FEDERAL REG

SOR/2016-95: Regulations Amending the Transportation of Dangerous Goods Regulations (Reporting Requirements and International Restrictions on Lithium Batteries)

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

Registered
May 13, 2016


REGULATORY IMPACT ANALYSIS STATEMENT (This statement is not part of the Regulations.) Issues The Transportation of Dangerous Goods Act, 1992 (the TDG Act) provides that any person who has the charge, management or control of a means of containment shall report any release or anticipated release (e.g. spills, accidents), loss or theft of dangerous goods that is or could be in excess of a quantity ... (Click for more)


House

1st Reading 2nd Reading 3rd Reading

Senate

1st Reading 2nd Reading 3rd Reading

Published on May 13, 2016

Bill Summary

SOR/2016-95: Regulations Amending the Transportation of Dangerous Goods Regulations (Reporting Requirements and International Restrictions on Lithium Batteries)

REGULATORY IMPACT ANALYSIS STATEMENT (This statement is not part of the Regulations.) Issues The Transportation of Dangerous Goods Act, 1992 (the TDG Act) provides that any person who has the charge, management or control of a means of containment shall report any release or anticipated release (e.g. spills, accidents), loss or theft of dangerous goods that is or could be in excess of a quantity or concentration specified by regulation from the means of containment if it endangers, or could endanger, public safety. The TDG Act also provides for the development of regulations that prescribe who will receive reports, the manner of making the reports, the information to be included and the circumstances in which such reports are not required. Prior to 2009, security issues were not addressed in the TDG Act. The TDG Act now allows for the making of regulations to address security issues with respect to the transportation of dangerous goods, and Part 8 of the Transportation of Dangerous Goods Regulations (the TDG Regulations) now requires updating. Additionally, recommendations from internal audits and from the Transportation Safety Board (TSB) reaffirmed the need to review the provisions in Part 8 of the TDG Regulations that contain reporting requirements. During a 2010 audit by the Transport Canada Program Evaluation team, it was recommended that Transport Canada (TC) improve its data collection process to increase risk analysis capacity. In 2010, the TSB also suggested that the Transportation of Dangerous Goods (TDG) Directorate reassess the reporting requirements for means of containment failure. This TSB recommendation was made following an investigation of the repetitive failures of tank car stub sills that were not reported to TC (Rail Recommendation R10-01; http://www.tsb.gc.ca/eng/rapports-reports/rail/2009/r09w0016/r09w0016.asp). Previously, accidental releases and imminent accidental releases of dangerous goods were reported under Part 8 of the TDG Regulations via an immediate report and a 30-day follow-up report. These reports had two different objectives. The immediate report, made by the person in possession of the dangerous goods at the time of the release to the appropriate provincial authority and the Canadian Transport Emergency Centre (CANUTEC) operated by TC, was to provide officials with immediate information to allow them to assess the severity of an incident and to assist first responders during their intervention. The 30-day follow-up report, made to the TDG Directorate in writing within 30 days after an incident for which an immediate report was made, gathered additional information on the scope of the incident and its aftermath. The quantity of dangerous goods released during transport was the only factor used to determine if a report was required and there were no exceptions with respect to accidental releases and imminent accidental releases. This approach was problematic; minimal reportable quantity thresholds were sometimes judged too permissive, and certain relevant incidents were not reported because they did not reach the reporting thresholds. The conditions under which reporting is required needed to be revised to capture relevant releases. The written reporting requirements in the 30-day follow-up report also needed updating to include information essential for risk analysis and data gathering regarding the transportation of dangerous goods. Also, as there was no standardized format for the 30-day follow-up report, stakeholders were uncertain as to exactly what information was required. The information provided was often incomplete and limited TC’s ability to obtain accurate and complete incident data. Time-consuming follow-ups were required by TC and the lack of information impacted TC’s ability to conduct reliable risk analyses. Part 8 did not previously require reporting of road incidents to CANUTEC. TC identified the need to be informed of the release and anticipated release of dangerous goods from road vehicles to obtain more comprehensive information for all modes of transport, thus the reporting requirements needed to be revised to include the reporting of incidents involving the transport of dangerous goods by road vehicles. Under the previous Part 8, the contact information of the person making a report was not required. However, CANUTEC requires this information to be able to follow up during an incident. In addition, over the last few years, the transport of lithium batteries as cargo on aircraft has been identified by the international community as an increasing risk in light of a number of incidents and “near incidents” that have occurred. The main safety concern is that once lithium batteries start to burn, fire suppression systems on board aircraft cannot extinguish them. The International Civil Aviation Organization (ICAO) Council recently implemented a ban on the transport of lithium ion batteries as cargo on passenger aircraft. Background The transportation of dangerous goods in Canada is regulated under the TDG Act, the regulations made under the TDG Act and the standards incorporated by reference into the TDG Regulations. The TDG program is based on the premise that properly classifying a dangerous good while ensuring that the dangerous good is transported in the required means of containment is crucial to the safe transportation of dangerous goods. Other safety requirements include Emergency Response Assistance Plans (ERAPs), proper documentation, safety marks, reporting and training. Canada’s TDG program is harmonized, as appropriate, with international regulations, United Nations (UN) recommendations, and U.S. regulations. TC is involved in the development of all aspects of the UN recommendations for the transportation of dangerous goods. In 2014, the ICAO Council adopted a ban on the transport of lithium metal batteries in the cargo space of passenger aircraft in response to tests which demonstrated that aircraft cargo fire protection systems could not control a lithium metal fire. Recent evidence has shown that lithium ion batteries pose similar safety concerns. On February 22, 2016, the ICAO Council decided to also ban the transport of lithium ion batteries as cargo on passenger aircraft until appropriate performance-based standards are developed and implemented. The prohibition was put in place following recommendations by the Air Navigation Committee (ANC) and took effect on April 1, 2016. Equipment like cell phones, tablets, laptops and electronic equipment are still permitted as cargo, as it was determined that the equipment itself acts as an additional level of protection. Changes were also made to the packaging requirements for lithium metal and lithium ion batteries for transport on cargo aircraft at the Twenty-Fifth Meeting of the Dangerous Goods Panel (DGP/25) in October 2015. They came into effect on April 1, 2016. The new provisions aim to reduce the risk of a fire involving lithium cells and batteries that may exceed the fire suppression capability of the aircraft and could lead to a catastrophic failure of the airframe. These new provisions include a 30% state of charge limit and stricter limitations on packaging to increase safety. TC issued a protective direction (PD 35) to order that every air carrier shall immediately cease transporting the dangerous goods UN3480, LITHIUM ION BATTERIES as cargo on passenger carrying aircraft and that no person shall offer for transport by air or transport by air the dangerous goods UN3090, LITHIUM METAL BATTERIES and UN3480, LITHIUM ION BATTERIES unless they meet the provisions of Packing Instruction 965 or 968, as the case may be, of the ICAO Technical Instructions. The protective direction was issued as an interim measure until publication of this amendment to implement the requirement for the long term. Objectives The main objectives of these Regulations are To require the reporting of releases and anticipated releases of dangerous goods to the appropriate local authorities to assist them in responding to incidents that endanger or could endanger public safety. To require new security provisions related to the reporting of dangerous goods that have been lost, stolen or unlawfully interfered with, and to require the reporting of undeclared or misdeclared dangerous goods transported by aircraft. To modify and clarify the reporting requirements to enable the efficient collection of data. Report data will be used to conduct risk analyses (e.g. on means of containment issues) and to help maintain public safety during the transportation of dangerous goods by all modes of transport. To prohibit the transport of lithium ion batteries as cargo on passenger aircraft and to incorporate new packing requirements for the transport of lithium batteries UN3480 and UN3090 by aircraft. Description The Regulations Amending the Transportation of Dangerous Goods Regulations (Reporting Requirements and International Restrictions on Lithium Batteries) [the amendment] update the TDG Regulations to include new security provisions, modify existing reporting requirements and specify the data to be made available for risk analysis. Part 8 now has three main sections: Road, Rail and Marine Reports, Air Reports and Security Reports. The following are the main elements of the amendment. Road, Rail and Marine Reports Emergency Report – Road, Rail or Marine The amendment requires that an emergency report be made as soon as possible to the local authority responsible for responding to emergencies if a release or anticipated release of dangerous goods during the handling, offer for transport or transport by road, rail or ship exceeds, or could exceed, the quantity specified in the amendment and if the release or anticipated release endangers, or could endanger, public safety. An emergency report is not required for an accident or incident related to the transport of dangerous goods by air, as those circumstances require a report of a dangerous goods accident or incident by air. The quantity limits that trigger reporting have been changed. For some dangerous goods, such as those in Packing Group III of Classes 4, 5.2, 6.1, 8 and those in Class 9, the limit is now higher. For the other dangerous goods, the limit has been decreased. The quantity limits are as follows: For dangerous goods transported by road, rail or ship included in Class 9 or in Packing Group III of the following classes, the specified quantity is an amount greater than 30 L or 30 kg: Class 3, Flammable Liquids; Class 4, Flammable Solids; Substances Liable to Spontaneous Combustion; and Water-reactive Substances; Class 5, Oxidizing Substances; and Organic Peroxides; Class 6.1, Toxic Substances; and Class 8, Corrosives. With respect to dangerous goods in Class 7, Radioactive Materials, a report is required for an emission level greater than the one established in section 39 of the Canadian Nuclear Safety Commission (CNSC) Packaging and Transport of Nuclear Substances Regulations, 2015. For all other dangerous goods transported by road, rail or ship, the amendment specifies that a report is required for any quantity of the dangerous goods that are involved in a release or an anticipated release. The amendment specifies the information that must be included when making the emergency report. Release or Anticipated Release Report – Road, Rail or Marine If an emergency report was required, there are certain circumstances that trigger the requirement to make a subsequent report, called a release or anticipated release report, to CANUTEC, the consignor and, if applicable, the CNSC, a Vessel Traffic Services Centre or the Canadian Coast Guard. A release or anticipated release report is required if the release or anticipated release results in the death of a person, a person sustaining injuries that required immediate medical treatment by a health care provider, an evacuation of people or their shelter in place, or the closure of a facility, a road, a main railway line or a main waterway. An initial report must also be made if the integrity of a means of containment was compromised or if the centre sill or stub sill of a tank car cracked by at least 15 cm. The amendment specifies information that must be provided when the report is made. Most of the information to be reported is similar to that required in an immediate report under the previous Part 8. However, under the amendment, there is no longer a specific requirement to report information related to a catastrophic failure of a cylinder or, in the case of a marine incident, the position of a ship and the next location at which it would be anchored. The amendment now requires the following information in addition to what was required in the previous Part 8: the name and contact number of the person making the report; the geographic location of an anticipated release; the date and time of the release or anticipated release; the mode of transport used; the name and geographic location of any road, main railway line or main waterway that was closed; the type of incident leading to the release or anticipated release; and an estimate of the number of people sheltered in place. 30-Day Follow-up Report When a release or anticipated release report for road, rail or marine is made, the person who made the report or that person’s employer must provide a follow-up report in writing to the Director General of the TDG Directorate within 30 calendar days after the day on which the release or anticipated release report was made. The amendment specifies the information that must be provided in the report. Most of the information to be reported is similar to that required in a 30-day follow-up report under the previous Part 8. Under the amendment, there is no longer a specific requirement to report a description of a catastrophic failure of a cylinder or the certification safety marks of the cylinder. It is also no longer necessary to provide the name of the person who responded to an emergency in accordance to an ERAP; however, the amendment now requires the ERAP number. The amendment also now requires the following information in addition to what was required in the previous Part 8: the name and contact number of the consignee and carrier; the mode of transport used; whether there was an explosion or fire; the name and geographic location of any facility used in loading or unloading of dangerous goods, road, main railway line or main waterway that was closed and the duration of the closure; an estimate of the number of people sheltered in place and the duration of the shelter in place; an estimate of any damage to property or the environment; the date on which the release or anticipated release report was made; and an estimate of any financial loss incurred as a result of the release or anticipated release and any response or remediation costs related to it. The person who makes the follow-up report must retain a copy of the report for 2 years and make it available within 15 days following a written request from an inspector. The amendment also specifies certain information that must be provided to the Director General as soon as possible if it changes from what was submitted in the follow-up report within a year of its submission. Air Reports Dangerous Goods Accident or Incident Report — Air The amendment specifies the conditions under which a person must report a release or anticipated release of dangerous goods at an aerodrome, an air cargo facility or by aircraft. A report must be made to CANUTEC and, if applicable, to the CNSC, if a release or anticipated release of any quantity of dangerous goods endangers or could endanger public safety and results in the death or injury of a person, damage to property or the environment, the closure of a runway, an aerodrome or an air cargo facility, an evacuation or a shelter in place, serious jeopardy to the aircraft or its occupants or if there is evidence that the integrity of the means of containment has been compromised. The report of an accident or incident by air takes the place of the emergency report and the release or anticipated release report which apply to the other modes. The amendment specifies what information must be provided when the report is made. Most of the information to be reported is similar to that required in an immediate report under the previous Part 8. However, under the amendment, there is no longer a specific requirement to report information related to a catastrophic failure of a cylinder. The amendment now requires the following information in addition to what was required in the previous Part 8: the name and contact number of the person making the report; the geographic location of an anticipated release; the date and time of the release or anticipated release; the name of the aircraft operator, the aerodrome or air cargo facility; the type of incident leading to the release or anticipated release; and an estimate of the number of people sheltered in place. 30-Day Follow-up Report When a report of a dangerous goods accident or incident by air is made, the person who made the report or that person’s employer must provide a follow-up report in writing to the Director General of the TDG Directorate within 30 calendar days after the day on which the report of the accident or incident was made. The amendment specifies the information that must be provided in the report. Most of the information to be reported is similar to that required in a 30-day follow-up report under the previous Part 8. Under the amendment, there is no longer a specific requirement to report a description of a catastrophic failure of a cylinder or the certification safety marks of the cylinder. It is also no longer necessary to provide the name of the person who responded to an emergency in accordance to an ERAP; however, the amendment now requires the ERAP number. The amendment also now requires the following information in addition to what was required in the previous Part 8: the name and contact number of the consignee and aircraft operator; whether there was an explosion or fire; the name and geographic location of any aerodrome, air cargo facility or runway that was closed and the duration of the closure; an estimate of the number of people sheltered in place and the duration of the shelter in place; the date on which the dangerous goods accident or incident report was made; an estimate of any financial loss incurred as a result of the release or anticipated release and any response or remediation costs related to it; the route by which the dangerous goods were to be transported; and a description of any serious jeopardy to the aircraft or its occupants. The person who makes the follow-up report must retain a copy of the report for 2 years and make it available within 15 days following a written request from an inspector. The amendment also specifies certain information that must be provided to the Director General as soon as possible if it changes from what was submitted in the follow-up report within a year of its submission. Undeclared or Misdeclared Dangerous Goods Report Under this amendment, a person who discovers undeclared or misdeclared dangerous goods on board an aircraft, at an aerodrome or at an air cargo facility must report to CANUTEC, as soon as possible after the dangerous goods are discovered. Dangerous goods that are shipped without the documentation and dangerous goods marks set out for those dangerous goods in the ICAO Technical Instructions (e.g. electronic equipment equipped with a lithium battery shipped in a box without the proper labels) must be reported under this requirement. This amendment adopts ICAO reporting requirements and includes new criteria for reporting dangerous goods transported by aircraft that are either misdeclared or undeclared. Security Reports Loss or Theft Report This amendment includes new requirements for the reporting of the loss or theft of certain dangerous goods with identified potential security risks if the quantity of the dangerous goods that was lost or stolen exceeds the quantity specified in the amendment. For example, the theft of a cylinder of chlorine from a delivery truck would require a loss or theft report. The report must be made to CANUTEC and, if applicable, to Natural Resources Canada (NRCan) and the CNSC. The amendment specifies information that must be provided in the report. Unlawful Interference Report This amendment includes new requirements for the reporting of unlawful interference with dangerous goods. Unlawful interference would include situations such as tampering with a valve on a container of a toxic gas. Such an incident must be reported to CANUTEC and, if applicable, to NRCan and the CNSC. The amendment specifies information that must be provided in the report. New Definition of “Release” In 2009, the TDG Act was updated to include both safety and security provisions. This amendment reflects the new definition “release” found in the TDG Act and repeals the definitions “accidental release” and “imminent accidental release.” As a result, “release” will capture both accidental releases and voluntary releases. The previous definitions only captured releases due to accidents. The broader definition clarifies the scope of the term and better identifies the discharges requiring a report. The TDG Act now refers to “anticipated release” for potential releases including, but not restricted to, anticipated releases from means of containment that are stressed or damaged in handling (e.g. a means of containment is damaged by a forklift, a nuclear densometer from a construction site is run over by heavy machinery) or in an accident (e.g. a tanker truck is driven into a ditch, a train is derailed, dangerous goods are lost in navigable waters during a storm) and that will most likely have suffered from structural damage. This amendment requires the reporting of all instances in which a means of containment is damaged such that its integrity is compromised in a way that may lead to a release. Lithium Batteries This amendment introduces a prohibition on the transport of lithium ion batteries as cargo on passenger aircraft. The prohibition applies to lithium ion batteries packed on their own and not to lithium ion batteries packed with or contained in equipment such as cell phones, tablets, electronic equipment. It applies to lithium ion batteries transported as cargo and not to lithium ion batteries carried by passengers and crew. Although baggage may be loaded in an aircraft’s cargo compartment, it is not considered as cargo under the ICAO Technical Instructions thus it is not subject to the prohibition. Passengers and crew may continue to carry spare lithium ion batteries for portable electronic and medical devices in carry-on baggage as long as they comply with the passenger restrictions found in the ICAO Technical Instructions. This amendment also introduces additional requirements for the transport of lithium ion and lithium metal batteries for transport on cargo aircraft, which will continue to be permitted. Through this amendment the TDG Regulations now reference Packing Instructions 965 (for lithium ion) and 968 (for lithium metal) of the 2015–2016 ICAO Technical Instructions. These packing instructions have recently been revised by ICAO to include stricter provisions which include transporting all lithium ion batteries at a state of charge not exceeding 30% of their rated capacity and limiting the number of packages of lithium ion or lithium metal batteries for certain consignments (those shipped in accordance with Section II of Packing Instructions 965 or 968). Both the prohibition for lithium ion batteries and the restrictions for lithium metal batteries and lithium ion batteries will come into force upon publication of this amendment. Other Amendments In addition, the following amendments clarify and make minor corrections in the TDG Regulations: Amend the table in section 1.3.1 to correct the name of technical standard CGSB-43.151; Amend paragraphs 1.6(1)(c) and 1.6(2)(c) by repealing “or more” to better align the wording with the intent of the TDG Regulations as the quantity limit in columns 8 and 9 reflects the maximum quantity in a single means of containment; Remove from subparagraph 1.15(1)(a)(i) and special provision 80 requirements for aerosol containers as they are no longer requirements under Part 5 (Means of Containment) of the TDG Regulations since July 2014; Amend subparagraph 1.15(1)(a)(i) by removing “to a user or purchaser” to reflect the intent; Add UN numbers permitted in transport under the 150 kg exemption to paragraph 1.15(2)(c); Correct the units of measurement in subparagraphs 1.17.1(1)(b)(i), 1.17.1(1)(b)(ii), 1.17.1(c)(i) and 1.17.1(1)(c)(ii) of the French version to reflect the English version and replace “kilogrammes” with “grammes” and “litres” with “millilitres;” Correct a typographical error in subparagraph 1.17.1(c)(iii) of the French version to reflect the English version and replace “colonne 1” with “colonne 2;” Amend subsection 1.17.1(7) of the French version to reflect the English version by adding “extérieur” after “contenant;” Correct a typographical error in paragraph 2.36.1(c) of the English version, removing the word “it” so that the paragraph reads as follows: “(. . .) if the shipper has (. . .);” Replace the word “personne” with “individu” in the French version of subsection 3.6.1(2); Amend subsection 4.23(3) by repealing “Poison” to harmonize with the 49 CFR regulations; Amend the text of the third paragraph of the description of “Col. 7” under the heading “LEGEND” of Schedule 1 to add UN1170; Amend the text in Column 7 of the LEGEND to Schedule 1 to reflect the recent changes to subsections 7.1(6) and 7.1(7); Amend column 3 of the italicized table under “Col. 8/Col. 9” under the heading “Example 1 : UN1660” under the heading “HOW TO USE SCHEDULE 1” to reflect the correct subsidiary classes; Correct a typographical error in column 2 of the English version of Schedule 1 for UN0508, 1-HYROXYBENZOTRIAZOLE, ANHYDROUS, from “1-HYROXYBENZOTRIAZOLE, ANHYDROUS” to “1-HYDROXYBENZOTRIAZOLE, ANHYDROUS; ” Replace the word “Interdit” with “Forbidden” in the English version of Schedule 1 for UN1308; Add special provision 80 for UN2037, GAS CARTRIDGES, in Schedule 1; Add a subsidiary class of 6.1 for UN2381, DIMETHYL DISULFIDE, and UN2809, MERCURY in Schedule 1; Correct the units of measurement in the portion of UN Number UN2794 and UN2795 in column 9 of Schedule 1 from “30 L” to “30 kg;” Add special provision 151 to column 5 of Schedule 1 for UN3090 LITHIUM METAL BATTERIES (including lithium alloy batteries) and add UN3090 in the italicized text after special provision 151; Remove special provision 91 for UN3166, ENGINE, INTERNAL COMBUSTION, in Schedule 1; Correct a typographical error in column 2 of the English version of Schedule 1 for UN3416, CHLORACETOPHENONE, from “CHLORACETOPHENONE” to “CHLOROACETOPHENONE;” Correct a typographical error in column 2 of the English version of Schedule 1 for UN3425, BROMACETIC ACID, from “BROMACETIC ACID” to “BROMOACETIC ACID;” Correct a typographical error in column 2 of the English version of Schedule 1 for UN3436, HEXAFLUORACETONE HYDRATE, SOLID, from “HEXAFLUORACETONE HYDRATE, SOLID” to “HEXAFLUOROACETONE HYDRATE, SOLID;” Correct a typographical error in column 2 of the English version of Schedule 1 for UN3442, DICHLORANILINES, SOLID, from “DICHLORANILINES, SOLID” to “DICHLOROANILINES, SOLID;” Correct a typographical error in column 2 of the English version of Schedule 1 for UN3450, DIPHENYLCHLORARSINE, SOLID, from “DIPHENYLCHLORARSINE, SOLID” to “DIPHENYLCHLOROARSINE, SOLID;” Correct a typographical error in column 2 of the English version of Schedule 1 for UN3458, NITRANISOLES, SOLID, from “NITRANISOLES, SOLID” to “NITROANISOLES, SOLID;” Correct a typographical error in column 2 of the English version of Schedule 1 for UN3471, HYDROGENODIFLUORIDES, from “HYDROGENODIFLUORIDES” to “HYDROGENDIFLUORIDES;” Add special provision 151 in column 5 for UN3480, LITHIUM-ION BATTERIES and add UN3480 to italicized text after special provision 151; Remove the number 5 in the Passenger-Carrying Ship Index in column 8 of Schedule 1 for UN3480, LITHIUM-ION BATTERIES, and UN3481, LITHIUM-ION BATTERIES CONTAINED IN EQUIPMENT; Add special provision 106 to column 5 of Schedule 1 for UN3494, PETROLEUM SOUR CRUDE OIL, FLAMMABLE, TOXIC, and add UN3494 after UN1267 in the italicized text after special provision 106, as it was omitted in the previous amendment of December 2014; Repeal UN2730 from the italicized text of special provision 43 in Schedule 2; Add UN1266, UN3469 and UN3471 in the italicized text of special provision 59 in Schedule 2; Add UN3370 in the italicized text of special provision 61 of Schedule 2 Amend the text of special provision 99 by changing “450 L de UN3077, MATIÈRES DANGEREUSES DU POINT DE VUE DE L’ENVIRONNEMENT, SOLIDE, N.S.A” to “450 kg de UN3077, MATIÈRES DANGEREUSES DU POINT DE VUE DE L’ENVIRONNEMENT, SOLIDE, N.S.A;” Amend the text of special provision 137 by changing “Damaged” or “Defective” for “Damaged/ Defective” and by changing “Endommagées” et “Défectueuses” by “Endommagées/Défectueuses;” Add a new special provision 151 to Schedule 2 to reflect the “Technical Instructions for the Safe Transport of Dangerous Goods by Air,” 2015–2016 Edition, published by the ICAO. “One-for-One” Rule TC has considered the potential impacts of the reporting requirements on administrative burden for businesses, and has determined that the “One-for-One” Rule would apply in this case. Requirements related to the following reports have been identified as administrative burden on industry: a release or anticipated release report (road, rail or marine), a dangerous goods accident or incident report (air), a 30-day follow-up report and a report of undeclared or misdeclared dangerous goods transported by air, a loss or theft report and an unlawful interference report. This amendment will allow TC to collect necessary information regarding the reporting of dangerous goods occurrences in Canada to increase public safety. A cost-benefit analysis has been conducted to assess the impact of the amendment on stakeholders where a 10-year time period (2017–2026) and a 7% discount rate was used. Release or Anticipated Release Report — Road, Rail or Marine and Dangerous Goods Accident or Incident Report – Air Under the reporting requirements in previous TDG Regulations, approximately 800 immediate reports were submitted to TC on an annual basis. As a result of the revised criteria for reporting a release or anticipated release or a dangerous goods accident or incident by air under this amendment, it is expected that the number of reports received will increase by 100% in the first year with an annual increase of 1% from 2018 onwards. It is predicted that it will require seven minutes to complete a release or anticipated release report. Based on an average hourly wage of $29.80, including 25% overhead costs, the present value of the total relevant costs is estimated at $21,106 over the 10-year period, resulting in an annualized value of approximately $3,005. 30-Day Follow-up Reports Under the previous TDG Regulations, a 30-day follow-up report was required for each immediate report that was required to be made, which represents approximately 800 30-day follow-up reports. As a follow-up report will be required under the amendment for each release or anticipated release or a dangerous goods accident or incident by air it is estimated that the number of follow-up reports will also increase by 100% in 2017. In the following years from 2018 onwards to 2026, there will be only a 1% increase annually. It is predicted that the follow-up report will require 96 minutes to complete and will lead to a present value of total related cost of $289,450 over 10 years and increased annualized value of approximately $41,211. Undeclared and Misdeclared Dangerous Goods by Air, Loss or Theft Report and Unlawful Interference Report Under this amendment, a person who discovers undeclared or misdeclared goods on board aircraft at an aerodrome or at an air cargo facility must report to CANUTEC. This requirement is new, however, many operators already report voluntarily to CANUTEC as it is a requirement in the ICAO Technical Instructions. It is estimated that the introduction of this regulatory requirement will result in a 25% increase in reports in 2017 (representing approximately 13 additional reports) with a 1% annual increase in the number of reports in following years. Therefore, the present value of the total related cost is estimated at $414 over 10 years, corresponding to an annualized value of $59. The annualized value of the total administrative burden imposed by the Regulations on businesses is $31,568 (note that the figure stated in the “One-for-One” rule is measured in 2012 dollars, with a present value base year of 2012, as required by the Red Tape Reduction Act, and thus is different from the value of $44,275). Small business lens This amendment does not fall within the area of applicability of the small business lens as the total annualized costs on small businesses are under $1 million. Overall, the proposed regulations are expected to have a low impact on the industry, imposing a cost of $44,275 annually. Consultation Elements of the proposed amendment were presented to the TDG General Policy Advisory Council (GPAC) and the Multi-Association Committee on TDG stakeholders during the semi-annual meetings held in 2012 and 2013. A Web consultation was initiated in February 2012, followed by a 15-day comment period. Thirty-nine comments were received from various groups, including the chemical manufacturing industry, the petroleum industry, dangerous goods carriers and provincial authorities. Some stakeholders commented that this amendment would enhance the clarity and effectiveness of the TDG Regulations, however, one commenter disagreed with the proposal in its entirety, stating concerns that the proposed amendment would lead to interpretation issues. TC opted to maintain the proposed amendment, as TC required more detailed and complete data for risk analysis, and to develop standards and regulations. The comments received were taken into consideration by TC in the development of the proposed amendment for publication in the Canada Gazette, Part I. During the spring 2014, TDG GPAC meeting, members were updated on the proposed amendment and all were supportive of the proposed changes. The proposed amendment was published in the Canada Gazette, Part I, on June 6, 2015, for a 30-day public comment period. During that time, TC received 13 submissions from various stakeholders including industry associations, provincial governments, dangerous goods manufacturers, importers and carriers, municipal organizations and fire emergency service providers and their associations. Comments received were taken into consideration in the development of this final amendment. Stakeholders supported the introduction of criteria that take the outcomes of releases or anticipated releases into consideration in order to target reporting to capture information regarding relevant releases and anticipated releases of dangerous goods that endanger, or could endanger, public safety. They also expressed support for the harmonization of these criteria with international regulatory requirements. Stakeholders supported the standardized format and content of the 30-day follow-up report and also appreciated that use of the TC template would be voluntary. Support was expressed for the requirements outlined in the proposed amendment pertaining to the reporting of loss or theft of, and unlawful interference with dangerous goods. The following is a summary of other comments received and how they are addressed in the final amendment. Clarification of Terminology Many stakeholders requested clarification and recommended the addition of definitions for terms such as “anticipated release”, “unlawful interference” and “trace”. In response, TC has replaced the word “trace” in the quantity table in the proposed amendment with “any quantity” to indicate that a release or anticipated release of any amount of the dangerous good would meet the quantity criterion for reporting the release or anticipated release. TC is of the view that a definition of “unlawful interference” is not required in the Regulations as common definitions accurately describe the intent. To help clarify what is considered to be an “anticipated release” a new criterion (“a means of containment has been damaged to the extent that its integrity is compromised”) has been added for which a release or anticipated release report will be required. An explanation of this new criterion, along with examples, is included in a guidance document to accompany the amendment. Clarification and examples of other terms and requirements in the amendment have also been included in a guidance document to answer questions raised by stakeholders. Clarification of Requirements to Report under the TDG Act Clarification was sought regarding the reference to the requirements under the TDG Act for reporting a release or anticipated release. Stakeholders requested that the intent of the reference to subsection 18(1) of the TDG Act be provided in the regulatory text. The actual text in the TDG Act could not, however, be reproduced in the amendment as this is not common practice. The intent is that a person who has the charge, management or control of a means of containment is required to make a report under subsection 18(1) of the TDG Act if a release or anticipated release of dangerous goods from that means of containment both exceeds the quantity expressed in the table and it endangers, or could endanger public safety. This explanation is also provided in a guidance document to accompany the amendment. Reporting Requirements for Releases or Anticipated Releases of Dangerous Goods Several stakeholders commented that the way in which the criteria for initial reporting were presented in the proposed amendment was hard to follow. In response, the sections with respect to release and anticipated release reporting have been restructured. The reporting requirements for the transport of dangerous goods by air have been separated from the requirements related to the transport of dangerous goods by the other modes. Several contacts have also been removed from the list of contacts in the proposed amendment in order to decrease the burden on the person making the report. Under the final amendment it is no longer necessary to make a release or anticipated release report for road, rail or marine modes to the appropriate provincial authority as the local authority responsible for responding to emergencies will already have been contacted via the emergency report (see below). The requirements to contact the employer and, if applicable, the owner, lessee or charter of a road vehicle, have also been removed as these entities are not responsible for the emergency response to an incident. For air, only CANUTEC and, if applicable, the CNSC, must be reported to. In addition to the new criterion that requires reporting if a means of containment has been compromised, a report will also be required if there is a shelter in place of people. The criterion to report if a means of containment has caught fire, has ruptured or has exploded has been removed as these situations would be captured under the criterion regarding the means of containment being compromised. The criterion to report a release or anticipated release that occurred specifically as a result of venting has also been removed as reporting of this kind of release or anticipated release will be captured under the other criteria. As for all releases or anticipated releases, venting of a dangerous good would be required to be reported if it exceeds the quantity limit and if it endangers or could endanger public safety. Intentional venting would not require reporting if it is conducted under circumstances where such an event would not endanger public safety. The removal of this criterion addresses the concern of many stakeholders who interpreted the proposed amendment to mean that a release that resulted from intentional venting would need to be reported even if it did not endanger public safety. That is not the intent of the amendment. Further explanation has been included in guidance material. Reporting to Local Authorities and Communication Challenges Many stakeholders, particularly emergency responders and provincial governments, expressed concern that the reporting criteria for the initial report in the proposed amendment would limit reporting to local authorities who are trained to provide emergency services related to public safety. They recommended that the scope of the reporting be expanded. In response, the amendment has been revised to include a requirement for an emergency report to the local authority responsible for responding to emergencies for all releases and anticipated releases that exceed the specified quantity in the amendment and endanger, or could endanger, public safety. The emergency report will allow appropriate action to be taken by emergency responders without delay and will enable decisions to be made by trained professionals regarding the need for closures, evacuations and shelter in place, which are criteria that trigger the requirement to make a release or anticipated release report. Comments indicated that first responders are not always contacted and some stakeholders recommended that the contact list be modified to address communication issues during dangerous goods incidents. It was suggested that 911 be listed as the emergency number. In response, TC has included 911 in the list; however, due to the unavailability of the 911 service in some parts of the country, other contact names and numbers are also listed. In addition, the table of contact information for the appropriate local authorities has been removed from the TDG Regulations and instead included on the TC Web site and in guidance material. This will increase efficiency and allow timely updates to names and phone numbers of emergency personnel which change over time. Report of Undeclared and Misdeclared Dangerous Goods by Air A few stakeholders indicated that the proposed 30-day deadline to submit reports of undeclared or misdeclared dangerous goods was too long to enable follow-up for compliance. TC agrees and the amendment has been modified to require a report to CANUTEC by telephone as soon as possible after the discovery. Confidential Information One stakeholder commented that information reported in the 30-day follow-up report under the requirement to provide an estimate of costs associated with a dangerous goods incident should be considered confidential. The information will be treated confidentially by TC and TC will not disclose such information unless disclosure is required under an Act such as the Access to Information Act or the Privacy Act or unless TC is required or authorized under law to disclose it. The amendment requires the reporting of this information as it is essential for TC in order to conduct a meaningful analysis of the impacts of such an incident. Lithium Batteries The new provisions in this amendment regarding lithium batteries were not part of the proposed amendment that was published in the Canada Gazette, Part I as the decisions by ICAO to further restrict the transport of lithium batteries by air were made after the consultation period. However, industry and air operators have been consulted on the issue. TC consulted industry on the proposed ICAO working papers concerning restrictions related to the transport of lithium batteries by aircraft that were presented at the DGP/25 in October 2015. Air operators involved in the transport of dangerous goods were present at the discussions at the DGP/25. Manufacturers and distributors of lithium batteries also participated at the DGP/25 meeting and were aware of the coming into force of the new lithium battery provisions. They were to notify their industry and members so that the changes could be implemented by April 1, 2016. In February 2016, TC consulted air operators on the impacts they anticipated as a result of the ban implemented by ICAO. Some stakeholders expressed concern regarding the limitations that the ban would impose for the timely delivery of lithium-ion batteries in remote areas where passenger aircraft are the only means of transport. Under the TDG Act, TC can grant exemption to the TDG Regulations through the issuance of a certificate which could allow the transport of lithium ion batteries destined to remote locations (with no road access) where dangerous goods can sometimes be serviced only by aircraft carrying passengers. The same concern was raised when lithium metal batteries were banned as cargo on passenger aircraft in 2014, however, no requests for certificates have been received by TC, which suggests that the batteries are being transported by other means of transportation. Rationale Part 8 of the TDG Regulations required updating to reflect amendments made to the TDG Act in 2009. These changes will address the risks related to security and include the reporting of dangerous goods releases and anticipated releases, and lost, stolen or unlawfully interfered with dangerous goods. In addition, recommendations from internal audits and from the TSB reaffirmed the need to review the reporting provisions; the written reporting requirements needed to be updated to introduce new requirements to gather essential information for risk analysis pertaining to the transportation of dangerous goods. Through this amendment the TDG Regulations will now require more information to be reported under the new release or anticipated release report. Incidents related to the transport of dangerous goods by road will now be required to be reported to CANUTEC where this was not a requirement under the previous TDG Regulations. The criteria that trigger the requirement to report have also been modified. Under the amendment the quantity thresholds have been reduced for most classes of dangerous goods and circumstantial criteria have been added. Through the introduction of circumstantial criteria to trigger the requirement for a release or anticipated release report, the amendment will enable TC to gather information on the most relevant releases and anticipated releases that endanger, or could endanger, public safety. The emergency report will help to provide local authorities with immediate information to allow them to assess the severity of an incident, to help first responders during their intervention and make decisions regarding actions needed. The outcomes of some of these decisions, such as the need for closures or shelter in place, will trigger some of the criteria for the requirement to make a release or anticipated release report. With the addition of reporting of road incidents to CANUTEC and the new quantity thresholds and criteria for reporting a release or anticipated release, the number of release or anticipated release reports is expected to increase. The information required in the 30-day follow-up report has been determined based on recommendations of the TSB and internal audits regarding data for risk-based inspection plans and will allow TC to conduct better risk analysis and establish more effective regulations in the future, and may act as an indicator of where regulations could be reviewed. The number of 30-day follow-up reports is expected to increase as a result of this amendment as a follow-up report is required for each release or anticipated release report. A 30-day follow-up report is also required for each report of a dangerous goods accident or incident by air, however, these numbers are not expected to increase as these reports were already required under the previous version of the TDG Regulations. The amendment is also harmonized with reporting practices in the United States and requirements in the ICAO Technical Instructions. The criteria for the release or anticipated release report are aligned with the reportable incidents identified in the U.S. Code of Federal Regulations 49 (49 CFR). Harmonizing common elements with reporting practices in the United States will facilitate the comparison of common data sets, allowing Canada and the United States to merge data sets based on those common elements to produce larger sets of statistical information for risk analysis. Canada has harmonized reporting criteria, such as death, injury, evacuation or closure of a main transportation artery, where applicable but has also included elements that are Canada-specific. Canadian reporting criteria include a shelter in place (for example a school lock-down due to a chlorine leak as a result of a train derailment nearby), a means of containment is damaged (for example during transport, a highway tank containing petroleum crude oil was rear-ended, resulting in damage to the tank) and the centre sill or stub sill of a tank car breaking or having a significant crack. The addition of the criterion regarding stub sills was included in response to recommendations made by the TSB following an investigation of repetitive failures of a specific design of tank car stub sills. A data gap was identified as these failures were not required to be reported under the previous Part 8 of the TDG Regulations. The addition of this criterion will allow TC to capture data on stub sill failures to help identify design and maintenance issues so that public safety concerns can be addressed. The requirements for the dangerous goods accident or incident report for air and the undeclared or misdeclared dangerous goods report are aligned with the reporting requirements in the ICAO Technical Instructions. The regulatory requirement to report undeclared and misdeclared dangerous goods by air replaces voluntary reporting that originated from the ICAO Technical Instructions and required an aircraft operator to report such a discovery to the state of the operator or the state where it was discovered. This change will allow TC to comply with international obligations under the Chicago Convention and will help TC obtain information for identifying compliance issues and targeting awareness efforts. Stakeholders impacted by the amendment are consignors and carriers who handle, offer for transport, transport or import dangerous goods in Canada as they are the parties responsible for reporting dangerous goods incidents. This amendment introduces two more types of reports for dangerous goods that have been lost, stolen or unlawfully interfered with. This requirement will help to ensure that loss or theft of, or other unlawful interference with, dangerous goods be acted upon in order to reduce potential security threats. These reports will help reduce gaps in data as very few reports of this nature were received in the past. The dangerous goods for which new requirements for the reporting of loss or theft apply are dangerous goods that have been identified as posing security risks. They are either prescribed as restricted components under the Explosives Regulations, 2013 or require security provisions under the UN Recommendations and the 49 CFR. Stakeholders are supportive of these changes and have been requesting them for a number of years. This amendment helps to streamline the reporting process. TC has consulted widely with key partners and stakeholders, who have expressed support for the approach and urged timely action. This amendment also results in increased safety and greater harmonization with ICAO Technical Instructions by incorporating the prohibition on the transport of lithium ion batteries as cargo on passenger aircraft and changes with respect to the transport of lithium ion batteries and lithium metal batteries on cargo aircraft found in Addenda No. 3 and No. 4 to the 2015–2016 edition of the ICAO Technical Instructions. Canada, as a member of ICAO, has undertaken to implement these changes. A regulatory amendment is considered the most transparent and effective way to ensure compliance. TC issued a protective direction to Canadian air carriers and consignors on April 1, 2016 as an interim measure, effective April 1, 2016, until this amendment could be published. Costs The cost of this amendment to the TDG Regulations on stakeholders is expected to be low. The emergency report is not expected to increase cost for regulatees as it is common practice to contact local emergency services in the case of a situation involving dangerous goods. This amendment aims to ensure that emergency responders are aware of such incidents. A small cost increase is expected for some regulatees as a result of the addition of the requirement to report road incidents to CANUTEC. A cost increase is also expected as a result of the projected increase in the number of release or anticipated release reports required due to the new quantity thresholds and criteria for reporting. While the quantity thresholds have been lowered for most classes of dangerous goods, the addition of circumstantial criteria limits the number of reports required to those that are most relevant for TC analysis, thus minimizing the increase in the number of reports required. No cost increase to regulatees is expected to result from the changes to the list of entities to which reports should be made as the number of entities to which reports will be required to be made would remain the same. The introduction of new reporting requirements for dangerous goods that have been lost, stolen or unlawfully interfered with will result in a slight cost increase for regulatees. Since 2009, TC has been receiving approximately 50 reports per year under the Interim order respecting dangerous goods that are lost or stolen or otherwise unlawfully interfered with. This interim order was put in place in 2009 to ensure that the loss or theft of or other unlawful interference with dangerous goods be acted on in order to reduce potential security threats during the 2010 Vancouver Olympic Games and the 2010 G8 Summit. It is no longer in effect, however, stakeholders have continued to submit these reports voluntarily. It is estimated that there will be a 25% increase in the number of these reports required to be submitted as a result of this amendment. The new internationally-recognized prohibition on the transport of lithium ion batteries as cargo on board passenger aircraft and the new restrictions for the transport of both lithium ion and lithium metal batteries on cargo aircraft are expected to have minimal incremental cost impacts on manufacturers, importers and distributors of lithium batteries as they are already required to meet the requirements for international shipments. Delivery schedules will change as lithium batteries will only be allowed to be shipped as cargo on board cargo aircraft. Their shipment as cargo on passenger aircraft will no longer be an option. There might also be an impact for remote communities, such as those in the north, where cargo aircraft service is limited. It is expected that compliance costs would increase slightly due to the new administrative procedures induced to adapt to size limitation for shipments. Employers of manufacturers, consignors and carriers of dangerous goods will need to provide training in order to comply with the new requirements of this amendment. It is not expected that training will increase the compliance cost as the TDG Regulations already require recurrent training for persons involved in the handling, offering for transport or transport of dangerous goods every 24 months for air mode and 36 months for the other modes. Introduction of a New Reporting Form In addition to this amendment, TC is introducing a voluntary reporting form, which is available on TC’s Web site. In the past, there was no specific form to prepare the 30-day follow-up report, forcing TC to conduct time-consuming follow-ups and creating gaps in the necessary data and in the risk analyses. Therefore, based on stakeholder feedback, a new online form has been created for filing the 30-day follow-up report. This form can be completed online and emailed or sent by mail to TC. Available on the TC Web site along with a guidance document explaining in plain language the information that is required to be reported by the Regulations, the form will help reduce administrative burden on industry. However, the form is not part of the Regulations and is not mandatory; stakeholders have the option of submitting their own form, provided all the required information is present. It is expected that the clarification provided to regulatees through the form and the guidance material developed by TC will decrease the time required to make reports. Implementation, enforcement and service standards Proper implementation of regulatory amendments is a key aspect of the regulatory life cycle. Once regulatory amendments become law, the TDG Directorate develops new training and awareness material for inspectors and stakeholders. New regulatory requirements are disseminated using a communication network that is already well established. Some of the main tools used to implement regulatory changes are: The TC Web site: The Department’s Web pages are updated on a regular basis with various communication products, as well as specific sections for awareness material (e.g. frequently asked questions, alerts, advisory notices and bulletins). Notices with respect to the Part 8 amendment have been placed on the relevant pages of the TC Web site. The TDG General Policy Advisory Council: This group, composed of over 40 different industry associations, meets twice annually to discuss issues affecting stakeholders and advise the Minister. During these meetings, TC consults and provides information/updates on regulatory amendments that are proposed or that have come into force. Industry is well aware of the amendment to Part 8 of the TDG Regulations. The Multi-Association Committee on TDG: This committee provides a forum for industries to discuss questions of interest on the subject of the transport of dangerous goods. TC is invited to participate and provide clarification on regulatory and enforcement issues. This forum is also a good opportunity for the distribution of information about compliance with new regulatory requirements. Updated information about the changes to Part 8 of the TDG Regulations will be provided to this committee during the meetings scheduled in 2016. The TDG Newsletter: The Newsletter, published semi-annually since 1980, is distributed to over 15 000 readers in Canada and abroad. It is free of charge and available in hard copy and electronically on the TDG Web site. Proposed regulatory amendments and updates are published in the TDG Newsletter regularly. An article highlighting the amendment to Part 8 will be prepared for the TDG Newsletter in the issue following the coming into force of the amendment. In addition to the implementation measures outlined above, TC has prepared a guidance document that will be available on TC’s Web site to provide information and clarification on Part 8 reporting requirements, including how to fill out the new 30-day follow-up form. Compliance with the TDG Act and the TDG Regulations is verified through inspections. These inspections are carried out at both the federal level and the provincial level and involve all modes of transport and all consignors of dangerous goods. The implementation objective is to update and enhance inspector training tools to ensure that oversight is undertaken by properly trained staff. The amendment to Part 8, Reporting Requirements and International Restrictions on Lithium Batteries, is anticipated to have a neutral effect on TDG inspectors. Information will be provided to them to keep them updated and aware of the new requirements. Contact Transportation of Dangerous Goods Directorate Transport Canada Place de Ville, Tower C, 9th Floor 330 Sparks Street Ottawa, Ontario K1A 0N5 Fax: 613-993-5925 Email: [email protected] Footnote a S.C. 2009, c. 9, s. 25 Footnote b S.C. 2009, c. 9, s. 26 Footnote c S.C. 1992, c. 34 Footnote 1 SOR/2001-286

This Bill does not amend any statutes.

Sign up for alerts on this Bill

Receive emails tracking this Bill's progress.

See all your alerts in a dashboard.

Set an alert with one click and you're done!