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Common Questions and Answers

The following answers to commonly asked questions will assist you in the preparation and filing of a claim for exemption.

Q1: What kind of information may be claimed as CBI?
A1: Under the legislation, an applicant can file for exemption only for the following specific types of information, which would otherwise have to be disclosed.

A supplier, within the meaning of HPA, can claim for:

1. the chemical identity of any ingredient in a controlled product;
2. the concentration of any ingredient in a controlled product;
3. the name of any toxicological study that identifies any ingredient of a controlled product.

An employer, within the meaning of the CLC or provincial territorial legislation (OSH) can claim for:

1. the same three information types as the supplier;
2. the chemical, common, generic, trade, or brand name of a controlled product;
3. information that could be used to identify a supplier of a controlled product.

All other mandatory information such as hazards, preventive measures, first aid, etc. cannot be claimed as CBI, and must be disclosed.

Q2: How do I prepare for filing a claim?
A2:The sequence of events prior to completing a claim are to:

1. determine whether you are considered a supplier or employer under the HPA, CLC or OSH acts;
2. determine if you have controlled product(s) as defined by the Controlled Products Regulations;
3. classify your products and prepare the required MSDS/labels;
4. determine if the information on one or more of the hazardous ingredients is considered trade secret or proprietary (chemical identity, concentration, supplier); then
5. provide all of the mandatory information required under Section 8 of the Regulations Amending the Hazardous Materials Information Review Regulations. The Commission’s Application for a Claim for Exemption and the Guide to Completing a Claim for Exemption are designed to facilitate the submission of this information. If you require assistance, please contact our offices at (613) 993-4331 and ask to speak to a Client Services Officer.

For further information concerning the administration and enforcement of WHMIS requirements, consult with your provincial WHMIS coordinator or visit the Health Canada WHMIS Web site at http://www.hc-sc.gc.ca/hecs-sesc/whmis/.

Q3: Do I have to indicate the concentration of CBI ingredients?
A3: If the concentration of an ingredient is being claimed as CBI, the concentration must then be shown in Part VII of the Application.

Q4: Should the generic chemical identity appearing in PART VII of the Application match the one required to be shown on the MSDS under Section 16 of the HPA?
A4: Yes.

Q5: How detailed must the information that I submit be?
A5: When providing the information required to be submitted under Paragraphs 8(1)(h) to 8(1)(k) of the Hazardous Materials Information Review Regulations, claimants are expected to provide as much detail as possible since the information provided will form much of the basis on which a decision is made concerning the validity of the claim (see Part IV of the Application for a Claim for Exemption). Under Subsection 14(1) of the Hazardous Materials Information Review Act, a screening officer may request a claimant to submit such additional information as a screening officer may require. The economic financial information must relate to each controlled product. In this respect, if three claims for exemption are submitted for three controlled products at one time, the material financial loss attributable to disclosure of the claimed confidential information (the subject of the claim for exemption) will usually differ for each of those controlled products. In such instances, this detailed individualized information would be provided as an appendix to the applicable section of Part IV of the Application for a Claim for Exemption. All information provided to the Commission is treated as privileged.

Q6: When providing information in support of the claim, is it permissible to include, for example, controlled products sales data that relates primarily to my firm’s parent company outside of Canada?
A6: Claimants are required to provide economic information such as sales data relating strictly to the entity which files the claim. However, the claimant is then free to append additional applicable data pertaining to sales of the controlled products by its parent company or affiliated companies in other parts of the world. Clear linkages between the claimant and these related entities must be established. For example, while the negative economic consequences of the disclosure of CBI might extend beyond a Canadian firm to its foreign parent company, such assertions will not be considered unless the nature of the CBI/controlled product business outside of Canada is clearly described in the claim. As this information is supplementary, the screening officer may or may not take this information into account when making a decision.

Q7: Do I have to both provide an estimate of the material financial loss to the claimant that would result from disclosure of the information and provide an estimate of the material financial gain to the claimant’s competitors that would result from disclosure of the information?
A7: No. Paragraph 8(1)(k) of the Hazardous Materials Information Review Regulations offers a choice of estimating either the claimant’s material financial loss or a competitor’s material financial gain. The explanation of how this estimate was calculated must clearly relate to the option which the claimant has chosen (e.g. gross sales, net sales, contribution margin, etc.). Where multiple products are covered by one submission, this information would be provided as an appendix to the applicable section of Part IV of the Application for a Claim for Exemption. All information including financial estimates provided to the Commission is treated as privileged.

Q8: Is the claimant required to submit both the relevant MSDS and label with the claim?
A8: The MSDS is always required to be submitted as it would normally have to disclose the CBI relevant to the claim. Labels are only required to be included with the claim when employers are claiming for the name of a controlled product and/or its supplier.

Q9: How much is the fee associated with submitting a claim for exemption to the Commission?
A9: A new fee structure for claims for exemption came into force June 13, 2002 and differentiates fees based on the number of claims submitted at one time and on whether each claim is an “original claim” or a “refiled claim”. The former grouping and ingredient-based fee structures are no longer in effect. The following fees now apply to each submission and are based on the number of claims of each type (original or refiled) submitted at one time.

A 50% reduction for a small business meeting certain criteria is still available. Please consult the Regulations to obtain more information.

Q10: How and when are registry numbers assigned?
A10: All claims are reviewed initially for completeness and validation of fees paid, including grouping of claims. Claimants will normally receive a registry number and the official “Date of filing” within seven (7) days after receipt of their submission unless the claim documentation is incomplete (i.e. missing MSDSs, incomplete form, insufficient payment of fees, etc.)

Q11: How long is my exemption period?
A11: When a registry number has been assigned to the claim, it can be used immediately for purposes of selling, importing or usage of the controlled product in question. In due course, the claim will be reviewed by a screening officer and a decision made on the validity of the claim. The exemption period will then continue for another three years, beginning on the date that the screening officer decides that the claim is valid.

Q12: What if an appeal is filed against the screening officer’s decisions?
A12: If an appeal is filed against the Decisions of the Screening Officer, the 3-year exemption period begins on the date that the appeal board made its decision on the appeal. During appeal proceedings, the claimant maintains the right to sell, import or use the controlled product.

Q13: If the screening officer finds that the MSDS for the controlled product in my claim does not comply with the WHMIS requirements, does that mean that my exemption will be terminated?
A13: No. The decision as to whether the claim is valid is not affected by the decision on the compliance of the MSDS for the controlled product in that claim.

Q14: Is the fee required to be paid in Canadian dollars?
A14: Payment can be made either by cheque, money order or credit card (Visa, MasterCard or American Express). Cheques or money orders should be made payable to the Receiver General for Canada. Cheques or money orders sent to the Commission in currency other than in Canadian dollars can cause a delay in the issuance of the registry number and subsequent processing of your claim.

Q15: Can a claim for a controlled product which is about to be sold or imported be added to a previously submitted single or multiple claim group? If so, what fees are applicable?
A15: The answer is no. The revised fee structure no longer requires the grouping of claims for the determination of fees. Fees will now be based on whether the claims are original claims or refiled claims and the number of claims submitted at one time. See response to Q9 above.

Q16: In filing a claim for exemption with the Commission, how can I, best ensure the secure transmission of my CBI?
A16: When filing a claim, one should follow a few simple rules in order to ensure the secure transmission of the CBI.

• Section 9 of the HMIRR specifically directs claimants to send in their claims by registered mail, or have them delivered in person. The Commission encourages the use of courier for the delivery of the claim.
• CBI and product formulation data should always be placed in sealed envelopes which have been appropriately labelled.
• Regular mail, e-mail or FAX lines are NOT appropriate means of transmitting CBI to the Commission.
• If several claims are sent in one package, ensure that the CBI sealed envelopes and the related claim application envelopes are appropriately marked in order to facilitate the matching of the information once it is received at the Commission.

Q17: There are a number of items that must be included with my claim for exemption. What are they?
A17: Use the following check-list to ensure that your claim package is complete.

MSDSs:

• The relevant MSDS must accompany each product that you are claiming.
• The controlled product identifiers on the MSDSs must match the product identifiers listed in Parts II and VII of the Application for a Claim for Exemption.

Hazard classification:

• Products which burn or blister the skin, should be Class E—corrosive materials and not as a skin irritation under Class D2b. Only those products which are not corrosive, but which cause skin irritation and inflammation/edema to the skin should be included in Class D2b.

Claimed CBI:

• The envelope containing the claim CBI MUST be sealed to ensure confidentiality.
• CBI shown on Part VII with the claim should match the products listed in Part II of the Application for a Claim for Exemption.
• CAS numbers or chemical names of the CBI ingredients should NOT appear on the MSDS supplied with the claim but be provided on Part VII of the Application for a Claim for Exemption.
• Information in support of the claim should appear on Part IV NOT on Part VII of the Application for a Claim for Exemption. Part IV information may however be included with Part VII in the sealed envelope.
• The generic chemical identity of the claimed CBI ingredients should be listed in Column 3 of Part VII of the Application as well as on the MSDS. These generic chemical identities must match.

Controlled product formula:

• It would be advantageous if data on the product’s total formulation were provided at the time of your claim filing. The screening officer will request the total formulation at a later date if it is not supplied at this time. This includes the precise chemical identity, CAS registry number and per cent concentration of each “non-hazardous” ingredient present in the controlled product at a per cent concentration of 0.1 or greater, which has not been disclosed on the MSDS accompanying the claim being filed. This information assists the screening officer in the MSDS review which entails a verification that all hazardous ingredients in the controlled product have been disclosed on the MSDS. When submitting this data, every effort should be made to ensure that the percent concentrations of the hazardous plus “non-hazardous” ingredient concentrations virtually account for the total formulation of the product. Product formulation data should be placed in the same sealed envelope as the claimed CBI.

Other reminders:

• “Proprietary Secret” is not an acceptable means of complying with Section 16 of the HPA—the generic chemical identity must be shown.
• All claimed CBI ingredients must be identified individually by their generic chemical identity (i.e. one generic name followed by “and additives” is not acceptable).