Tales from DC: US-Canada Regulatory Cooperation Council on GHS

From Adele Abrams, Esq., ASSE’s Federal Representative –

On January 31, 2012, I represented ASSE at a meeting of the US/Canada Regulatory Cooperation Council (RCC) at the US Department of Commerce. This was a day-long meeting covering various areas affected by the Global Harmonization Standard (GHS) that was developed through a United Nations project starting in 1992. This is the basis for OSHA’s update of its Hazard Communication Standard (HCS), which is currently on review at the final rule stage at the Office of Management and Budget.  I only attended the final session, which addressed GHS and occupational safety and health. Also in attendance were Richard Fairfax, Dorothy Dougherty and Maureen Ruskin of OSHA, and their Canadian counterparts, as well as representatives from a number of US and Canadian trade associations. Mr. Fairfax noted that the RCC was established to build on collaborative efforts in safety and health, and that classification and labeling of chemicals is well-suite to these goals because of extensive trade in chemicals between the two nations and employee exposures to such chemicals in the workplace. He called GHS a “major accomplishment” and briefly noted that the OSHA HCS/GHS final rule should be forthcoming soon, once OMB review is completed. Helen Ryan (Health Canada)  added that Canada’s system also needs change to deal with the details of GHS and to implement it without reducing worker protections. Canada will need to effectuate legislative changes to modify their hazard communication standard, rather than simply regulatory modifications.

After opening remarks by Mr. Fairfax, Ms. Ruskin and Ms. Ryan provided most of the formal presentation, which consisted of reviewing the draft work plan for implementation of GHS in the two countries. The goals are to guide the short-term harmonization of requirements and ensure that future amendments to HCS are also harmonized between US and Canada. They seek to align regulations and implement guidance, to reduce systemic barriers and to enable the countries to share information on GHS implementation.

Health Canada and OSHA have developed the work plan that has four initiatives designed to obtain the RCC objectives, and they are actively seeking stakeholder input for each objective. The complete Joint Action Plan has been forwarded to ASSE for review and potential comment. Any comments are due February 7, 2012, and (for US) should be submitted to Richard Fairfax at OSHA headquarters.

The work plan draft consists of the following:

• Action Item 1: Establish a mechanism to coordinate the implementation of GHS and any future updates to the GHS in each jurisdiction. The key deliverable is a Memorandum of Understanding between the countries to provide a permanent mechanism to coordinate future GHS implementation and interpretations between the agencies. The MOU should be signed within 6-12 months, after consultation with stakeholders.
• Action Item 2: As part of the permanent mechanism, set up a process for stakeholder input on the RCC GHS initiatives. The key deliverable is the permanent mechanism for stakeholder input, due within 3-6 months.
• Action Item 3: Coordinate technical interpretations related to GHS implementation for Workplace Chemicals. The key deliverable will be GHS educational materials on classification issues, to be done within 6-12 months and thereafter on an ongoing basis.
• Action Item 4: Implement the GHS for workplace chemicals. The key deliverables will be the OSHA final rule and Health Canada’s Amendments of the Hazardous Products Act and the Controlled Products Regulations.

During the Q&A session, there was an objection that this meeting was announced with insufficient notice for all who wished to participate to do so. More outreach to stakeholders was urged for future actions. There was a question on how consumer products and drugs would be affected by GHS and it was noted that both the US and Canada exempt most of these by either regulation or legislation so GHS would not change that. In addition, pesticides in the US are governed by the EPA, which will itself need to conform with GHS.

There was some discussion about whether Mexico would  be brought into the RCC. There have been initial discussions but no more action, and Mexico has voluntarily adopted only some provisions of GHS. The RCC will look to identify regulatory issues in common to the three countries.

It was suggested that the RCC should develop detailed materials on which GHS building blocks will be adopted and OSHA representatives said they are finalizing the alignment and will have information on the OSHA website. A side-by-side was needed, in the view of some participants. The Chemical Association of Canada asked for more details on classification and labeling elements to be synchronized and was told that would occur later. One participant also asked tht timing of the rule be synchronized: the US Rule will be published “shortly” and has a 3-year implementation schedule, so any Canadian changes will have a shorter timeframe in order to be contemporaneous with the US rule.

Doughtery called GHS as “successful process” and a model for putting safety and health issues forward before the United Nations in the future. She also noted that while MSHA is not at the table for RCC, OSHA and MSHA have had some discussions. GHS is not yet on MSHA’s regulatory agenda, but once OSHA’s rule is published, MSHA could attempt a direct final rule to make sure that different labels and SDS formats are not required for US workplaces that are under that agency. The Canadian representatives noted that the WHMIS draft regulations could be published in about 18 months.

The next step is to finalize the work plan and then move to establish stakeholder consultation, which may be done through web-based meetings as well as meeting such as the one on Jan. 31^st. The final work plan, once adopted, will be on the RCC website. In addition, Canada has four accredited organizations that develop standards and these could be incorporated by reference into the Canadian legislation. It was suggested that these, or others (e.g., ANSI or ASTM) dealing with hazard communication could also be adopted as a way to harmonize references between the US and Canadian rules.