Reference Manual for the WHMIS Requirements of the Hazardous Products Act and Controlled Products Regulations

HPA Section 16 - Disclosure of Generic Chemical Identity

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16. Where, pursuant to the Hazardous Materials Information Review Act, a supplier is exempt from disclosing on a material safety data sheet or label the chemical identity of a controlled product or the chemical identity of any ingredient of a controlled product, the supplier shall disclose on the material safety data sheet or label the generic chemical identity of the controlled product or ingredient with as much precision as is consistent with the exemption.

Interpretation / Discussion of Section 16

Precision of Generic Chemical Identity: If a supplier has applied for or has been granted an exemption from disclosing the chemical identity of a controlled product or the chemical identity of any ingredient of a controlled product, the supplier is still required to disclose the generic chemical identity as precisely as reasonably possible while still protecting the trade secret.

If, for example, there was a double bond somewhere in a molecule, the chemical identity of a very complex high molecular weight organic molecule could be described as a "substituted ethylene". In such a case, however, "substituted ethylene" would not be considered to meet the intent of the original consensus on this issue. This is reflected in the WHMIS Steering Committee Report which refers to "a generic name as precise as reasonably possible...". WHMIS stakeholders reaffirmed that the quoted phrase be used as a guideline for use by the Hazardous Materials Information Review Commission (HMIRC) and inspectors in the interpretation of both section 16 of the HPA and subparagraph 16(b)(ii) of the CPR; {ref.: PIS No.3}.

An information bulletin, originally published as issue No. 4, October, 1992, issued by the Hazardous Materials Information Review Commission, provides guidance on the use of generic chemical identities; http://www.hmirc-ccrmd.gc.ca/

Generic chemical identity used to describe more than one ingredient: Where a supplier is exempt from disclosing more than one ingredient identity in the same controlled product and more than one of those ingredients can be described by the same generic chemical identity, the supplier may replace those ingredient identities on an MSDS by a single pluralized generic chemical identity. The single generic chemical identity must be capable of describing each of the ingredients it replaces with as "much precision as is consistent with the exemption" under the Hazardous Materials Information Review Act (HMIRA). Where, for example, a supplier is exempt under the HMIRA from disclosing the identity of heptane, octane and nonane in a controlled product, the supplier may disclose, in place of three generic chemical identities, the identifier "saturated aliphatic hydrocarbons" to meet the requirement of this section of the HPA, {ref.: PIS No.35}.

Interim Orders

16.1 (1) The Minister may make an interim order that contains any provision that may be contained in a regulation made under this Part if the Minister believes that immediate action is required to deal with a significant risk, direct or indirect, to health or safety.

(2) The Minister may make an interim order in which any power referred to in sections 17 and 18 is deemed to be exercised, if the Minister believes that immediate action is required to deal with a significant risk, direct or indirect, to health or safety.

(3) An interim order has effect from the time that it is made but ceases to have effect on the earliest of

(a) 14 days after it is made, unless it is approved by the Governor in Council,

(b) the day on which it is repealed,

(c) in the case of an interim order made under subsection (1), the day on which a regulation made under this Part that has the same effect as the interim order comes into force and, in the case of an interim order made under subsection (2), the day on which an order made by the Governor in Council under this Part that has the same effect as the interim order comes into force, and

(d) one year after the interim order is made or any shorter period that may be specified in the interim order.

(4) No person shall be convicted of an offence consisting of a contravention of an interim order that, at the time of the alleged contravention, had not been published in the Canada Gazette unless it is proved that, at the time of the alleged contravention, the person had been notified of the interim order or reasonable steps had been taken to bring the purport of the interim order to the notice of those persons likely to be affected by it.

(5) An interim order

(a) is exempt from the application of sections 3, 5 and 11 of the Statutory Instruments Act; and

(b) shall be published in the Canada Gazette within 23 days after it is made.

(6) For the purpose of any provision of this Part other than this section and section 19, any reference to regulations made under this Act is deemed to include interim orders, and any reference to a regulation made under a specified provision of this Act is deemed to include a reference to the portion of an interim order containing any provision that may be contained in a regulation made under the specified provision.

(7) A copy of each interim order must be tabled in each House of Parliament within 15 days after it is made.

(8) In order to comply with subsection (7), the interim order may be sent to the Clerk of the House if the House is not sitting.
[2004, c. 15, s. 68.]

The Public Safety Act, 2002 (PSA), received Royal Assent on May 6, 2004. The PSA amends several existing statutes to provide a power permitting the responsible Minister to make an interim order if the Minister believes that immediate action is required to deal with a significant risk, direct or indirect, to human life, health, safety, security, or the environment, and where existing regulation-making authority is available. These interim order provisions can also be found in section 5.1 of Part I of the HPA.

An interim order covers matters for which regulations would normally be made except that the immediacy of the threat requires an immediate response.

What is an Interim Order? An interim order is a regulation that is issued by the Minister in the case of a situation that presents a significant risk, direct or indirect, to human health, public safety, security, or the environment.

Under what conditions can an Interim Order be used? An interim order is to be used when there is an immediate threat or imminent risk of a significant proportion to human health, public safety, security, or the environment, which requires immediate action, with no time to resolve the issue through the standard regulatory process, and/or where the current regulatory authorities are insufficient, or where those regulatory processes or standards are an impediment to carrying out an immediate response to an emergency situation. An interim order can be used if all the following questions can be answered in the affirmative:

• Can the outcome only be achieved through ensuring compliance with new regulatory requirements or by removing unnecessary existing statutory or regulatory impediments?
• Can the change to the rules be performed under the existing regulation-making authorities available in a statute containing an interim order provision?
• Would the federal regulatory process not be timely enough, even when expedited, to mitigate the risk within an acceptable period?

Provisions to ensure control over the actions of Ministers: Several provisions ensure a significant degree of control over the actions of Ministers in an emergency situation and include the following:

• the period within which the Minister is required to obtain approval from the Governor-in-Council is 14 days after the interim order is made;
• a copy of the interim order must be tabled in each house of Parliament within 15 days from the time it is issued, notwithstanding whether Parliament is in session;
• the Governor-in-Council approved interim order will be valid only for a period of up to one year;
• the interim order will be published in the Canada Gazette within 23 days from the time it is made;
• no person can be convicted of contravening the interim order, unless at the time of the contravention the interim order had been published in the Canada Gazette, the person had been notified, or reasonable steps had been taken to inform the person;
• the interim order can be repealed at any time; and
• interim orders are referred to the Standing Joint Committee on the Scrutiny of Regulations.