensure consistency between the English and French versions of the Regulations. The regulatory amendments, as proposed, address the concerns raised by the SJCSR. They will not change the scope of the HPA/CPR nor what is encompassed by the term “controlled product.” These amendments will not affect the meaning nor intent of the Regulations. They do not provide extra powers to the Government nor do they increase the burden for the regulated community.

Consultation

As required by section 19 of the HPA, the Minister of Health must consult with WHMIS stakeholders prior to making any modifications to the federal WHMIS legislation and regulations. Consultation through the multi-stakeholder WHMIS Current Issues Committee enables Health Canada to meet the legislated requirement to consult with stakeholders on behalf of the Minister. Health Canada conducted consultations with the federal, provincial and territorial authorities responsible for occupational health and safety and the Commission that administers WHMIS trade secret provisions as well as representatives of workers, employers and chemical suppliers. This procedure was completed and no concerns were raised by these stakeholder groups in regard to these proposed amendments.

Implementation, enforcement and service standards

Health Canada’s National WHMIS Office serves as the national coordinator for the governance and administration of WHMIS in Canada. It also serves as the national secretariat for this federal, provincial and territorial government partnership program. Pursuant to a bilateral agreement between the Government of Canada and the government of each province and territory and with the minister responsible for the Labour Program at Human Resources and Skills Development Canada, compliance activities relating to the CPR are conducted by Health Canada and the provincial, territorial and federal agencies responsible for occupational health and safety.

Contact

Abbey Klugerman
National Office of the Workplace Hazardous Materials Information System
Health Canada
123 Slater Street, 8th Floor
Address Locator: 3508B
Ottawa, Ontario
K1A 0K9
Telephone: 613-954-3822
Facsimile: 613-948-2626
Email: whmis_simdut@hc-sc.gc.ca

Footnote a
R.S., c. 24 (3rd Supp.), s. 1

Footnote b
R.S., c. H-3

Footnote c
S.C. 1999, c. 31, s. 128

Footnote d
R.S., c. 24 (3rd Supp.), s. 1

Footnote e
S.C. 1999, c. 31, s. 129

Footnote f
R.S., c. H-3

Footnote 1
SOR/88-66