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An overview of the claims for exemption process

An overview of the claims for exemption process (click to view chart)

The Workplace Hazardous Materials Information System (WHMIS) requires that chemical suppliers provide employers with information on the hazards of materials produced or used in Canadian workplaces. Suppliers must disclose the health and safety risks associated with their products, together with instructions for safe handling, storage, transportation, disposal and first-aid treatment. This is accomplished with product labels and material safety data sheets (MSDSs). Employers may then use this information to prepare workplace MSDSs and labels, and provide workplace safety education.

When a supplier or employer wants to protect confidential business information, for example, the chemical identity of one or more trade secret hazardous ingredients, they must file a claim for exemption with the Hazardous Materials Information Review Commission in order to be exempt from having to disclose that information. For that product to be legally available on the Canadian market, a registry number issued by the Commission is required to be shown on the MSDS, and for certain claims, on the label.

A claimant may decide to withdraw a claim at any stage of the process.

Submitting a claim

Claimants submit a claim for exemption directly to the Commission. (For more about submitting a claim, please see the Commission’s Web site at http://www.hmirc-ccrmd.gc.ca.)

Pre-registration check

On receipt of a claim, Commission staff check that the application and accompanying MSDS (and label, for certain employer claims) are complete and contain no obvious errors, and collect and verify fees. If errors or omissions are found, staff contact the claimant to obtain the needed information.

Registering the claim

Once the claim application is judged to be complete and correct, it is assigned a registration number. The Commission sends a letter to the claimant indicating the registration number and the date of filing. This information is then placed on the MSDS in place of the claimed confidential business information.

Claim registration allows the company to import or sell its product while the various decision making processes are carried out.

Once the claim is registered with the Commission, a notice of filing outlining the basic characteristics of the claim is published in Part I of the Canada Gazette. This gives anyone affected by the claim the opportunity to provide a written submission to the Commission as to whether the claim should or should not be judged valid.

Reviewing the claim

The registered claim then undergoes a more thorough review. Based on their assessment of the information submitted by the claimant and any submissions from those affected by the claim for exemption, one of the Commission’s screening officers reviews the claim against the regulatory criteria and decides whether the claim is valid. The screening officer also determines whether the MSDS (or label, in some cases) submitted with the claim complies with the Hazardous Products Act and Controlled Products Regulations or, in the case of an employer claim, other applicable federal, provincial or territorial occupational health and safety requirements.

In each case, the Commission’s scientific evaluators review the most recent scientific information relevant to each of the products and/or their ingredients, and their known health and safety hazards. They advise the screening officer, who then decides whether the MSDS complies with regulations.

The decision

At the conclusion of both the claim review process and the MSDS review process, a formal Statement of Decision is forwarded to the claimant. If the claim is found to be invalid and/or the MSDS does not meet requirements, the screening officer issues a formal order for its revision and follows up to ensure compliance. All orders specify the period during which various changes must be made if the product is to continue to be sold in Canada.

A notice is published in the Canada Gazette to make public the decisions and orders issued by the screening officer, and to initiate the time during which the claimant and affected parties may appeal the decisions or orders. If no appeal is filed, the claimant must provide a copy of the amended MSDS to the screening officer, who reviews it to ensure compliance with the order.

Appeals

Claimants have 45 days to launch an appeal from the date that the Commission’s decision on a claim is published in the Canada Gazette; the length of the appeals process varies with the complexity of the case.

For each appeal filed, a notice of appeal is published in the Canada Gazette to provide affected parties an opportunity to make representations to the appeal board.

The final outcome of the appeals process is a decision by the appeal board on whether to dismiss the appeal and confirm the decisions or orders of the screening officer, or to allow the appeal and either vary or rescind the decisions or orders being appealed. A notice of decision, including the reasons, is published in the Canada Gazette.