Detailed list of issues
Review of the
Transportation of Dangerous Goods Act, 1992
Consultation Document 2004
(revised September 30, 2004)
Comments sought from all sources
The purpose of this document is to ask if you have any issues to raise regarding the TDG Act or any comments on the issues raised to date.
Your comments will serve to correct our understanding of an issue, to provide possible solutions or to warn us of possible effects of proposed solutions on other aspects of Canadian life (e.g. economy, trade). We will also accept encouragement and support.
Send your comments by email at: TDGAct@tc.gc.ca
or by mail at: TDG Act Review (ASDE), 9th floor, Tower C, Ottawa, Ontario K1A 0N5.
Decisions to be taken in the Fall 2004
This public discussion phase is expected to continue until early November 2004. As we get closer to that date, discussion will concentrate more and more on proposed solutions. The process is designed for discussions through the Web, emails, normal mail and phone calls. There are some public meetings across Canada. The last public meeting is scheduled for November 9, 2004, in Ottawa.
In the coming Winter months, the Transport Dangerous Goods Directorate of Transport Canada, along with the Federal-Provincial-Territorial TDG Task Force and representatives of various federal departments and agencies, will discuss possible amendments to the TDG Act.
Structure of the Document
The issues are presented in six major categories, represented by capital letters:
A- Security issues (dealing with possible malicious use of dangerous goods),
B- New concepts (new authorities may be needed for these issues),
C- Old concepts (we thought they were already covered),
D- Technical corrections (words, definitions, references),
E- Policy issues (Act reviews must always consider these issues),
F- Outside the scope (issues that pertain to other acts or regulations).
For every issue in this list, for any new issue identified, and for Category A as a whole, we must ask ourselves the following questions:
Must we amend the TDG Act to solve this issue? Should we amend the TDG Act to solve this issue? Are there other means that could solve the issue as efficiently (or even better)?
If the TDG Act is amended, how should it be amended? We are seeking ideas and options. You may even offer comments and options if you have answered “do not modify” to the first question. For example, you may send comments that begin with: “I believe that the TDG Act should not be amended. However, if you do propose to amend it, please consider the following points...”
What are the consequences (good and bad) of amending the Act according to each option? What are the consequences of not amending the Act?
Issues identified as of September 30, 2004
Do we want to deal with TDG Security Issues in the TDG Act, or should they be covered in other acts (e.g., Criminal Code, a new transportation security act, existing modal transportation acts, a national security act outside transport Canada).
A-1. Security plans for dangerous goods that require an ERAP
Soon after the attacks of September 11, 2001, the United States conducted a study to identify which hazardous materials could be used as weapons of a chemical, biological, radiological or nuclear (CBRN) nature. The list produced was almost exactly the list of substances for which Section 7 the TDG Act requires that Emergency Response Assistance Plans (ERAP) be submitted to Transport Canada for pre-approval.
The ERAP requirements only cover safety issues for now. The concept has been around for a long time in Canada; it does not exist in the regulations of the United States.
In Canada, all holders of an approved ERAP have voluntarily put in place security measures and TDG inspectors have visited each one of them to discuss security concerns.
Do we need to make Security Plans compulsory by law? If yes, should that law be the TDG Act? If yes, should we integrate security requirements with safety requirements? In this way, we could continue to have only one ERAP for a given shipment. Should the security requirements apply to more persons that the ERAP requirement? Only a consignor (the person who offers for transport) and an importer are subject to Section 7. Should the new security plan requirements be made applicable to other persons such as carriers? In such cases, the new security plan would have to be separate from the existing ERAP.
The United States are considering written security plans for all dangerous goods but are not requiring prior filing and approval, except in some rare cases.
A-2. Security measures for all consignments of dangerous goods
Should the TDG Act require that persons who offer for transport, handle, transport or import dangerous goods, prepare a written security plan? The plan would not have to be submitted in advance. However, it could be called for (or offered by the persons) as demonstration of due diligence if something did go wrong. It would also be instrumental in the success of issue A-4.
A-3. Immediate reporting of security breaches
Should the TDG Act require the immediate reporting of security breaches? What types of incidents should be included in an eventual list of reportable security breaches?
The reporting could be very similar to the existing reporting requirement, under section 18, for accidental releases. The list of security reporting triggers would be found in regulations.
A-4. Security awareness training
A security plan is not very good if your employees do not know it exists. Should the TDG Act require security awareness training? If yes, should the requirement be restricted only to the persons presently covered by the existing training requirement? With this option, the security training is made a compulsory part of the existing TDG training.
Should the security awareness training requirement be extended to other persons within your organization? For example, maybe the guards at the gate do not need TDG training (they do not offer for transport nor do they handle dangerous goods). However, they may have a crucial role in determining who gets access to your loading docks and to the dangerous goods.
A-5. TDG Security Clearance Certificate
Should the TDG Act require that persons offering for transport, handling or transporting dangerous goods, hold a Security Clearance? Should this requirement cover all dangerous goods or only consignments for which Section 7 requires an ERAP?
Although detailed requirements would be found in regulations, it is already apparent that if such a requirement came to be, it could be satisfied in more than one way. For example, holding a FAST card (already exists) or a Transport Canada Security Clearance (not yet offered to the public) could be one way of satisfying the requirement.
The TDG Act would not cover the details (they would come later, in regulations).
The United States are putting in place similar requirements for any carrier entering their country. The TDG requirement would be structured in a way that at least one (maybe all) of the ways to comply would be considered, by the USA, equivalent to their requirements for HazMat carriers.
A-6. Industry Response to releases that are not accidental
The Canadian industry, as a whole, has very good response capabilities when it comes to accidents involving dangerous goods. For many products, they are the experts. This is very true for substances similar to dangerous goods requiring an ERAP.
As we saw in A-1, CBRN weapons could be made from such substances. In fact, many responses to security events that occurred in Canada since September 2001, have been provided by specialised response teams from industry.
They have no obligation to respond or to provide assistance in such cases. The TDG Act only requires a person to respond if they are in charge, management or control of the dangerous goods and if the event is an accidental release as defined in the TDG Act and Regulations.
We believe that the TDG Act, even if modified, could not make such response efforts compulsory, and we further believe that it would be detrimental to try and create an obligation through the TDG Act, especially given the fact that these events most often have very little to do with transportation.
The question is: How can the Program or the Act support these voluntary efforts? There are some things we can do, such as protection of liability. We are looking for ideas and options.
For each option, should we do this in the TDG Act or elsewhere?
A-7. Application of technology for security purposes
There have been many proposals to apply technological means to thwart the efforts of terrorists or to make dangerous goods less accessible to them. Most of the proposals have not been proposed to us as modifications for the TDG Act. Nevertheless, we must consider their eventual impact on the TDG Act, the TDG Regulations and the TDG Program.
Some proposals are aimed at tracking the dangerous goods, some with passive means (being able to know where a shipment is), some with more and more active means of alerting authority (including being able to disable the means of transport from a distance). The State of California was looking at possible legislation to mandate the installation of devices that would allow to track vehicles and possibly disable the engines in specific circumstances.
Some proposals argue that the removal of placards on vehicles will improve security. Then, having removed placard, the safety program will rely on the security technological means. This is being seriously considered for rail transport in the USA. Rail transportation in North America works best when rules are the same on the whole continent.
Within the TDG Program, the topic of removing placards is touchy with many stakeholders. We have already received comments from the Canadian Association of Fire Chiefs. In the United States, fire chiefs have made similar statements.
What, if anything, should be done in the TDG Act for this issue?
The issue of vandalism straddles security and public safety. The result of vandalism, when performed on means of containment containing (or which may later contain) dangerous goods can certainly be a threat to public safety.
However, contrary to the case of terrorism where the threat to public safety is a result desired by the person performing the act, it is difficult to conclude that vandals perform their actions for the sake of the result or simply for the action itself.
Vandalism (at least to the level considered here) is already covered in the Criminal Code. However, the Criminal Code may require that an officer demonstrate intent by the vandals before mounting a case.
It has been proposed to make vandalism an offence under the TDG Act. At least to the extent that an act of vandalism puts a means of containment in a state of non-compliance with TDG Regulations or where the action causes an accidental release (real or imminent). This would cover actions such as spray painting safety marks or turning valves on tanks.
B. New concepts
Concerns that we believe are not covered in the current TDG Act.
Issue B-1 appears more important because it is the basis for everything else. For example, the relative importance of any other issue would probably change if you were told that the Act does not apply to you. This issue was the one that led to the more drastic changes to the TDG Act in 1992. Subsection 3(2) of the current TDG Act comes from the legislator's intent to make the TDG Act a public safety act. That decision resulted from the test questions similar to the ones listed in issue E-7.
B-1. Application of TDG Act
The legislator's intent to make the application of the TDG Act as inclusive as possible was clear in 1992. The wording of the Act was carefully chosen to create legislation under the criminal law constitutional head of power. Also, the TDG Regulations which existed in 1992 already contained provisions to exclude some private activities on private properties, implying that without this exclusion, the requirements would have applied.
We still receive requests to exclude a field of activities or a sector of industry from the application of the TDG Act. Because of the nature of the Act, these are denied. Instead, we work with applicants to document the manner in which they intend to provide an equivalent level of safety and we then treat their request as a permit application. There are cases where the threat to public safety is so low that we can exclude the application of some requirements. This is normally done in the TDG Regulations.
In conclusion, it is unlikely that this review will lead to a decrease in the field of application of the TDG Act.
Can it lead to an increase? In subsection 3(2), there is a reference to ships and aircrafts registered in Canada. The Act applies to any Canadian registered ship or aircraft, even if it is not in Canada. This reference comes from the United Nations Convention on the Law of the Sea where ships may be exempted from territorial laws of a State as long as the ship is engaged in what is known as innocent passage1. Of course, if the ship docks or is involved in activities that directly affect the sovereignty of the visited country, then the ship may be subject to the laws of that country.
Thus, when dangerous goods are loaded into or unloaded from a ship or an aircraft in Canada, the activity may be subject to the TDG Act. However, it is not clear, because of the conventions and associated traditions, whether the TDG Act applies to any dangerous goods that are transported through Canadian maritime economic zone or air space, if the goods are not loaded, unloaded or handled in Canada.
Since the adoption of the TDG Act in 1992, many changes in world affairs lead us to believe that there is a need for an explicit statement in the TDG Act to clarify its authority over dangerous goods transported through Canadian waters and Canadian airspace.
One scenario to which such an authority would apply is the possible transport of plutonium between Japan and Europe, either by ship through the North-West passage, or by air through Canadian airspace.
Also, see B-5 and B-6 for examples where the field of application would need to be extended.
In the context of TDG, estoppels result from the application of a principle of law by which an authority may waive prosecution despite an apparent infraction. It exists outside the framework of any specific piece of legislation. For example, when a police officer gives you a warning to get a headlight fixed on your car, you are benefiting from the principle of the estoppel as the police officer agrees to not give you a ticket if you proceed in a reasonable fashion to repair the headlight.
Normally, estoppels are to be used in situations where the risks associated with the infraction are sufficiently small that, with some conditions, continuing transport for a short time does not increase the threat to public safety. But they can be used in more risky situations where all other procedures are even more risky. An example would be to allow the transport of a defective rail car because it should be more of a risk to try to repair it in the middle of town. Of course, in these cases, conditions form part of the agreement.
Of course, if there is an accident, the estoppel does not absolve anyone from being in non-compliance at the time of the accident.
Over the last decade, estoppels have been used in the transportation of dangerous goods to reduce risk, but not to the level of safety of full compliance, something for which there is no specific authority in the TDG Act.
Does that mean that estoppels are illegal? Not necessarily. However, given that the TDG Act does not authorise them, the person using the estoppel does not benefit from an explicit protection. Neither does the person who issues them...
B-3. Notices of defect (also known as Recalls)
The notices described in subsection 9(2) of the TDG Act cover only defective construction and apply only to manufacturers or importers of standardized means of containment. It is proposed to extend the application of subsection 9(2) to cover defective repairs, testing, etc., and to persons who distribute the means of containment.
Presently, the authority allows Transport Canada to direct someone to issue a notice. What if the person refuses? Does Transport Canada have the authority to proceed directly and, for example, forbid the distribution and use of means of containment where there are reasonable grounds to believe that a recall should have been necessary.
The same principles could apply to persons who design, test, recondition, recycle, fill, etc. as long as the means of containment were still intended to be used for transporting dangerous goods.
Please note that a recall need not require the physical return of the means of containment.
B-4. Emergency Response Assistance Network
The principle here is the same as in A-6. In general, Canadian industry goes well beyond the legal requirements. They provide assistance to public responders, even in cases that do not involve a company's own dangerous goods (e.g. competitor's dangerous goods).
However, this puts them at a global disadvantage against countries without such programs. This disadvantage may prompt the reduction of the added benefits that Canadians get from the industry programs. How can industry be encouraged to maintain these programs?
One way is to provide liability protection similar to section 20 of the TDG Act. Should we do more, such as mandate response times? Provide for direct activation of response plans rather than the indirect activation used today?
B-5. People who screen persons or means of containment
There are people who are responsible for screening persons or means of containment to ensure that they are not carrying dangerous goods or are not loaded with dangerous goods, or that they are in compliance with the requirements of the TDG Act. More and more, screening personnel work for organizations that do not offer for transport, handle, transport or import dangerous goods. The Act does not apply to them nor do they have any power under the Act.
There is a need to ensure that screening personnel are trained to recognize dangerous goods and to understand what requirements apply to the goods, to the persons or to the means of containment. The responsibility for this training would, under the traditional approach of the TDG Act, rest with the employer of these persons.
There may also be a need to provide some duties to the screening personnel, such as the obligation to report that a person or means of containment is not in compliance with the TDG Regulations. If the screening is done by the carrier, then there is no problem as the carrier controls who or what is transported and under what conditions. In this review, we must deal with the situation where the screening personnel are neither employees nor representatives of a carrier, such as Customs officers and screening staff at airports.
Is it possible to deal with this problem without modifying the TDG Act? Yes. One way is to use the act as is: the TDG Act already applies to the air carrier. Regardless of who allows dangerous goods on board, the carrier is already responsible for compliance. Let the carrier ensure that the screening process is adequate. Another way is to ensure that the desired actions (e.g., reporting the presence of dangerous goods to the carrier) is required through another means than the TDG Act. It could be through a service contract or through regulations taken under another act (for example, under the Act that establishes the security screening process). There may be other ways.
B-6. Readily available documents
The TDG Act provides sufficient authority to regulate how shipping documents are kept and made available by persons who handle, offer for transport or transport the dangerous goods described in the document.
Sometimes, copies of the shipping documents are kept in offices and end up being used in case of emergency. In the Technical Instructions for the Safe Transport of Dangerous Goods by Air published by the International Civil Aviation Organization, there is a requirement to keep a copy on the ground while the goods are transported so that it “must be readily accessible to the aerodromes of last departure and next arrival point, until after the flight.”
It is unclear whether the TDG Act applies to the persons retaining the copies, especially if third parties are involved (as in B-5). It is unclear if the authority to inspect can fully apply to persons who hold documents on behalf of regulated persons, but who are not themselves persons who handle, offer for transport or transport dangerous goods. Sometimes, especially in multi-modal situations, an electronic version of the document is sent directly to a subsequent carrier while the paper document remains with the dangerous goods. The electronic document goes through third parties like agents and brokers who are not handling, offering for transport or transporting.
Are agents and brokers part of the chain responsible for producing or retaining copies of shipping documents?
Should the Act make the documents available to employees? The Act already makes it compulsory to have a shipping document accompany the goods. The nature of the query is more of an Occupational Safety and Health issue (e.g., WHMIS), a domain not covered by the TDG Act (and already covered by OSH legislation).
As in B-5, it is possible to solve this issue without modifying the TDG Act?
What about Canada Post? Canada Post has its own requirements dealing with dangerous goods. They are based on recommendations published by the International Postal Union.
B-7. Application of requirements in standards for means of containment
The standards under which means of containment are designed, manufactured, repaired, reconditioned, tested, filled, etc., state that certain persons have to register with Transport Canada.
However, the TDG Act does not apply to many of these persons in a manner that could make the standard requirements applicable by law. The standard may specify a quality control system but the requirements of such a system cannot be enforced through the TDG Act at present.
There is a link between issues B-7 and B-3. However, they are distinct issues.
Issue B-13 is concerned with the authority to require registration and the conditions related to maintaining the registration status e.g., maintain conditions necessary for the observance of a quality assurance program. Issue B-7 deals with the requirement to comply with conditions listed in the standard.
B-8. “Non-Dangerous Goods” carriers
There are many carriers who declare themselves “non-dangerous goods” carriers.
Air carriers must explicitly declare in their Operations Manual, approved by Transport Canada, whether they will carry dangerous goods or whether they are “non-dangerous goods” carriers. In other modes, carriers do not have to advise Transport Canada; however, they may have to advise others, e.g. their insurance company.
The TDG Act does apply to these carriers whenever they transport dangerous goods, regardless of their “non dangerous goods” status.
Should the TDG Act require these carriers to ensure that their staff is trained to recognize the presence of dangerous goods or security problems associated with dangerous goods? There may be links to issues A-3, A-4, and B-5.
B-9. Operating conditions
Should the TDG Act provide authority to regulate vehicles carrying dangerous goods for such things as special speed limits or more frequent mechanical inspections? Should we regulate other conditions under which dangerous goods should or should not be transported, or routes to be used?
One possible area where the discussion could take us is whether the TDG Act should provide authority to forbid dangerous goods from being transported under certain weather conditions.
The Web site provides examples of accidents where weather conditions may have played a role in increasing the threat to public safety.
B-10. Undue threat to public safety
There are cases where a TDG regulated activity is done in a manner that creates undue risk to public safety. For example, if a means of containment is involved in an accident and there is visible damage to the means of containment, yet one knowingly continues to transport the dangerous goods in that means of containment, it may create a threat to public safety that is greater than that implied by “using a means of containment that is not in standard.” In such cases, we can proceed by indictment (section 33). However, if the damage is not to a part of the means of containment regulated by TDG, such as the tires on a road vehicle, there may be a threat to public safety not recognized in the TDG legislation. There are cases where the threat can be significant.
The Criminal Code can be used to cover some of these cases; unfortunately, we may have to wait for a death or extensive pollution before being able to proceed. The idea is to ensure that dangerous goods are transported safely at all times, including after an accident to the means of transport.
Should the TDG Act specify that a means of containment or a vehicle involved in a reportable accident cannot be used to transport dangerous goods unless it has been inspected by the appropriate authority and declared to meet all standards and requirements? Should the TDG Act have some general provision that creates an offence for the handling, offering for transport or transportation of dangerous goods in a manner that creates undue threat to public safety?
B-11. Examining means of containment
Means of containment sometimes fail to the extent that it is unreasonable to repair them in a manner that would put them back into compliance. It is proposed that TDG Inspectors be authorized to request, for the purpose of examination, all or a portion of the means of containment that have failed, especially those that have failed during normal conditions of transport (including cases where there were no infractions). The purpose of the examination would be to discover how the means of containment failed. The examination may include, for example, sectioning the means of containment for analysis.
What about the possibility of examining m.o.c. that have survived an accident?
B-12. Taking samples of Means of Containment
TDG Inspectors should have the authority to take samples of means of containment that are used (or announced as being suitable) for the transportation of dangerous goods. This authority would allow the enforcement of existing sections of the Act that deal with means of containment and would be suitable for any new authority stemming from issue B-3, B-7, B-11 and C-1.
B-13. Authority to require registration and conduct audits linked to registration
In addition to compliance of the actual means of containment with requirements found in the standard (issue B7), the recognition of means of containment as being in standard may also depend on factors such as the design and the construction being done by companies which are registered with Transport Canada for these purposes (as stated in the standards). To verify the B7 question, one could inspect the actual means of containment, as is proposed in B-12.
Issue B-13 deals more with the people and processes that are responsible for the safety of means of containment but are not themselves means of containment (one can't inspect the people). Many people and processes responsible for designing, testing, manufacturing, reconditioning, etc., are registered with Transport Canada.
Registration conditions often require observance of a recognised Quality Assurance Program (e.g., ISO 9001); Transport Canada conducts audits to ensure that the appropriate Quality Assurance Program is followed. An audit is more of a paper-trail inspection than an inspection of actual materials (as in B-12) or of actual work practices (which is the object of the Quality Assurance Program itself).
Clearly, the regulator has been acting as if the concept is already covered. However, we cannot find any evidence that the topic was discussed in 1990-92; had we found such evidence, then the issue might belong to category C.
According to the latest legal advice we have received, explicit wording would be needed in the TDG Act to clarify this authority. Here are the authorities that would need to be described in the Act:
Authority to require “Registration with Transport Canada” for appropriate persons, processes and means of containment; conditions would be found in TDG Regulations and the standards to which this requirements applies would be named in regulations. The authority would include conditions to maintain registration status, possible refusal or revocation of registration, and an appeal process.
Authority for Transport Canada to conduct audits (and inspections?) in order to satisfy itself that the conditions of registration are maintained.
Authority to forbid (or impose strict conditions on) the distribution and use of means of containment which are known to have been manufactured, tested, etc., in non-compliance with the conditions attached to registration.
B-14. Authority to approve Industry-Specific Regulations or codes
The TDG Act has the authority to impose standards and the authority to allow (as alternative) other “regulatory” texts, such as the IMDG Code. Could the Act be modified to accept compliance with an industry-wide Code of Practice? Presently, this is done as a permit which must then be issued to every single member of a sector of the industry (with all the associated technical and administrative problems).
B-15. Registration of persons who offer for transport, handle, transport or import d. g.
Should the TDG Act require the registration of all persons (or some) who offer for transport, handle, transport or import dangerous goods? In the old act (before 1992), there was an obligation to register for manufacturers of dangerous goods. It was knowingly removed from the TDG Act of 1992.
Proponents of this issue say that a registration system could enhance public safety by allowing a better use of inspection resources and could even help with security issues.
B-16. ERAP: who can offer to “cover” a consignment (was D-2)
Section 7 of the TDG Act requires the person who offers for transport or imports to have an Emergency Response Assistance Plan (ERAP). Some cases exist where things could differ.
Here is one example: A big company sends a rail tank car of a compressed gas to a costumer. The consignment is such that an ERAP is required. The company has an approved ERAP.
The costumer returns the rail car which still contains some gas. An ERAP is required for the return trip. The costumer does not have his own plan and does not have the expertise to assist in the response should there be an accident; i.e., the customer does not have an ERAP. The big company offers to cover the return trip under its ERAP but the Act does not allow it. The wording in the Act was chosen because the last person who sees the rail car before it leaves on its trip (the customer) is the only person able to determine if any unsafe situation should be corrected before the rail car is released to the carrier. He is the person who offers for transport.
The big company could, by contract for example, provide the costumer with full access to its own resources and cover the return trip under its own ERAP. This is allowed by the TDG Act. However many companies hesitate to do this. One reason is that customers typically do business with many distributors and one company's ERAP numbers end up being used on a competitor's product or used without the ERAP holder's knowledge (many plans require the ERAP holder to know what consignments are in transport at all times). Also, because of the voluntary agreement described in A-6 and B-4, giving access to your ERAP gives the costumer access to an entire network of ERAP resources that are usually reserved for well-trained members of the association that created the network. The customer is not trained in using the network.
Should the Act allow persons other than the person who offers to transport, to “cover” a consignment of dangerous goods with their own ERAP? Whys is it a good idea? Why is it a bad idea?
C. Concepts which are thought to be covered in the current TDG Act
In this section, we are not seeking new authorities but rather we want to fix some of the wording so that the Act can be applied in the intended manner. This is based on documentary evidence, for example “Behind the Words”, an interpretation document prepared from Parliamentary documents used for Committee readings in the House and in the Senate.
C-1. Standardized means of containment
Because of the manner in which the phrase “standardized means of containment” is used throughout the Act, there remain situations where a means of containment used to transport dangerous goods could present a threat to public safety and where there is doubt as to the applicability of the TDG Act.
For example, imagine someone knowingly or unknowingly distributing, as standardized, a non-standardized means of containment. As soon as we prove that the means of containment is not standardized, do we lose the authority to order a recall? Does an inspector instantly lose the authority to inspect under sub-paragraph 15(a)(ii) the means of containment suspected of being non-standard? This is not what the legislator wanted.
Also, do we need an explicit prohibition in the TDG Act to prevent the use of a means of containment that is not in compliance with the standards that are supposed to apply to it? Do we need to prohibit filling a tank which is not in compliance? Does filling a tank beyond the quantity limit set out in the standard render the tank non-compliant?
C-2. Persons offering for transport to themselves
The wording of the Act appears to treat the person who offers for transport and the person who transports as two separate persons. Interpretations in 1992 were that the TDG Act would clearly apply in cases where the two are the same individual. Policy documents prepared in early 1992 confirm that this was the original intent of the legislator.
However, it appears that interpretation may not be as solid as first thought. Maybe a simple sentence in the definitions (or elsewhere) could be sufficient.
C-3. Safety marks
Throughout the Act, we use this term to speak of marks intended to indicate the presence of a danger and of marks intended to show that a means of containment meets a standard.
Clearly, there are two categories of marks. We should find two short distinct names for them, other than “dangerous goods safety marks” and “certification safety marks”. What about danger marks and certification marks?
When the TDG Act gave the importer the same duties as the person offering for transport, it was thought that there would always be a person in Canada who would ensure that the dangerous goods are transported in compliance with the requirements.
There must always be at least one person in Canada who is legally responsible of the goods. This is the person we would turn to should there be a problem.
The current Act does not mean to include agents or brokers in the definition of “importer”. Is it clear enough in the wording of the Act?
C-5. Documents that an inspector may request or see
We thought we had everything covered (e.g. computer files). However, technology moves even faster than we thought. Also, we have missed certain older formats that are still in use (e.g. microfilms). A change in definition may be sufficient (which would make this a category D issue) but be careful with the link to issue B-6.
It is difficult to know which inspector is going to request what document (especially for inter-provincial traffic). The TDG Act authorizes any inspector to request any document that the Act allows him or her to see. It would be difficult to change that in a workable way. One analogy is a case where a police officer can ask to see your driver's license even though you've already shown it to someone else that day.
C-6. Privileged information
Information communicated to CANUTEC is privileged by virtue of paragraph 24(1)(b). The legislator wanted to make sure that persons facing a threat to public safety posed by dangerous goods would feel free to contact CANUTEC and ask any question without worrying about how their question would be interpreted after the fact.
Such conversations and the information they contain are privileged. However, we use that information to prepare internal documents. Are the internal documents (or the part containing the privileged information) privileged information?
C-7. TDG Inspector authority
A TDG inspector is asked to inspect (for compliance with the Act and Regulations) and to verify (for compliance with a quality assurance program, for example). The TDG Act does not provide authority for the latter.
What else should be covered (if anything)?
C-8. Federal-Provincial-Territorial discrepancies in legislation
We claim that the Act contains sufficient authority (e.g. section 4, Agreement with Provinces) to resolve any discrepancy in legislation including wording and application of the wording.
In general, all provinces and territories have adopted, in their own TDG Regulations, wording that is identical or equivalent to the wording of the federal TDG Regulations.
Some provinces have added requirements that are unique to their needs (e.g. Quebec and British Columbia have requirements specific to tunnels.) These additions do not cause any conflicts.
However, some comments suggest that there may be cases where words in a provincial regulation are not interpreted in the same manner as the same words in the federal legislation. This is a discrepancy in the application of the wording. These cases are rare; however they can be very annoying (see issue C-6).
Can the TDG Act do more to enhance agreement among levels of government?
Why are there some documents (e.g., permits) issued by one level of government not automatically accepted by another? The TDG Act only allows permits with respect to the regulations taken under its authority. Provincial TDG Regulations, although they contain the same requirements, are taken under different statutes.
If something is considered safe by one government, should it not be considered safe by all? Conditions may be different from one place to another. A classical example in Canada is the right turn on a red light. Allowed in many areas, banned in some. Even where allowed in general, there are some intersections where it is explicitly forbidden.
C-9. Using marks and documents as proof of content
Section 42 of the TDG Act allows the use of safety marks on a means of containment or of prescribed documents accompanying the means of containment as proof of content. For example, if placards are displayed on a truck and safety labels are stuck on the boxes carried on the truck, then one is allowed to conclude that the truck is carrying boxes of dangerous goods.
However, Section 42 uses the word “prescribed” and this may cause problems. Example:
- A person is accused of using a shipping document that is not in compliance.
- At the trial, defence claims that there cannot be an infraction because the truck has not been shown to carry dangerous goods, therefore the Act does not apply.
- Prosecution offers the shipping document as evidence, as per Section 42.
- Defence argues that the shipping document can only be used if it is a prescribed document (i.e., it complies with the Regulations). If it does, then there is no infraction, if it does not, then it cannot be used as proof of content, therefore the infraction is not proved.
- Not being able to use the document as proof, the prosecution cannot prove that the truck contained dangerous goods unless samples had been taken at the scene (or another form of proof existed).
Obviously, this was not the intent of the legislator. The intent of section 42 was to allow prosecutions to proceed without going through the dangerous action of collecting a sample.
Of course, one could simply resume the former (and still legal) practice of seizing a vehicle or take samples, in all cases of infractions where the presence of dangerous goods could be an issue.
Also, it may be sufficient to fix the wording of Section 42 (making this issue one of category D)
C-10. Misleading safety marks (section 6 of the TDG Act) (was F-5)
Because of court decisions in three provinces (dealing with TDG Regulations under provincial legislation) it appears that the “grey area” built in by the legislator in 1992 has almost disappeared.
It is clear that if the regulations require a placard to be displayed (e.g., you have over 500 kg of propane), then you must display it. It is clear that if you have no dangerous goods (e.g., 0 kg of propane), then displaying a safety mark would be misleading.
In 1992, when Section 6 was being discussed in Parliament, it was clear that members wanted a grey area where a person could still have a placard even though it was not compulsory (e.g., 450 kg of propane), as long as it was not misleading.
The main purpose of the placard is to alert emergency responders that dangerous goods are present in a way (quantity or concentration) that may require them to alter their response. It was thought at the time that displaying a placard for propane when carrying 450 kg of propane was not misleading (the danger is present).
Should the TDG Act be modified to create a “comfort zone” where placards may be used even though they are not compulsory? For example, an explicit statement saying that 80% of the threshold is acceptable (e.g., at 400 kg you may display a placard, at 500 kg you must).
Or will that simply lead to include a question at the next review to cover persons who are at 79%?
D. Fixing the wording
Some portions of the Act are not as easy to interpret because sentences are complex, the words are subtly different between the English and French versions or we use defined words in a way that does not quite fit the definition. Sometimes words have to be changed because we refer to another Act which has changed name.
We have received many requests to examine a word. There may be hundreds of words to be examined during this review. We believe that most will remain unchanged because a similar examination was done when the TDG Act was written in 1992.
We do not list all the words to be examined. Below are examples:
The word “permit” is misleading in that no one requires a permit to comply with the TDG Act. The TDG permit is a permission to deviate from the Act. In general, it is false for anyone to state that they cannot offer for transport or transport their product unless they are granted a permit because the dangerous goods can be offered for transport and transported in compliance with the TDG Regulations. There is a suggestion that the term “permit for equivalent level of safety” be changed, to “certificate of non-compliance” or some other similar term.
If we grant a permit under the federal TDG Act, does provincial law still apply (and vice-versa)? Should there be a permit application fee?
There used to be a time limit for processing a permit. Will that come back? Before the TDG Act became a public safety act, the time limit was such that if Transport Canada failed to refuse a permit before the time limit, then it would be automatically granted. This is not a desired outcome when dealing with public safety.
Does a permit automatically become a regulation after some time? Some permits are of general application (i.e., anyone who can operate under the conditions of the permit may do so, and the conditions are applicable everywhere). In the case of these permits, every major revision of the Regulations includes a revision of the permits to see if they can become part of the regulations (i.e., requirements of general application). If yes, the permit disappears (it is no longer needed, the regulations allow the practice). If no, the situation is more complex. In either case, the TDG Act allows flexibility (the Act neither renews nor revokes permits by time or regulatory review).
Should permit information be readily available? You permit web site is not always user-friendly. The TDG Act does not hold back the information. The sheer number of permits makes the web site difficult to manage and the TDG Act cannot fix that.
D-2. All words defined in section 2 of the Act (and any word used in the Act)
We have received requests to examine over one hundred words. We will not list them here. If the proposed change leads to a new meaning, the issue is listed in the appropriate category (B, C or E). For example, C-7 began as a request for a redefinition of “inspection.”
E. Automatic issues
Every time a legislative text is reviewed some issues are automatically raised: is this legislation still needed? are the objectives still valid? does it interfere with other programs? are there unwanted overlaps? does it support government goals?
We do not know in advance what issues, if any, will lead to changes in legislation requiring Cabinet approval. Notwithstanding, as a policy, Transport Canada usually applies tests similar to the ones listed below, to its initiatives.
In a Memorandum to Cabinet, we must address issues such as:
E-1. Impact on the environment
The TDG Program contributes to the Government's objectives regarding the environment. In particular, we must ensure that we do not create any conflicts with legislation intended to protect the environment, for example the Canadian Environmental Protection Act (CEPA).
In addition, Transport Canada has a policy on protecting the environment. Any proposal submitted for the approval of the Minister must meet the requirements of Transport Canada's Strategic Environmental Assessment (SEA). Although we believe that the TDG Act has no negative impact on the environment, since no one is required to routinely conduct activities that may hurt the environment, we must still look at any proposed changes in light of the SEA.
E-2. Impact on trade and competitiveness
Safety costs money. In a public safety program applied to transportation, this is a delicate topic as the cost is mostly borne by one group, the industry, for the benefit of another group, the public.
Wherever possible, the TDG Act provides a high level of public safety for a relatively low marginal cost in equipment, devices and upgrades. In addition, flexibility is built into the requirements so that the regulated persons are normally presented with various ways of delivering an equivalent level of public safety while offering for transport or transporting dangerous goods.
We have to ensure that these principles continue to serve us whenever we modify the TDG Act.
Can the Act provide relief to special cases, such as transport to remote communities? The Act does allow some exemptions by regulations. And exemptions already exist that serve this purpose. However, in general, the Act promotes safety. If something is deemed dangerous for transport, then it does not suddenly become safe because the community is remote.
E-3. Federal-Provincial-Territorial considerations
Any modification to the TDG Act must continue to take into account jurisdictional divisions of power between the levels of government. In addition, we must continue to ensure that the TDG Act allows the federal government to discharge its duties and allows the provinces and territories to discharge theirs.
Finally, given that the TDG Program has led to a very harmonized set of TDG requirements at all levels, we must ensure that any change to the Act does not harm the level of harmonization.
Could the TDG Act create a federal-provincial committee that would produce publicly available interpretations that would be binding on all parties (i.e., inspectors)? The Act allows agreements between the federal and provincial governments. We already have an inspector's manual that provides guidance to all TDG inspectors appointed under the TDG Act (but not to inspectors enforcing a provincial TDG Regulation). In the end, though, the power to interpret our act belongs to the courts. In practice, the Federal-Provincial-Territorial Task Force on TDG already discusses the issue.
E-4. International and inter-program harmonization and reciprocity
We have to ensure that any proposed modification does not harm trade efficiency or set up trade barriers unless there is a strong public-safety reason to do so. We have to ensure that any proposed modification does not interfere with Canada's obligation, under multilateral agreements, on the environment or trade, for example.
Because the TDG Program is harmonized at the global level and integrated with other domestic and international programs, we expect that any proposed modification that would interfere with this concept would also interfere with the TDG Program. We will have to explicitly verify the impact of each proposed modification.
E-5. Links with other programs
We will have to analyze the possible impact of any modification to the TDG Act on other programs within Transport Canada, at the federal level (the Criminal Code) and at the provincial level. This is where one would discuss overlaps and dual coverage which means two Acts covering the same activity but from different points of view.
It is generally accepted that the TDG Act does not pre-empt other Acts and that other Acts cannot pre-empt the TDG Act. Therefore, it may very well be that more than one Act applies simultaneously to the same activity.
As a minimum, we must not create conflicts in law, that is situations where the only choice that a person has to comply with one Act is to commit an infraction against another. We must also look at situations where compliance is still possible but very difficult.
E-6. Link with other government priorities
Other government policies are usually announced in the Speech of the Throne. The policies that will apply to proposed modifications to the TDG Act will be known as we get closer to Fall 2004. As a minimum, the priorities listed above (E-1 to E-5) will apply.
E-7. Relevance of the program
This issue is subsumed in the E issues, especially E-6. However, in 2004, the Government explicitly identified six questions as a test of program relevance. They are:
- Does the program continue to serve the public interest?
- Is this a legitimate and necessary role of government?
- Is the current role of the federal government appropriate?
- Are there parts of the program that could be transferred to other sectors or to other levels of government?
- Can the program be made more efficient?
- Is the program affordable?
E-8. Does the TDG Act allow for Smart Regulations?
We do not know if this will apply to a proposal to modify the TDG Act. However, we agree with the general principles of “smart regulations.” See a document titled “Smart Regulations in Transport Canada” at this web site:
F. Issues outside the scope of review
We have received comments which we do not believe are issues for the review of the TDG Act. In some cases, it is because the issue deals with the Regulations rather than the Act. In such cases, the issue was passed on to the appropriate Branch in the TDG Directorate.
Other issues are covered by other federal or provincial legislation in Canada while others are not directly aimed at the promotion of public safety.
Of course, that is based on our opinion. We have listed the issues below in case our opinion needs to be adjusted. If you feel that we have misunderstood the issue and that it should not be set aside, please let us know. So far, three issues have moved from this category to another, more active category.
F-1. Consolidated implementation guideline for “Clear Language” TDG Regulations.
The comment deals with the manner in which the TDG Regulations should come into force. An issue with regulations or enforcement.
F-2. Notice requirement for amendments to Regulations to be more detailed in the Act.
In the TDG Act, only section 30 addresses this issue. However, the manner in which amendments to Regulations can be presented is already subject to other legislation and government policies which establish detailed procedures.
F-3. Harmonization with USA
The Act already provides sufficient authority to recognize international and other countries' requirements where it is advisable to do so, usually as alternative ways of complying. However, the topic can still be discussed under issue E-4.
Should the provisions of the Contraventions Act be extended to provide for ticketing of TDG offences under the TDG Act? This is already possible. Whether it should be done is an enforcement issue.
Is there not a maximum number of tickets that can be issued in regard to the same offence? The TDG Act allows the recognition of continuing offence (each time the same offence is detected, it can be treated as a separate occurrence if on a different day). However, a court would have to be convinced that the accused knew of the problem, had a chance to fix it and failed to fix it. It is possible that this interpretation (of a daily limit) does not apply to provincial tickets. Different jurisdiction, different interpretation rules.
F-5. Road Tunnels.
Two provinces, Quebec and British Columbia, already have requirements dealing with dangerous goods in road tunnels. There does not appear to be a need for the TDG Act to be involved.
(646664 – 646667)
 Innocent passage: The right of all ships to engage in continuous and expeditious surface passage through the territorial sea and archipelagic waters of foreign coastal states in a manner not prejudicial to its peace, good order, or security. Passage includes stopping and anchoring, but only if incidental to ordinary navigation or necessary by force majeure or distress, or for the purpose of rendering assistance to persons, ships, or aircraft in danger or distress.
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