FEDERAL REG

SOR/2016-141: Regulations Amending Certain Regulations Made Under the Canada Labour Code

REGISTRATION OF FEDERAL REGULATION - VIA OIC DATABASE, PRIOR TO PART II OF THE GAZETTE

Registered
June 14, 2016


REGULATORY IMPACT ANALYSIS STATEMENT (This statement is not part of the Regulations.) Executive summary Issues: The federal government is responsible for ensuring the occupational health and safety (OHS) of workers in federally regulated workplaces. Federal OHS regulations currently require that employers under federal jurisdiction ensure that chemicals in the workplace are properly labelled, tha... (Click for more)


Published on June 14, 2016

Bill Summary

SOR/2016-141: Regulations Amending Certain Regulations Made Under the Canada Labour Code

REGULATORY IMPACT ANALYSIS STATEMENT (This statement is not part of the Regulations.) Executive summary Issues: The federal government is responsible for ensuring the occupational health and safety (OHS) of workers in federally regulated workplaces. Federal OHS regulations currently require that employers under federal jurisdiction ensure that chemicals in the workplace are properly labelled, that safety data sheets are available to employees, and that employees receive education and training on the proper storage, handling and use of workplace chemicals. These requirements currently use terminology and definitions based on the Workplace Hazardous Materials Information System — 1988 (WHMIS 1988). As the Globally Harmonized System of Classification and Labelling of Chemicals (GHS) is implemented and hazardous products labelling requirements and control measures transition to the Workplace Hazardous Materials Information System — 2015 (WHMIS 2015), the continued application of the WHMIS 1988 could create uncertainty and confusion for employers and employees with respect to OHS obligations. This may result in decreasing safety if employee training remains aligned with the WHMIS 1988. As a result, the provisions pertaining to employee education must be updated to reflect the WHMIS 2015 terminology. Implementing the GHS requires the updating of OHS regulations under Canada Labour Code (the Code) to reflect the revised GHS terminology, references and requirements that have been introduced in the amendments to the Code and the Health Canada Hazardous Products Act, Hazardous Materials Information Review Act and Hazardous Products Regulations. Description: The GHS is a system that defines and classifies the hazards of chemical products, and communicates health and safety information on labels and safety data sheets. The regulatory amendments address three main components of worker safety regarding hazardous products: training, labelling and safety data sheets. Most of the amendments are technical and update wording and terminology. Additional amendments include increasing employee access to information. These amendments affect the five OHS regulations made under Part II of the Code: the Canada Occupational Health and Safety Regulations (COHSR); the Maritime Occupational Health and Safety Regulations (MOHSR); the Aviation Occupational Health and Safety Regulations (AOHSR); the On Board Trains Occupational Health and Safety Regulations (OTOHSR); and the Oil and Gas Occupational Safety and Health Regulations (OGOSHR). Cost-benefit statement: A cost-benefit analysis was undertaken to determine the economic and social impacts of the regulatory amendments over the next 20 years, expressed in constant 2014 dollars. The total costs associated with the regulatory amendments are about $3 million (present value discounted at 7% per year), with total benefits estimated at approximately $20.4 million (present value), for a total net benefit of approximately $17.4 million (present value). “One-for-One” Rule and small business lens: The “One-for-One” Rule does not apply to these Regulations. The regulatory changes do not place any administrative burden on businesses. However, the regulatory changes do impose costs on small businesses; therefore, the small business lens applies. Application of the lens identified flexibilities that reduced compliance costs for all businesses, including compliance cost reductions of $640,300 for small businesses, or $590 per small business (present value over a 10-year period, in 2014 constant dollars). Domestic and international coordination and cooperation: GHS is currently being implemented in Canada by federal and provincial governments. The GHS will facilitate trade with the United States and other jurisdictions that have implemented the GHS, through reduced compliance costs associated with transborder shipments of products. The regulatory amendments will enable Canada and the United States to meet the objectives set out by the Canada–United States Regulatory Cooperation Council. In addition, if Canada does not make a transition toward the new system, hazard information will be inconsistent between most international suppliers and federally regulated workplaces. Background Health and safety legislative framework The Labour Program of Employment and Social Development Canada (ESDC) administers the Code. Part II of the Code establishes the legislative framework for occupational health and safety in workplaces under federal jurisdiction. Employers under federal jurisdiction have a general obligation to ensure that the health and safety of every person they employ is protected while they are working. This can be achieved by complying with Part II of the Code and the standards set out in the COHSR, MOHSR, OTOHSR, AOHSR and OGOSHR. Employers have specific duties in regard to each workplace they control and every work activity under their authority. In order to meet this goal, workplace parties (employees and employers) are encouraged to work together to develop practices and policies, and to assess and address OHS issues effectively and in a timely manner. In addition, employers are required to provide employees with the information, education, training and supervision necessary to ensure their health and safety at work. The Labour Program oversees implementation, in partnership with Transport Canada and the National Energy Board, of the requirements for federally regulated workplaces. Transport Canada is responsible for on-board workplaces in the aviation, marine and rail sectors under federal jurisdiction, the National Energy Board is responsible for workplaces in the oil and gas sector under federal jurisdiction, and the Labour Program is responsible for workplaces in all other sectors under federal jurisdiction, such as banking; telecommunication; broadcasting; road transportation; shipping and related services; grain elevators, feed and seed mills; uranium mining; Crown corporations; and the federal public administration. Part X of the COHSR, Part 20 of MOHSR, Part V of AOHSR, Part VII of OTOHSR and Part XI of OGOSHR prescribe the workplace requirements and the exposure limits for hazardous substances, including the WHMIS. Workplace Hazardous Materials Information System (WHMIS) — 1988 WHMIS is a comprehensive system for providing health and safety information to promote the safe use of hazardous materials in Canadian workplaces. In 1986, the WHMIS Model OHS was developed as a consensus document by the Canadian Association of Administrators of Labour Legislation Occupational Health and Safety Committee (CAALL-OHS) through a multi-stakeholder consultative process. The WHMIS Model OHS was created as a guiding document for Canadian jurisdictions in order to harmonize, to the extent possible, WHMIS regulations across Canadian OHS jurisdictions. WHMIS has been in place since 1988. It is implemented through interlocking federal, provincial and territorial legislation. At the federal level, the Hazardous Products Act and the Hazardous Products Regulations require the suppliers of hazardous products intended for workplace use to classify these products and provide related hazard information through labels and safety data sheets. Federal, provincial and territorial OHS agencies, including the Labour Program, ensure compliance with the established requirements for workplace parties (employers and employees) under their respective legislation. These requirements include the requirement for employers to ensure that hazardous products are labelled in the workplace, that safety data sheets on workplace hazardous products are made available to employees and that employees receive education and training on the proper storage, handling and use of workplace hazardous products. In the federal jurisdiction, these requirements are prescribed in regulations under Part II of the Code. Health Canada is responsible for administering the requirements for suppliers of hazardous materials (e.g. manufacturers, importers and distributors) under the Hazardous Products Act. The Labour Program administers, in partnership with Transport Canada and the National Energy Board, the WHMIS employer requirements for federally regulated workplaces. In response to the challenges faced by suppliers, employers and employees due to the lack of international alignment in the classification, labelling and provision of safety information for workplace hazardous chemicals, Canada, the United States and other countries worked together under the auspices of the United Nations over two decades to develop the GHS. The Canada–United States Regulatory Cooperation Council was created in February 2011 by the Prime Minister of Canada and the President of the United States. One of its key objectives is to facilitate trade between the two countries. In December 2011, one of twenty-nine initiatives announced as part of the Regulatory Cooperation Council Joint Action Plan was the coordinated implementation of the GHS for workplace hazardous chemicals. Specifically, Canada and the United States agreed to “align and synchronize implementation of common classification and labelling requirements for workplace hazardous chemicals within the mandate of the United States Occupational Safety and Health Administration and Health Canada.” The United States is now in the process of applying the GHS to its hazard information system for workplace hazardous chemicals. Through the Regulatory Cooperation Council initiative, Canada has a unique opportunity to substantially align its workplace hazardous chemicals regulatory regime with that of its major trading partner, as well as achieve significant alignment with other trading partners (e.g. the European Union, Australia, China, Japan, South Korea) that are also in the process of implementing the GHS. Parliament amended the Hazardous Products Act, the Hazardous Materials Information Review Act and the Code to implement the new common classification and labelling requirements for workplace hazardous products. Amendments to the Hazardous Products Regulations, which came into force on February 11, 2015, integrated GHS into Canada’s classification, labelling and safety data sheet requirements applying to suppliers and importers. The amendments also provide for a transitional approach designed to gradually phase in the implementation of the GHS, whereby employers are given time to adopt the new system. Workplace Hazardous Materials Information System (WHMIS) — 2015 WHMIS 2015 sets out Canada’s requirements for workplace hazardous products. Updates to reflect the GHS are incorporated into WHMIS. In order to implement the GHS, the WHMIS Model OHS has been updated by an ad hoc committee of the CAALL-OHS to reflect the new GHS components. Of note, the GHS contains many elements that represent improvements to WHMIS. For example, the GHS hazard classification criteria are more comprehensive and detailed, which improves the ability to indicate the severity of hazards. Implementing the 2015 WHMIS Model OHS ensures the consistent and coordinated management of hazardous substances and enhanced protection across Canada. Federal, provincial and territorial jurisdictions are using this model to update their respective legislation and regulations. Federally, this model is used as the basis for the regulatory changes. Labour Program officials have been involved in the revision of the WHMIS Model OHS. Issues Federal OHS regulations currently require that employers under federal jurisdiction ensure that chemicals in the workplace are properly labelled, that safety data sheets are available to employees, and that employees receive education and training on the proper storage, handling and use of workplace chemicals. These requirements currently use terminology and definitions based on the WHMIS 1988. As the GHS is implemented and hazardous products labelling and control transition to the WHMIS 2015, the continued application of the WHMIS 1988 could create uncertainty and confusion for employers and employees with respect to OHS obligations. This may result in decreasing safety if employee training remains aligned with the WHMIS 1988. As a result, the provisions pertaining to employee education must be updated to reflect WHMIS 2015 terminology. Implementing the GHS requires the updating of OHS regulations under the Code to reflect the revised GHS terminology, references and requirements that have been introduced in the amendments to the Code, the Hazardous Products Act, the Hazardous Materials Information Review Act, and the Hazardous Products Regulations. The GHS will facilitate trade with the United States and other jurisdictions that have implemented the GHS through reduced compliance costs associated with transborder shipments of products. If Canada does not make a transition toward the new system, hazard information will be inconsistent between suppliers and federally regulated workplaces. Objectives The main objectives of the amendments to the OHS regulations are as follows: Improve the health and safety of Canadian employees by harmonizing with the amendments to the Code, the Hazardous Products Act and the Hazardous Materials Information Review Act; Enable Canadian employees to have more consistent and clearer information on how to safely use hazardous materials in the workplace; Reduce the potential for confusion among employees, which could in turn reduce accidents and lead to reduced costs for employers and increased productivity for Canadian businesses; Increase employee protection through the adoption of an improved, globally recognized standard for communicating the hazards associated with workplace hazardous products; and Fulfill a commitment contained in the December 2011 Canada–United States Regulatory Cooperation Council Action Plan. Description The amendments modify provisions in the COHSR, MOHSR, OTOHSR, AOHSR and OGOSHR in order to implement the GHS. In general, employers are required to ensure that hazardous products education and training, labelling and safety data sheets are aligned with the GHS and WHMIS 2015. The amendments are consistent with current training, labelling and safety data sheet requirements, but update these requirements to align with the GHS and the WHMIS 2015, the Hazardous Products Act and the Hazardous Products Regulations. Other amendments update wording or terminology, for example, changing “controlled product” to “hazardous product” and “material safety data sheet” to “safety data sheet.” In addition, the definition of “readily available” is modified to ensure that documents, such as the safety data sheets and records of education and training, are present and accessible at the workplace at all times. Employers are also required to consult the policy committee, the workplace committee, or the health and safety representative, about document accessibility. The amendments provide a transitional provision to gradually phase in the implementation of the GHS whereby employers are given time to adapt to the new system. More details on the transitional approach are provided in the Implementation, enforcement and service standards section at the end of this Regulatory Impact Analysis Statement (RIAS). Regulatory and non-regulatory options considered The options considered were maintaining the status quo (OHS requirements aligned with the WHMIS 1988) or proceeding with the amendments (OHS requirements aligned with the WHMIS 2015 and the GHS). The first was not acceptable for the following reasons: The GHS is already being implemented, via past amendments to the Code, the Hazardous Products Act, the Hazardous Materials Information Review Act, and the Hazardous Products Regulations. As hazardous products labelling and control transition to the WHMIS 2015, the continued application of the WHMIS 1988 could create uncertainty and confusion for employers and employees with respect to OHS obligations. This may result in decreasing safety if employee training remains aligned with the WHMIS 1988. The status quo would also result in eventual misalignment between OHS requirements in federal jurisdiction workplaces and requirements applying to suppliers and importers, provincial jurisdiction workplaces and the international community. Benefits and costs The amendments are primarily housekeeping in nature, modifying terminology in the regulations to reflect changes to the Code and other statutes, made as part of GHS implementation. Benefits of these modifications include greater clarity and reduced likelihood of confusion, with negligible associated costs. The benefits and costs of the three main components of the proposal — training, labelling and safety data sheets — were assessed in greater detail. Overall, the cost of the regulatory amendments is estimated at approximately $3 million over the next 20 years, with benefits estimated at approximately $20.4 million over this period. Total net benefits are therefore estimated at approximately $17.4 million, (see footnote 6) with a benefit-cost ratio of 6.86:1. Benefits By ensuring that training, labelling and safety data sheet requirements reflect the WHMIS 2015 and GHS, the amendments are expected to result in an annual decrease of about 2 minor injuries and 1.4 time-loss injuries in the federally regulated workforce. The largest part of these benefits would result from one anticipated fatality avoided, every three years, in the federal jurisdiction. Businesses would, overall, experience a decrease in lost work time, a lesser need to replace injured employees as well as lower workers’ compensation and collective health insurance premiums. These benefits result primarily from the revised training requirements, which would ensure that employees handling hazardous products receive training with regards to GHS labels and Safety Data Sheets, with a monetized benefit of $20.4 million over 20 years. Costs Three key cost categories were assessed: training costs, costs of reclassification and safety data sheet (SDS)/label development, and costs of printing colour labels and SDSs. Only the incremental costs of training employees on the GHS and WHMIS 2015 were deemed to have a significant impact. The use of labels and SDSs under the old system, for hazardous products that are in the workplace on December 1, 2018, is permitted under the regulatory amendments until May 31, 2019. It is anticipated that the vast majority of hazardous material stock obtained under the old classification system would be used up by this date and, as a result, no significant amount of incremental label reclassification and development, or printing, would be required. As a result, costs associated to the new SDS would be negligible. Some incremental training costs would be incurred as employees, who are likely to handle or be exposed to hazardous products as part of their duties, would be required to receive GHS training. Employees already trained under WHMIS 1988 would face incremental costs for re-training under GHS (an estimated 2 hours of training per employee), while for future employees, GHS training would replace WHMIS 1988 training, with zero incremental cost. Costs (present value) to comply with the new requirements under the GHS are estimated at $1.4 million in training and $1.6 million in opportunity costs (the cost of labour while the employees are in training) for a total of $3 million over 20 years. Cost-benefit statement for the GHS This table presents a cost-benefit statement for the GHS. Cost-Benefit Statement Base Year 2015 2016 2019 2022 2025 2028 2031 Final Year 2034 Total (Present Value) Average Annual A. Quantified impacts in 2014 dollars A. Quantified impacts in 2014 dollars A. Quantified impacts in 2014 dollars A. Quantified impacts in 2014 dollars A. Quantified impacts in 2014 dollars A. Quantified impacts in 2014 dollars A. Quantified impacts in 2014 dollars A. Quantified impacts in 2014 dollars A. Quantified impacts in 2014 dollars A. Quantified impacts in 2014 dollars A. Quantified impacts in 2014 dollars Benefits $1,164,091 $1,995,585 $1,995,585 $1,995,585 $1,995,585 $1,995,585 $1,995,585 $1,995,585 $20,364,155 $1,954,010 Costs $2,969,982 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $2,969,982 $148,499 Net benefits −$1,805,891 $1,995,585 $1,995,585 $1,995,585 $1,995,585 $1,995,585 $1,995,585 $1,995,585 $17,394,173 $1,805,511 B. Quantified impacts in non-monetary terms ; e.g. risk assessment B. Quantified impacts in non-monetary terms ; e.g. risk assessment B. Quantified impacts in non-monetary terms ; e.g. risk assessment B. Quantified impacts in non-monetary terms ; e.g. risk assessment B. Quantified impacts in non-monetary terms ; e.g. risk assessment B. Quantified impacts in non-monetary terms ; e.g. risk assessment B. Quantified impacts in non-monetary terms ; e.g. risk assessment B. Quantified impacts in non-monetary terms ; e.g. risk assessment B. Quantified impacts in non-monetary terms ; e.g. risk assessment B. Quantified impacts in non-monetary terms ; e.g. risk assessment B. Quantified impacts in non-monetary terms ; e.g. risk assessment Positive impacts (avoided accidents) Reduction of four work-related injuries per year and one work-related fatality every three years. Reduction of four work-related injuries per year and one work-related fatality every three years. Reduction of four work-related injuries per year and one work-related fatality every three years. Reduction of four work-related injuries per year and one work-related fatality every three years. Reduction of four work-related injuries per year and one work-related fatality every three years. Reduction of four work-related injuries per year and one work-related fatality every three years. Reduction of four work-related injuries per year and one work-related fatality every three years. Reduction of four work-related injuries per year and one work-related fatality every three years. Reduction of four work-related injuries per year and one work-related fatality every three years. Reduction of four work-related injuries per year and one work-related fatality every three years. C. Qualitative impacts C. Qualitative impacts C. Qualitative impacts C. Qualitative impacts C. Qualitative impacts C. Qualitative impacts C. Qualitative impacts C. Qualitative impacts C. Qualitative impacts C. Qualitative impacts C. Qualitative impacts Qualitative impacts: safer workplaces, increased productivity, increased awareness of hazardous substances. Qualitative impacts: safer workplaces, increased productivity, increased awareness of hazardous substances. Qualitative impacts: safer workplaces, increased productivity, increased awareness of hazardous substances. Qualitative impacts: safer workplaces, increased productivity, increased awareness of hazardous substances. Qualitative impacts: safer workplaces, increased productivity, increased awareness of hazardous substances. Qualitative impacts: safer workplaces, increased productivity, increased awareness of hazardous substances. Qualitative impacts: safer workplaces, increased productivity, increased awareness of hazardous substances. Qualitative impacts: safer workplaces, increased productivity, increased awareness of hazardous substances. Qualitative impacts: safer workplaces, increased productivity, increased awareness of hazardous substances. Qualitative impacts: safer workplaces, increased productivity, increased awareness of hazardous substances. Qualitative impacts: safer workplaces, increased productivity, increased awareness of hazardous substances. “One-for-One” Rule The implementation of the GHS does not include requirements for industry to demonstrate compliance with the Regulations, such as collecting, processing, reporting and retaining information or completing forms. As a result, the Regulations do not place an administrative burden on industry, and the “One-for-One” Rule does not apply. Small business lens Training requirements related to the amendments may impact small businesses more significantly, as their smaller workforces may not enable them to enjoy volume training discounts available to larger organizations. Compliance costs are related to the training of all employees working in some capacity with hazardous products as part of their duties. It is estimated that approximately 1 090 small businesses would be affected by the GHS, primarily in the transport and energy sectors, with an average of 16 employees requiring training per small business. Two options were considered: an initial option, whereby GHS training must be completed immediately, and a flexible option, where the implementation of GHS training may be postponed, under certain circumstances, up to almost three years after the coming into force of the Regulations. In the initial option, the total cost of training is a one-time outlay of approximately $2,050 per small business (present value). Costs comprise two components. The first component is the cost of the training course itself, which can be done online and is assumed to cost approximately $60 (current dollars) per employee taking the course. (see footnote 7) This constitutes the average cost from a large sample of providers offering courses on the GHS. The other component is the opportunity cost of the employees taking the training, which averages 2 hours in the sample courses surveyed and represents approximately $68 dollars (average wage in the federal jurisdiction) in wages in current dollars (includes non-wage benefits) per employee. Under the initial option, training would commence immediately following the coming into force of the amendments to follow closely the timelines of the European Union and the United States, which were slated to fully implement the GHS by December 1, 2015. It was decided to include the flexible option in the Regulations to thus provide a transitional approach to all business. The flexible option would delay implementation of training requirements for business until December 1, 2018, if employers were to continue using only products complying with WHMIS 1988. Training on WHMIS 2015 can further be postponed until May 31, 2019, in cases where the employers continue to only use hazardous products complying with WHMIS 1988 that are in the workplace on December 1, 2018. The actual costs of the training and its duration are identical to the initial option; however, the lower cost is directly related to the delay in providing training on the GHS, as some employers will continue exclusively using products under WHMIS 1988 and may not incur any costs as a result until almost three years after the coming into force of the Regulations. Depending on the extent employers start to use products under WHMIS 2015, costs to employers will range between $1,460 and $2,050, with the lower amount assuming all employers only use products under WHMIS 1988 until December 1, 2018, and the higher amount assuming they all use products under WHMIS 2015 immediately after the coming into force of the Regulations. The flexible option allows employers who continue to use products under WHMIS 1988 to spread out the training costs for up to close to three years rather than in the first year after the coming into force of the Regulations, which will mitigate their initial cost burden. The flexible option is recommended due to this reduced cost, limited associated risk, and consistency with the broad implementation timeline for the GHS in Canada. This table presents the recommended options for timelines for GHS in Canada. Flexible Option Flexible Option Initial Option Initial Option Short description GHS training commences in 2018 GHS training commences in 2018 GHS training commences in 2016 GHS training commences in 2016 Maximum number of small businesses impacted 1 090 1 090 1 090 1 090 Annualized Average ($ 2014) Present Value ($ 2014) Annualized Average ($ 2014) Present Value ($ 2014) Compliance costs $226,470 $1,590,620 $317,630 $2,230,920 Administrative costs $0 $0 $0 $0 Total costs $226,470 $1,590,620 $317,630 $2,230,920 Average cost per small business $210 $1,460 $290 $2,050 Consultation The Regulatory Review Committee, a committee established by the Labour Program that is comprised of employers, employees and Labour Program experts in the area of occupational health and safety, identified priority areas for review within the COHSR. In 2009, a working group, which included industry, employee and Labour Program representatives, was created with the intent to review in depth Part X, Hazardous Substances, of the COHSR. Stakeholders met 18 times. Consultations were completed in spring 2014. The ongoing national (federal, provincial and territorial) review to harmonize the provisions of WHMIS with the GHS also led the Part X working group to review sections on the WHMIS 1988. Canadian stakeholders (i.e. representatives of federal, provincial and territorial governments, suppliers, employers and workers) have been involved in the development of the GHS, under the auspices of the United Nations, for more than 20 years. The Government of Canada, through Health Canada, has consulted widely with key partners and stakeholders who have expressed support for the proposed approach. Industry is particularly supportive of this work and has been encouraging timely action along these lines. Over the years, Health Canada has consulted at length with stakeholders on the GHS and its implementation for workplace hazardous products. This has been done under the Intergovernmental WHMIS Coordinating Committee (IWCC), which is made up of representatives of federal, provincial and territorial OHS agencies, as well as with the WHMIS Current Issues Committee (CIC), which is made up of IWCC members as well as representatives from suppliers, employers, and worker organizations. The Labour Program is a member of the IWCC and the CIC. Between 2012 and 2015, a series of stakeholder meetings has taken place to discuss the regulatory proposals and to better understand the U.S. and international context. From June 29, 2013, to September 15, 2013, Health Canada held a public consultation on the proposed Hazardous Products Regulations. Written submissions were received from industry associations, suppliers, employers, provincial and territorial governments, worker organizations, health groups, OHS professionals and individuals. In addition, the regulatory amendments and related comments were discussed with stakeholders at face-to-face meetings in Ottawa in October 2014 in which the Labour Program participated. These comments and discussions were taken into consideration in arriving at the regulatory amendments. The Labour Program also consulted with workplace parties on the specific federal amendments to OHS regulations in June 2014. Employer and employee stakeholders have also participated in approximately 13 working group meetings to discuss the WHMIS Model OHS. Employers and employee organizations support the implementation of the GHS and want to ensure that worker health and safety protections are maintained or expanded (and not reduced) through alignment with the United States. Employers would face additional training costs associated with the implementation of the GHS, but it is expected that benefits would accrue from employees receiving clearer and more consistent hazard communication information, resulting in fewer workplace injuries and illnesses. The Government of Canada, principally Health Canada, continues to engage key partners and stakeholders through regular teleconferences and meetings, presentations at association events, and ongoing one-on-one dialogue. These amendments are designed to continue the regulatory cooperation upon which WHMIS is based. The regulatory regime continues to establish the requirements related to the classification and labelling of workplace hazardous products by suppliers, and federal, provincial and territorial OHS legislation and regulations continue to establish the employer requirements for education and training at the workplace level. Therefore, collaborative work has been, and continues to be, undertaken with federal, provincial and territorial governments to coordinate these two key components of Canada’s workplace hazardous products program. The Canadian Centre for Occupational Health and Safety, in partnership with regulatory jurisdictions across Canada, has developed the WHMIS.org portal and free on-line training courses to help workers and workplaces prepare for WHMIS 2015. Comments received following publication of the proposed Regulations in the Canada Gazette, Part I, on July 11, 2015 The proposed Regulations were prepublished in the Canada Gazette, Part I, on July 11, 2015, followed by a 30-day public comment period. During that period, a number of questions and comments were received from an industry association and an employee representative. Comments were reviewed and addressed where appropriate, bearing in mind the objective of improving the health and safety of Canadian employees through the implementation of the GHS and by harmonizing with the amendments to the Code, the Hazardous Products Act and the Hazardous Materials Information Review Act. Key stakeholder comments, and Labour Program responses, are provided below. Flexible implementation of training requirements Comment: In order to develop training programs and/or arrange training with a suitable training provider, an industry association recommended flexibility for implementation prior to December 1, 2018. Response: The proposed amendments published in the Canada Gazette, Part I, on July 11, 2015, included flexibility to delay training on WHMIS 2015 until December 1, 2018. In addition, if on December 1, 2018, employers have products in their workplaces that meet the old requirements, they will have until May 31, 2019, to use those products or meet the new requirements. On and after June 1, 2019, all products within federally regulated workplaces must comply with the new requirements. The Labour Program recommends that employers do not wait to educate and train employees on WHMIS 2015 to help them understand what the new pictograms mean and where to find information they need. In addition, as long as there are products with WHMIS 1988 labels and material safety data sheets in the workplace, employees will also need to understand WHMIS 1988. This means that any new employees will need training on both systems until there are no longer products with WHMIS 1988 labels and material safety data sheets in the workplace. Reviews of the employee education and training programs Comment: An industry association indicated that annual training program revisions were unnecessary, and that revisions are only needed following significant product or procedure changes. Response: Annual reviews of employee education and training programs, prescribed under paragraph 10.14(3)(a) of COHSR and paragraph 7.16(3)(a) of OTOHSR are not new requirements, and were originally included as a means to ensure that training remains up to date. The WHMIS Model OHS, updated to align with the GHS, includes an annual review of the program. A consensus, on annual reviews of training programs, was also reached within the Part X working group, under the Labour Program’s Regulatory Review Committee, to review in depth provisions related to hazardous substances. Employers were represented by federally regulated employers — transportation and communications. The Labour Program considers that the annual review of the changes in the workplace or with the hazardous products is essential to an efficient and safe education and training program. It requires that whenever the program is revised and procedures are modified, the affected employees will be provided with the revised education and training. Lengthening the review period would likely be seen as reducing the level of safety for employees. Comment: Acknowledging that paragraphs 10.14(3)(b) and 7.16(3)(b) are already in the COHSR and the OTOHSR, an industry association indicated that a requirement for training program review when there is a “change of conditions” needs to be clarified. There are many situations where a change in condition would not warrant a training program revision. Examples include a change of supplier for the same product or a new product in an existing class, etc. Response: Paragraphs 10.14(3)(b) of the COHSR and 7.16(3)(b) of the OTOHSR require that every employer shall, in consultation with the policy committee or, if there is no policy committee, the workplace committee or the health and safety representative, review the employee education and training program and, if necessary, revise it whenever there is a change in conditions in respect of the hazardous substances in the workplace. Although it is not a defined term, “change in conditions” could include changes in the conditions in which a hazardous substance may be stored, handled or used in the workplace and would generally exclude changes that do not impact these variables (e.g. change in supplier, with no change in how a product is stored or handled). These types of changes may be based on information an employer has received from a supplier or it may be based on changes decided in the workplace. For example, a decision may be made in the workplace to use a product differently, like spraying a solvent rather than brushing it, which may require changes to the training program, to communicate to employees a requirement for respiratory protection. “Paper or electronic record” format Comment: An industry association noted an inconsistency between the terms used in section 7.18 of the OTOHSR (“written record”) and section 10.15 of COHSR (“paper or electronic record”). Response: The Department of Employment and Social Development Act provides that, for the purposes of the Code and regulations made under the Code, a requirement that a document be in writing is satisfied by an electronic document if certain statutory requirements are met. As a result, the Labour Program does not plan any change to this element at this time, but will consider reviewing this language in an upcoming opportunity to amend the OHS regulations. Role of the OHS policy committees and the workplace committees in enforcing the GHS. Comment: A stakeholder indicated that the Labour Program over-emphasized, in the RIAS, the responsibility of the OHS committees to resolve the OHS issue when describing the “Enforcement of the Globally Harmonized System.” Response: Overall, the Labour Program’s compliance policy outlines the proactive and reactive activities used by delegated officials to ensure compliance. While OHS policy committees and workplace committees are the primary mechanisms through which employers and employees work together to solve job-related health and safety problems, the employer remains ultimately responsible for workplace health and safety. Delegated officials assist the industry in establishing and implementing policy committees and workplace committees, and related programs. Additional information, on employer liability, is provided below. Rationale The full implementation of the GHS requires a number of housekeeping amendments to regulations made under Part II of the Code, amendments which improve clarity, and reduce the likelihood of confusion, with resulting health and safety benefits for Canadian workers, including fewer personal injuries, fewer acute and chronic illnesses, and fewer fatalities. The overall discounted costs of the proposal are estimated at approximately $3 million over the next 20 years, with discounted benefits anticipated at approximately $20.4 million over this period. Total discounted net benefits over 20 years are therefore projected to be approximately $17.4 million. These regulatory amendments also support the improved alignment of workplace hazardous products requirements with similar requirements in the United States, consistent with commitment under the December 2011 Canada–United States Regulatory Cooperation Council Action Plan. Implementation, enforcement and service standards Implementation of the Globally Harmonized System A transitional approach has been designed to gradually phase in the implementation of the GHS whereby employers are given time to adapt to the new system. Similar to the transition to the GHS in the United States, the transition to the GHS in Canada is taking place in phases over a multi-year timeframe and is intended, to the extent possible, to be synchronized nationally across federal, provincial and territorial jurisdictions. There are two transition periods for federally regulated employers. The first one would begin when the regulations come into force and ends on November 30, 2018. During this time, employers can use either the old or new requirements. On and after December 1, 2018, employers would have to comply with most of the new requirements and ensure that all employees are adequately trained. If on December 1, 2018, employers have hazardous products in their workplaces that meet the requirements under the old regime, they have until May 31, 2019, to use those products or bring them into compliance (e.g. re-label them). As of June 1, 2019, all products within federally regulated workplaces must comply with the new requirements. On that date, the transition to WHMIS 2015 would be completed for all federally regulated workplaces. Enforcement of the Globally Harmonized System Health Canada will continue to designate qualified federal OHS inspectors as Hazardous Products Act inspectors. The Labour Program, as part of the IWCC and the CAALL-OHS Committee, is supporting Health Canada in the development of training materials, and is undertaking training sessions for federal OHS inspectors to promote a common understanding of the Hazardous Products Regulations. Overall, the Labour Program’s compliance policy outlines the proactive and reactive activities used by delegated officials to ensure compliance. While OHS policy committees and workplace committees are the primary mechanisms through which employers and employees work together to solve job-related health and safety problems, the employer remains ultimately responsible for workplace health and safety. Delegated officials assist the industry in establishing and implementing policy committees and workplace committees, and related programs. Statutory powers allow delegated officials to enter work sites and perform various activities to enforce compliance with the Code and the OHS regulations. For example, delegated officials may conduct safety audits and inspections. They may also investigate the circumstances surrounding the report of a contravention, work accident, refusal to work, or hazardous occurrence. If violations of the Regulations are observed and are not resolved internally via policy and workplace committees, enforcement actions towards the employer for non-compliance would be used by a delegated official. Enforcement actions may range from the issuance of a written notice to further steps such as the initiation of prosecution. Initially, an attempt to correct non-compliance with the Regulations, when non-compliance does not represent a dangerous condition, is made through the issuance of an Assurance of Voluntary Compliance (AVC). An AVC is a written commitment that a contravention will be corrected within a specified time. Failure to complete the corrective actions specified in the AVC may lead the delegated official to issue a direction. A direction is issued whenever a serious contravention or dangerous condition exists and when an AVC is not obtainable or has not been fulfilled. Failure to comply with a direction is a violation of the Code and as such is enforceable by prosecution. Offences can lead to imprisonment. The maximum penalty for offences is, on summary conviction, a fine of $1M, or on conviction on indictment, imprisonment for up to two years and/or a fine of $1M. Contact Doris Berthiaume Senior Policy Analyst Occupational Health and Safety Policy Unit Program Development and Guidance Directorate Labour Program Employment and Social Development Canada 165 de l’Hôtel-de-Ville Street Place du Portage, Phase II, 10th Floor Gatineau, Quebec K1A 0J2 Telephone: 819-654-4445 Email: [email protected] Small Business Lens Checklist 1. Name of the sponsoring regulatory organization: Department of Employment and Social Development — Labour Program 2. Title of the regulatory proposal: Regulations Amending Certain Regulations Made Under the Canada Labour Code 3. Is the checklist submitted with a RIAS for the Canada Gazette, Part I or Part II? ☐ Canada Gazette, Part I ☑ Canada Gazette, Part II A. Small business regulatory design This table presents the Small business regulatory design. I Communication and transparency Yes No N/A 1. Are the Regulations or requirements easily understandable in everyday language? ☑ ☐ ☐ 2. Is there a clear connection between the requirements and the purpose (or intent) of the Regulations? ☑ ☐ ☐ 3. Will there be an implementation plan that includes communications and compliance promotion activities that informs small business of a regulatory change and guides them on how to comply with it (e.g. information sessions, sample assessments, toolkits, Web sites)? ☑ ☐ ☐ 4. If new forms, reports or processes are introduced, are they consistent in appearance and format with other relevant government forms, reports or processes? ☐ ☐ ☑ These Regulations do not require new forms, reports or processes. These Regulations do not require new forms, reports or processes. These Regulations do not require new forms, reports or processes. These Regulations do not require new forms, reports or processes. These Regulations do not require new forms, reports or processes. II Simplification and streamlining Yes No N/A 1. Will streamlined processes be put in place (e.g. through BizPaL, Canada Border Services Agency single window) to collect information from small businesses where possible? ☐ ☐ ☑ These Regulations do not collect information from small businesses. These Regulations do not collect information from small businesses. These Regulations do not collect information from small businesses. These Regulations do not collect information from small businesses. These Regulations do not collect information from small businesses. 2. Have opportunities to align with other obligations imposed on business by federal, provincial, municipal or international or multinational regulatory bodies been assessed? ☑ ☐ ☐ Throughout the regulatory development process, efforts were made to align the Regulations with other regulations under the Canada Labour Code, Part II, other Canadian jurisdictions and other countries. Reports are made on efforts to ensure that Canada’s international obligations are respected in such areas as human rights, health, safety, security, international trade and the environment. The Globally Harmonized System of Classification and Labelling of Chemicals (GHS) was endorsed as a global standard by the United Nations General Assembly in 2003 for four hazard communication systems: the transportation of dangerous goods, consumer products, pest control products and workplace chemicals. The United States, the European Union (EU), Australia, New Zealand, China, Japan, South Korea and others have either applied, or are in the process of applying, the GHS to their workplace hazardous chemicals hazard communication systems. Throughout the regulatory development process, efforts were made to align the Regulations with other regulations under the Canada Labour Code, Part II, other Canadian jurisdictions and other countries. Reports are made on efforts to ensure that Canada’s international obligations are respected in such areas as human rights, health, safety, security, international trade and the environment. The Globally Harmonized System of Classification and Labelling of Chemicals (GHS) was endorsed as a global standard by the United Nations General Assembly in 2003 for four hazard communication systems: the transportation of dangerous goods, consumer products, pest control products and workplace chemicals. The United States, the European Union (EU), Australia, New Zealand, China, Japan, South Korea and others have either applied, or are in the process of applying, the GHS to their workplace hazardous chemicals hazard communication systems. Throughout the regulatory development process, efforts were made to align the Regulations with other regulations under the Canada Labour Code, Part II, other Canadian jurisdictions and other countries. Reports are made on efforts to ensure that Canada’s international obligations are respected in such areas as human rights, health, safety, security, international trade and the environment. The Globally Harmonized System of Classification and Labelling of Chemicals (GHS) was endorsed as a global standard by the United Nations General Assembly in 2003 for four hazard communication systems: the transportation of dangerous goods, consumer products, pest control products and workplace chemicals. The United States, the European Union (EU), Australia, New Zealand, China, Japan, South Korea and others have either applied, or are in the process of applying, the GHS to their workplace hazardous chemicals hazard communication systems. Throughout the regulatory development process, efforts were made to align the Regulations with other regulations under the Canada Labour Code, Part II, other Canadian jurisdictions and other countries. Reports are made on efforts to ensure that Canada’s international obligations are respected in such areas as human rights, health, safety, security, international trade and the environment. The Globally Harmonized System of Classification and Labelling of Chemicals (GHS) was endorsed as a global standard by the United Nations General Assembly in 2003 for four hazard communication systems: the transportation of dangerous goods, consumer products, pest control products and workplace chemicals. The United States, the European Union (EU), Australia, New Zealand, China, Japan, South Korea and others have either applied, or are in the process of applying, the GHS to their workplace hazardous chemicals hazard communication systems. Throughout the regulatory development process, efforts were made to align the Regulations with other regulations under the Canada Labour Code, Part II, other Canadian jurisdictions and other countries. Reports are made on efforts to ensure that Canada’s international obligations are respected in such areas as human rights, health, safety, security, international trade and the environment. The Globally Harmonized System of Classification and Labelling of Chemicals (GHS) was endorsed as a global standard by the United Nations General Assembly in 2003 for four hazard communication systems: the transportation of dangerous goods, consumer products, pest control products and workplace chemicals. The United States, the European Union (EU), Australia, New Zealand, China, Japan, South Korea and others have either applied, or are in the process of applying, the GHS to their workplace hazardous chemicals hazard communication systems. 3. Has the impact of the Regulations on international or interprovincial trade been assessed? ☑ ☐ ☐ The Government of Canada is adopting international standards to classify and label chemicals in the workplace through the implementation of the GHS. The GHS will facilitate trade with the United States and other jurisdictions that have implemented the GHS through reduced compliance costs associated with transborder shipments of products. The Government of Canada is adopting international standards to classify and label chemicals in the workplace through the implementation of the GHS. The GHS will facilitate trade with the United States and other jurisdictions that have implemented the GHS through reduced compliance costs associated with transborder shipments of products. The Government of Canada is adopting international standards to classify and label chemicals in the workplace through the implementation of the GHS. The GHS will facilitate trade with the United States and other jurisdictions that have implemented the GHS through reduced compliance costs associated with transborder shipments of products. The Government of Canada is adopting international standards to classify and label chemicals in the workplace through the implementation of the GHS. The GHS will facilitate trade with the United States and other jurisdictions that have implemented the GHS through reduced compliance costs associated with transborder shipments of products. The Government of Canada is adopting international standards to classify and label chemicals in the workplace through the implementation of the GHS. The GHS will facilitate trade with the United States and other jurisdictions that have implemented the GHS through reduced compliance costs associated with transborder shipments of products. 4. If the data or information, other than personal information, required to comply with the Regulations is already collected by another department or jurisdiction, will this information be obtained from that department or jurisdiction instead of requesting the same information from small businesses or other stakeholders? (The collection, retention, use, disclosure and disposal of personal information are all subject to the requirements of the Privacy Act. Any questions with respect to compliance with the Privacy Act should be referred to the department’s or agency’s ATIP office or legal services unit.) ☐ ☐ ☑ These Regulations do not collect information or personal information. These Regulations do not collect information or personal information. These Regulations do not collect information or personal information. These Regulations do not collect information or personal information. These Regulations do not collect information or personal information. 5. Will forms be pre-populated with information or data already available to the department to reduce the time and cost necessary to complete them? (Example: When a business completes an online application for a licence, upon entering an identifier or a name, the system pre-populates the application with the applicant’s personal particulars, such as contact information, date, etc., when that information is already available to the department.) ☐ ☐ ☑ These Regulations do not collect any new information or new data. These Regulations do not collect any new information or new data. These Regulations do not collect any new information or new data. These Regulations do not collect any new information or new data. These Regulations do not collect any new information or new data. 6. Will electronic reporting and data collection be used, including electronic validation and confirmation of receipt of reports where appropriate? ☐ ☐ ☑ These Regulations do not contain any requirements for electronic reporting and data collection to be used, including electronic validation and confirmation of receipts of reports. These Regulations do not contain any requirements for electronic reporting and data collection to be used, including electronic validation and confirmation of receipts of reports. These Regulations do not contain any requirements for electronic reporting and data collection to be used, including electronic validation and confirmation of receipts of reports. These Regulations do not contain any requirements for electronic reporting and data collection to be used, including electronic validation and confirmation of receipts of reports. These Regulations do not contain any requirements for electronic reporting and data collection to be used, including electronic validation and confirmation of receipts of reports. 7. Will reporting, if required by the Regulations, be aligned with generally used business processes or international standards if possible? ☐ ☐ ☑ The regulatory amendments do not contain any reporting requirements. The regulatory amendments do not contain any reporting requirements. The regulatory amendments do not contain any reporting requirements. The regulatory amendments do not contain any reporting requirements. The regulatory amendments do not contain any reporting requirements. 8. If additional forms are required, can they be streamlined with existing forms that must be completed for other government information requirements? ☐ ☐ ☑ The regulatory amendments do not require any additional forms. The regulatory amendments do not require any additional forms. The regulatory amendments do not require any additional forms. The regulatory amendments do not require any additional forms. The regulatory amendments do not require any additional forms. III Implementation, compliance and service standards Yes No N/A 1. Has consideration been given to small businesses in remote areas, with special consideration to those that do not have access to high-speed (broadband) Internet? ☐ ☐ ☑ These Regulations do not require small businesses to access high-speed Internet. These Regulations do not require small businesses to access high-speed Internet. These Regulations do not require small businesses to access high-speed Internet. These Regulations do not require small businesses to access high-speed Internet. These Regulations do not require small businesses to access high-speed Internet. 2. If regulatory authorizations (e.g. licences, permits or certifications) are introduced, will service standards addressing timeliness of decision making be developed that are inclusive of complaints about poor service? ☐ ☐ ☑ These Regulations do not create licences, permits, certification or other documents. These Regulations do not create licences, permits, certification or other documents. These Regulations do not create licences, permits, certification or other documents. These Regulations do not create licences, permits, certification or other documents. These Regulations do not create licences, permits, certification or other documents. 3. Is there a clearly identified contact point or help desk for small businesses and other stakeholders? ☑ ☐ ☐ Small businesses and other stakeholders are encouraged to use the Labour Program’s toll-free (1-800) number to report a serious injury, death or refusal to work in relation to this regulatory proposal. The contact information can be found in the first paragraph on the Department’s Web site located at http://www.hrsdc.gc.ca/eng/labour/contact_us/contact_us.shtml. Small businesses and other stakeholders are encouraged to use the Labour Program’s toll-free (1-800) number to report a serious injury, death or refusal to work in relation to this regulatory proposal. The contact information can be found in the first paragraph on the Department’s Web site located at http://www.hrsdc.gc.ca/eng/labour/contact_us/contact_us.shtml. Small businesses and other stakeholders are encouraged to use the Labour Program’s toll-free (1-800) number to report a serious injury, death or refusal to work in relation to this regulatory proposal. The contact information can be found in the first paragraph on the Department’s Web site located at http://www.hrsdc.gc.ca/eng/labour/contact_us/contact_us.shtml. Small businesses and other stakeholders are encouraged to use the Labour Program’s toll-free (1-800) number to report a serious injury, death or refusal to work in relation to this regulatory proposal. The contact information can be found in the first paragraph on the Department’s Web site located at http://www.hrsdc.gc.ca/eng/labour/contact_us/contact_us.shtml. Small businesses and other stakeholders are encouraged to use the Labour Program’s toll-free (1-800) number to report a serious injury, death or refusal to work in relation to this regulatory proposal. The contact information can be found in the first paragraph on the Department’s Web site located at http://www.hrsdc.gc.ca/eng/labour/contact_us/contact_us.shtml. B. Regulatory flexibility analysis and reverse onus This table presents the Regulatory flexibility analysis and reverse onus. IV Regulatory flexibility analysis Yes No N/A 1. Does the RIAS identify at least one flexible option that has lower compliance or administrative costs for small businesses in the small business lens section? Examples of flexible options to minimize costs are as follows: Longer time periods to comply with the requirements, approximately three years longer. ☑ ☐ ☐ A transitional approach has been designed to gradually phase in the implementation of the GHS whereby employers are given time to adapt to the new system. The flexible option allows under certain circumstances for the delayed implementation of training by approximately three years. A transitional approach has been designed to gradually phase in the implementation of the GHS whereby employers are given time to adapt to the new system. The flexible option allows under certain circumstances for the delayed implementation of training by approximately three years. A transitional approach has been designed to gradually phase in the implementation of the GHS whereby employers are given time to adapt to the new system. The flexible option allows under certain circumstances for the delayed implementation of training by approximately three years. A transitional approach has been designed to gradually phase in the implementation of the GHS whereby employers are given time to adapt to the new system. The flexible option allows under certain circumstances for the delayed implementation of training by approximately three years. A transitional approach has been designed to gradually phase in the implementation of the GHS whereby employers are given time to adapt to the new system. The flexible option allows under certain circumstances for the delayed implementation of training by approximately three years. 2. Does the RIAS include, as part of the Regulatory Flexibility Analysis Statement, quantified and monetized compliance and administrative costs for small businesses associated with the initial option assessed, as well as the flexible, lower-cost option? ☑ ☐ ☐ The RIAS includes a Regulatory Flexibility Analysis Statement. The RIAS includes a Regulatory Flexibility Analysis Statement. The RIAS includes a Regulatory Flexibility Analysis Statement. The RIAS includes a Regulatory Flexibility Analysis Statement. The RIAS includes a Regulatory Flexibility Analysis Statement. 3. Does the RIAS include, as part of the Regulatory Flexibility Analysis Statement, a consideration of the risks associated with the flexible option? (Minimizing administrative or compliance costs for small business cannot be at the expense of greater health, security or safety or create environmental risks for Canadians.) ☑ ☐ ☐ 4. Does the RIAS include a summary of feedback provided by small business during consultations? ☑ ☐ ☐ The RIAS includes a statement on the flexible option as well as a summary of the feedback provided by small business during consultations. The RIAS includes a statement on the flexible option as well as a summary of the feedback provided by small business during consultations. The RIAS includes a statement on the flexible option as well as a summary of the feedback provided by small business during consultations. The RIAS includes a statement on the flexible option as well as a summary of the feedback provided by small business during consultations. The RIAS includes a statement on the flexible option as well as a summary of the feedback provided by small business during consultations. V Reverse onus Yes No N/A 1. If the recommended option is not the lower-cost option for small business in terms of administrative or compliance costs, is a reasonable justification provided in the RIAS? ☐ ☐ ☑ The flexible option was recommended. The flexible option was recommended. The flexible option was recommended. The flexible option was recommended. The flexible option was recommended. Footnote a S.C. 1994, c. 41, par. 37(1)(p) Footnote b R.S., c. L-2 Footnote c S.C. 2000, c. 20, s. 20(1) Footnote d S.C. 2000, c. 20, s. 20(2) Footnote e R.S., c. 36 (2nd Supp.) Footnote f S.C. 2013, c. 40, s. 177 Footnote g S.C. 2014, c. 20, s. 140 Footnote h S.C. 2013, c. 40, s. 178 Footnote i S.C. 2000, c. 20, s. 10 Footnote j S.C. 2013, c. 40, s. 198 Footnote 1 SOR/86-304; SOR/94-263, s. 1; SOR/2002-208, s. 1 Footnote 2 SOR/87-184; SOR/95-105, s. 1; SOR/2015-143, s. 1 Footnote 3 SOR/87-612; SOR/94-165, s. 2 Footnote 4 SOR/2010-120 Footnote 5 SOR/2011-87 Footnote 6 All benefit and cost estimates are expressed in present value terms, discounted at 7% per year, in 2014 constant dollars. Footnote 7 Free online courses are available via the Canadian Centre for Occupational Health and Safety. However, the Labour Program assumes for the purposes of the analysis that uptake would be limited, given the preference of many employers and employees for in class training. However, small businesses would have this free option available to them.

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