Remission Order in Respect of Fees for Claims Filed under the Hazardous Materials Information Review Act for Exemption from the Requirement to Disclose Confidential Business Information: SI/2019-10

Canada Gazette, Part II, Volume 153, Number 5

Registration

SI/2019-10 March 6, 2019

FINANCIAL ADMINISTRATION ACT

P.C. 2019-99 February 23, 2019

Her Excellency the Governor General in Council, considering that it is in the public interest to do so, on the recommendation of the Minister of Health and the Treasury Board, pursuant to subsection 23(2.1) footnote a of the Financial Administration Act footnote b, makes the annexed Remission Order in Respect of Fees for Claims Filed under the Hazardous Materials Information Review Act for Exemption from the Requirement to Disclose Confidential Business Information.

Remission Order in Respect of Fees for Claims Filed under the Hazardous Materials Information Review Act for Exemption from the Requirement to Disclose Confidential Business Information

Definitions

1 (1) The following definitions apply in this Order.

Application of meanings in Acts and Regulations

(2) All other words and expressions used in this Order have the same meaning as in the Hazardous Products Act, the Hazardous Materials Information Review Act, the Hazardous Products Regulations or the Hazardous Materials Information Review Regulations, as applicable.

Remission — fee for claim for exemption

2 (1) Subject to subsection (2), remission is granted to a supplier of an amount equal to the fee required under subsection 11(3) of the Hazardous Materials Information Review Act to accompany a claim filed by the supplier under that Act for an exemption from the requirement to disclose, on the safety data sheet of a hazardous product, confidential business information relating to the concentration or concentration range of a hazardous ingredient in the hazardous product.

Maximum amount

(2) Remission is granted of an amount of up to $850,000, which represents the total maximum amount to be repaid to all the affected suppliers.

Conditions

3 The remission is granted on the condition that

EXPLANATORY NOTE

(This note is not part of the Order.)

Proposal

Pursuant to subsection 23(2.1) of the Financial Administration Act, this Order remits to eligible companies the fees paid for claims filed under the Hazardous Materials Information Review Act (HMIRA) for an exemption from requirements to disclose confidential business information (CBI), a process that is no longer required following amendments to the Hazardous Products Regulations (HPR) made on April 3, 2018 (SOR/2018-68).

Objective

The objective of this Order is to refund fees paid by eligible regulated companies when seeking exemptions from CBI disclosure requirements that are no longer required.

Background

On February 11, 2015, the HPR came into force, which, unlike the repealed Controlled Products Regulations (CPR) that it replaced, no longer allowed companies to use prescribed concentration ranges footnote 1 to disclose the concentration of hazardous ingredients on safety data sheets (SDS). footnote 2 Under the 2015 HPR, actual concentrations needed to be disclosed unless a company submitted a claim for a CBI exemption under the HMIRA and paid the associated fee set out under the Hazardous Materials Information Review Regulations (HMIRR).

Regulated companies were provided with transition periods footnote 3 (from February 11, 2015, until August 31, 2018) within which they could still comply with the requirements of the former CPR. Many companies elected to proactively comply with the HPR in advance of the end of the transition periods which took place on September 1, 2018, and submitted a claim for CBI exemption under the HMIRA to protect the actual ingredient concentration or concentration range of the hazardous ingredients and paid the required fee.

During the implementation of the transition periods, regulated parties proposed that they should have a means to protect the concentration or concentration range of ingredients without having to carry the burden and cost of the application process under the HMIRA. Health Canada agreed that enabling the use of prescribed concentration ranges offered the same level of protection as under the former CPR while reducing the potential administrative burden on both industry as well as Health Canada.

On April 18, 2018, an amendment to the HPR was published in the Canada Gazette, Part II, to once again allow companies to use prescribed concentration ranges on their SDS to disclose the concentration or concentration range of hazardous ingredients in their products, similar to the previous CPR, thereby providing an option for protecting CBI other than filing for a claim for CBI exemption under the HMIRA.

Health Canada contacted all eligible companies shortly after the 2018 HPR amendments to gauge the level of interest for withdrawing some or all of their claims for a CBI exemption. Following several periods of engagement with eligible companies, Health Canada set December 14, 2018, as the deadline for when companies had to provide a written withdrawal request (this deadline was communicated to eligible companies directly).

Implications

This Order remits the fees paid as part of claims filed under the HMIRA for exemptions to disclose certain CBI on SDS of workplace hazardous products to any eligible company. The Order applies to any claim for exemption, for which the company paid the required fee, made on or after February 11, 2015, but before April 18, 2018, provided that the company has provided Health Canada with a written withdrawal request no later than December 14, 2018. The information provided by the company in the claim for exemption must be valid and must continue to meet the requirements of the HMIRA and the HMIRR at the time of remission.

This Order authorizes the remission of fees paid according to the fee structure set out under sections 4, 5 and 7 of the HMIRR, made under section 48 of the HMIRA. They are presented in the table below and take into account discounts provided for multiple claims filed (i.e. batching). The remission also takes into account any claim that was provided with a 50% discount for meeting the criteria of a small business, as defined under the HMIRR.

Claim Type

Batching Category

Fee Amount
(per claim)

Original

1 to 15 claims

$1,800

Original

Next 10 claims

$400

Original

26 claims

$200

Refile

1 to 15 claims

$1,440

Refile

Next 10 claims

$320

Refile

26 claims

$160

The remission of fees paid by companies that proactively complied with the HPR in advance of the end of the transition periods is in the public interest. The remission of fees paid in this case is in the public interest as not doing so would result in companies having unnecessarily paid to protect the concentrations and concentration ranges of their workplace hazardous products. They no longer need to file exemption claims under the HMIRA to protect these concentrations, as they can now rely on concentration ranges.

The amounts remitted under the Order shall not exceed $850,000 and will be reported in the Public Accounts of Canada, as required by subsection 24(2) of the Financial Administration Act.

Consultations

Shortly after the publication of the amendments of the HPR on April 18, 2018, Health Canada directly contacted all eligible companies who filed claims for CBI exemption under the HMIRA to determine which companies had interest in withdrawing their claims. Over the summer and fall 2018, Health Canada further engaged the companies that indicated interest in withdrawing some or all of their claims to identify which particular claims they wanted to withdraw and determine potential remission amounts.

Health Canada also informed the WHMIS Current Issues Committee footnote 4 that the Department was exploring options to remit fees paid for claims submitted within the eligibility period. The Committee did not express any concerns regarding the remission of fees, but did comment that Health Canada should provide affected companies with sufficient time to review claims submitted during the transition periods. To address this concern, the timelines for initial consultation with implicated stakeholders were extended to the end of summer 2018.

Departmental contact

Laurent Gémar
Manager
Workplace Hazardous Materials Bureau
Health Canada
Telephone: 613‑941‑2503
Email: laurent.gemar@canada.ca