Consultation document on proposed risk management for products containing PBDEs: chapter 4


4.1 Regulatory Framework

To achieve the risk management objective, the Government of Canada is proposing to prohibit the manufacture, import, sale and offer for sale of any product containing tetraBDE, pentaBDE, hexaBDE, heptaBDE, octaBDE, nonaBDE or decaBDE, other than mixtures, polymers and resins.

As part of its regulatory reform, the Government of Canada has introduced the “One-for-One” Rule and the Small Business Lens. In moving forward with the proposed regulations, Environment Canada will apply these two programs to ensure that administrative burden is reduced where possible and that small businesses are taken into account with respect to any administrative and compliance challenges.

“One-for-One” RuleFootnote 13

The “One-for-One” Rule is aimed at reducing administrative burden on business and limiting growth in the number of federal regulations. It will require regulators to remove a regulation each time they introduce a new regulation that imposes administrative burden; and when a new or amended regulation increases administrative burden on business, the Government will also offset, from existing regulations, an equal amount of administrative burden costs for business.

The “One-for-One” Rule is intended to be implemented in a manner that does not compromise environmental protection objectives. The Rule is one of several requirements that must be considered when deciding on the most appropriate Risk Management (RM) instrument for a given situation. If the chosen RM instrument is a regulation, the “One-for-One” Rule may apply.

Small Business Lens

The purpose of introducing a small business lens is to ensure that the specific needs of small business are considered and that the least burdensome but most effective approach to addressing these needs is identified. Small businesses are defined as any business, including its affiliates, that has fewer than 100 employees or between $30 000 and $5 million in annual gross revenues.

4.2 Elements of the Proposed Regulations

4.2.1 Application

The regulations would apply to the manufacture, import, sale and offer for sale of any product containing a PBDE (tetraBDE, pentaBDE, hexaBDE, heptaBDE, octaBDE, nonaBDE and decaBDE).

A threshold of 0.1% by weight in homogeneous material is being considered for DecaBDE commercial mixtures (which are not covered under the Stockholm Convention but which include octaBDE, nonaBDE and decaBDE). This threshold would be similar to that of other jurisdictions, namely EU RoHS in electrical and electronic equipment, European Union Directive 2003/11/EC, DecaBDE regulations in Norway, and regulations in several U.S. states (see Annex A). This proposed threshold would also allow for unintentional uses of DecaBDE in products, such as when contained in recycled material that has been chemically or physically modified (e.g., remoulded, reformulated or reconstituted).

Environment Canada does not intend to propose a specific threshold for tetraBDE, pentaBDE, hexaBDE and heptaBDE in products, as Canada has already ratified and implemented amendments to the Stockholm Convention regulating these substances, and a threshold was not relied upon for that implementation (see Annex A, section 5).

4.2.2 Permitted Activities

The manufacture, import, use and sale of replacement parts for products containing DecaBDE would be permitted for products manufactured or imported prior to the coming into force of the proposed regulations. 

4.2.3 Exemptions

At this time, there are no anticipated exemptions for products and product components containing PBDEs, but Environment Canada would appreciate to receive comments on that subject. If, during this consultation process, products are identified for which there are no technically and economically viable alternatives, consideration will be given to their exemptions.

4.2.4 Labelling

Labels indicating that a product contains PBDEs would not be required. However, it is proposed that any person that manufactures, imports, sells or offers for sale products that are subject to the proposed regulations would have to indicate on the container in which the product is to be sold the date on which the product was manufactured or a manufacturing date code (e.g., a batch code). When a code is used, the person shall provide an explanation of it to the Minister when requested to do so.

4.2.5 Testing and Accreditation Requirements

It is proposed that provisions on the use of accredited laboratory and test methods will be included in the proposed regulations. Currently, the test method indicated below is being proposed, and it is requested that stakeholders identify additional test methods or alternate approaches that should be considered. Environment Canada welcomes any suggestions on this subject.

The quantity of PBDE found in a product would be determined using the following standard:

  • IEC 62321 Test Standard, which includes a PBDEs test method (for EEE polymers)

The purpose of including test methods in the proposed regulations will be to indicate to the regulated community the test methods that would be used by Environment Canada to verify compliance with the regulations.

4.2.6 Reporting Requirements

There are no anticipated reporting requirements.

4.2.7 Record Keeping

It is proposed that there be record-keeping provisions included in the proposed regulations, to achieve the following:

  • specify what the Enforcement Services of Environment Canada may require from the regulated companies;
  • define which records are most relevant for the regulated companies to maintain; and
  • ensure that, should an investigation be necessary, Environment Canada's enforcement officers will have access to the necessary records within their jurisdiction.

Under the proposed regulations, regulatees would be required to retain all relevant records for a period of at least five years beginning on the date of their creation, and to make the records available to the Minister of Environment or an enforcement officer upon request.

In order to reduce administrative burden, the information required under the proposed record-keeping requirements would be information already collected under other existing regulations.

4.2.8 Coming into Force

Comments on the proposed coming-into-force date are welcomed, and will assist with a suitable transition time away from PBDEs to a suitable alternative.

4.2.9 Administration and Compliance Verification

Regulated companies would be subject to enforcement and compliance requirements and penalties as specified under CEPA 1999.

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