Canada Gazette, Part I, Volume 152, Number 26: Regulations Amending the Transportation of Dangerous Goods Regulations (Emergency Response Assistance Plan)

June 30, 2018

Statutory authority

Transportation of Dangerous Goods Act, 1992

Sponsoring department

Department of Transport

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

The Transportation of Dangerous Goods Act, 1992 (the TDG Act) requires any person importing, offering for transport, handling or transporting certain higher risk dangerous goods (e.g. chlorine, propane, crude oil) in the quantities or concentrations specified in the Transportation of Dangerous Goods Regulations (the TDG Regulations), to have an emergency response assistance plan (ERAP) approved by the Minister of Transport (the Minister). An ERAP describes the actions to be taken in the event of a transportation accident involving these higher risk dangerous goods.

In a 2016 report, the Transportation of Dangerous Goods Emergency Response Task Force (ERTF) made 40 recommendations on ways to improve emergency response assistance to incidents involving flammable liquids transported by rail. The report identified several issues with the existing ERAP program and provided 10 recommendations to improve the ERAP program grouped under three themes: clarifying ERAP implementation, coordinating multiple plans and ensuring effective monitoring.

Background

In Canada, the transportation of dangerous goods is regulated under the TDG Act, the TDG Regulations, and standards incorporated by reference into the TDG Regulations. The TDG Act and the TDG Regulations comprise the regulatory framework for the ERAP program.

Transportation incidents involving the release or anticipated release of dangerous goods can present specific risks. In some cases, the magnitude of these incidents and the danger they present require a very different approach and strategy than most local authorities are trained to deal with. An ERAP is intended to assist emergency responders by providing them with specialized expertise, equipment, or response teams when needed. It also ensures that the risks associated with transporting these dangerous goods are well understood, and that the plan holders have appropriate measures in place.

To become an ERAP holder, a person must apply to the Minister for approval. Approvals are issued for specified periods, which are dependent upon the risks. Transport Canada (TC) also receives ERAP applications for existing ERAPs when changes are made or prior to their expiration.

Between 2007 and 2017, TC recorded approximately 360 transportation incidents involving ERAP implementation. There are over 1 060 ERAPs approved by the Minister, covering over 390 dangerous goods. Since there is currently no requirement to inform the Minister when an ERAP is implemented, there are information gaps on when ERAPs were implemented and if they provided the appropriate assistance.

On July 6, 2013, a 73-car train from the Montréal, Maine & Atlantic Railway carrying crude oil rolled away from its parked location and derailed in downtown Lac-Mégantic. This disaster caused 47 fatalities and destroyed the core of Lac-Mégantic. Among other improvements needed to the Transportation of Dangerous Goods program, the Lac-Mégantic disaster pointed to the need to improve TC's emergency response programs.

In April of 2014, the Minister announced the creation of the Transportation of Dangerous Goods ERTF, which comprised a variety of stakeholders representing industry, emergency response organizations, municipalities and provinces. In addition to its focus on improving public safety in the event of incidents involving flammable liquids transported by rail, the ERTF also had the mandate to make recommendations to improve the ERAP program. In July of 2016,footnote 1 the ERTF submitted its final report, which presented 40 recommendations. Ten of these recommendations were related to improving the ERAP program, which focused on better distribution of information on available ERAP resources and how and when to access them. This proposal addresses seven of these recommendations by clarifying the ERAP implementation process, including tiered response levels and providing TC with mechanisms to collect meaningful data.

Objectives

The primary objectives of the proposed Regulations Amending the Transportation of Dangerous Goods Regulations (Emergency Response Assistance Plan) [the proposed amendments] are to address the recommendations of the ERTF to improve the ERAP program and enhance public safety in the event of an incident during the transportation of dangerous goods. These objectives support the overall strategy to promote a safe, secure and efficient transportation system that contributes to Canada's economic development and security objectives.

Description

The proposed amendments would

1. Clarifying ERAP implementation

Initial notification through ERAP incident report

Under the proposed amendments, an ERAP incident report would have to be made as soon as possible in the event of a release or anticipated releasefootnote 2 of dangerous goods. The ERAP incident report would be a mandatory notification made to the ERAP holder by the person who has the charge, management or control of a means of containment. The current TDG Regulations do not require an ERAP incident report or any form of notification to the ERAP holder. The following information would have to be included in the ERAP incident report:

ERAP implementation

Under the proposed amendments, the ERAP holder has the responsibility to implement the ERAP. An ERAP must be implemented if there is an actual or anticipated release that endangers or could endanger public safety. The current TDG Regulations do not specify the situations under which an ERAP must be implemented, or who is responsible for implementing an ERAP.

In the current TDG Regulations, the telephone number to call to have an ERAP activated immediately must be included in a shipping document. Calling this number could be misinterpreted as automatically triggering an ERAP implementation. However, under the proposed amendments, the wording would be amended to indicate that anyone calling the ERAP telephone number to seek information would not necessarily trigger an ERAP implementation and to specify that the person who has the ERAP can be reached at any time while the dangerous goods are in transport.

Tiered response levels

Upon implementation of an ERAP, appropriate resources may have to be deployed to mitigate the situation. The proposed amendments would provide two tiers of response. The first tier involves responding to the release or anticipated release remotely, while the second tier involves deploying resources such as equipment or personnel to the site. Once the ERAP is implemented, the ERAP holder would be required to indicate whether they are implementing a tier 1 or tier 2 response, based on the needs of the incident.

A person who implements an ERAP to tier 1 would have to

A person who implements an ERAP to tier 2 would have to

The current TDG Regulations do not contain any requirements with respect to response tiers or the nature of the response.

ERAP implementation report

A new requirement to submit an ERAP implementation report would be added through these proposed amendments. There is currently no requirement to inform the Minister that an ERAP has been implemented.

Under the proposed amendments, each time an ERAP holder implements an ERAP to tier 1 or tier 2, the person would have to make an ERAP implementation report to the Canadian Transport Emergency Centre (CANUTEC) at 1-888-CANUTEC (1-888-226-8832) or 613-996-6666 as soon as feasible. The following information would be communicated in the ERAP implementation report:

2. Enhancing emergency preparedness and response

Additional ERAP application requirements

Under the proposed amendments, applicants would be required to submit a copy of the ERAP to the Minister.

The application for approval of an ERAP was also amended so that the following information would now be required as part of the ERAP application:

Through the proposed amendments, the "potential accident assessment" that is currently required under the TDG Regulations would be renamed "potential incident analysis" and would require the analysis of four scenarios for dangerous goods included in the ERAP:

For each scenario, the following would be required: the possible consequences of the release or anticipated release; the measures, organized by tier, to be taken in response to the release or anticipated release for each scenario; and the identification of the persons responsible for taking the measures. The current "potential accident assessment" requires only a general analysis of how a release could occur and a general description of the potential consequences of an accidental release of dangerous goods and the actions to be taken by the applicant.

Specifying who needs an ERAP

The proposed amendments align with the TDG Act by adding that a person who "handles" or "transports" dangerous goods in quantities or concentrations exceeding the amounts specified in the TDG Regulations are also subject to the requirements of an ERAP. The current TDG Regulations only indicate that a person who "offers for transport" and "imports" these dangerous goods is subject to these requirements.

3. Reducing regulatory burden

Authorized users

An ERAP holder can allow another person to use their ERAP, so that the second person (authorized user) would not need to apply for an ERAP. Under the proposed amendments, the process for adding authorized users would be simplified. The person with the approved ERAP would no longer be required to

A new section would be added to specify that a person may use the approved ERAP of another holder as an authorized user if

When a dangerous good requiring an ERAP is transported by an authorized user, the shipping document would also now be required to indicate the following:

Infectious substances

Currently, infectious substances or cultures of infectious substances listed in the TDG Regulations require an ERAP. Rather than continuing to list specific infectious substances or their cultures that require an ERAP, the proposed amendments would require that the Risk Group 4 human pathogens in Schedule 4 of the Human Pathogens and Toxins Act (HPTA) have an ERAP. As a result, an ERAP would no longer be required for foot and mouth disease virus (FMDV) and variola (smallpox virus) because they are not listed as a Risk Group 4 human pathogen under the HPTA.

Definition of residue

The proposed amendments would add a definition for "residue." Residue would be defined as "the dangerous goods remaining in a means of containment after its contents have been emptied to the maximum extent feasible and before the means of containment is either refilled or cleaned of dangerous goods and purged to remove any vapours." This definition would be closely aligned with the definition in the United States (U.S.) requirements for the transportation of dangerous goods [Hazardous Materials Regulations — Title 49 of the Code of Federal Regulations (49 CFR)].

4. Other amendments (housekeeping)

Table of quantity reporting

Outside the requirements of an ERAP, an emergency report must be made to local emergency response authorities if there is a release or anticipated release of dangerous goods exceeding the quantities specified in the table of quantity for reporting in Part 8 (Reporting Requirements) of the TDG Regulations. This would be corrected to reflect that dangerous goods in Class 3, 4, 5, 6.1 or 8 without an assigned packing group are also subject to the reporting requirements. The table currently does not include these substances.

Terminology for "ERAP implementation"

The proposed amendments would remove the term "activate" with respect to an ERAP and replace it with "implement" to align with the terminology used in the TDG Act.

Changes to shipping document

The proposed amendments would now require "ERAP" or "PIU" to be written before or after the ERAP number on a shipping document.

ERAP phone number

The proposed amendments would now specify that a person can be reached at any time while the dangerous goods requiring an ERAP are in transport. The phone number is indicated on the shipping document.

"One-for-One" Rule

TC has considered the potential impacts of the proposed amendments on administrative burden for businesses, and has determined that the "One-for-One" Rule would apply. While some aspects of this proposal would decrease administrative burden, other aspects would increase it. Overall, the proposed amendments would constitute an "IN" as the net administrative burden costs are higher than the reductions.

Administrative burden costs — summary table
Proposed Element Assumptions Annualized Value (Over 10 Years)
Specifying who needs an ERAP 20 applications submitted every year × 1 hour per application × wage rate of $37.38 per hour $748
Additional ERAP application requirements 10 applications submitted every year × 1 hour per application × wage rate of $75 per hour $750
ERAP implementation report 48 reports submitted every year × 30 minutes per report × wage rate of $50 per hour $1,200
Authorized users 33 shipping documents per year × 15 minutes per shipping document × wage rate of $37.38 $308
Infectious substances 1 application submitted every 5 years × 19 hours per application × wage rate of $50 per hour −$217
Total $2,789

The proposed amendments would result in an administrative burden cost increase, for business, of $19,591 over a 10-year period, or $2,789 per year. For the purposes of offsetting administrative burden costs under the Red Tape Reduction Act, annualized administrative burden costs are converted to 2012 dollars with a present value base year of 2012, and the amendment therefore results in an "IN" of $2,901.

Small business lens

The proposed amendments would not result in nationwide cost impacts greater than $1 million annually, and would not result in costs for small businesses that are disproportionately high. The small business lens would therefore not apply to the proposed amendments.

Consultation

The ERTF held extensive discussions on how to improve the ERAP program. The ERTF included representatives from industry associations, emergency response organizations, First Nations organizations, provinces, municipalities, non-governmental organizations and federal departments. The ERTF's recommendations provided in its final report to TC in 2016 served as the basis for the key elements of the proposed amendments.

Following the submission of the ERTF final report, TC analyzed the recommendations and developed a consultation document laying out policy proposals to be implemented. This consultation document was posted online for comment from March 17, 2017, to May 1, 2017. Key stakeholders including all those with an approved ERAP were notified of the consultations by email. Twenty-nine comments were received by email or uploaded to the consultation website during this time period. Comments were submitted by industry associations, representing the chemicals and petroleum industries, trucking and rail transportation companies, manufacturers, persons with approved ERAPs, as well as provincial and municipal organizations.

TC also held a consultation by teleconference with the Emergency Response Sub-Committee of the Transportation of Dangerous Goods General Policy Advisory Council (GPAC) on April 25, 2017. In addition, the proposed policy was presented to GPAC at semi-annual meetings in May of 2017 and November of 2017.

Stakeholders were generally in favour of the proposed policy. However, the following issues emerged from TC's consultation.

ERAP implementation

Most stakeholders were supportive of specifying the ERAP holder to be responsible for implementing the ERAP, and of having specific criteria that would require its implementation. Initially, TC had proposed the following four criteria:

There was general agreement that the third criterion concerning a release or an anticipated release was practical. However, significant concerns were raised about the remaining criteria.

Stakeholders disagreed that an ERAP should be implemented if a first responder, an authority or a carrier asks for assistance to mitigate a situation. They felt that this criterion was conflicting, as TC previously had explained that parties, such as first responders and municipalities, can call the ERAP telephone number to seek information or have discussions, without the ERAP necessarily being implemented. Some stakeholders also argued that this criterion would take the responsibility for deciding to implement an ERAP away from the ERAP holder.

Other stakeholders did not support the other two criteria: if a transfer is anticipated or required, or if the integrity of the means of containment was compromised. These criteria were criticized for being too general and potentially resulting in unnecessary ERAP implementations. In recognition of stakeholder concerns and considering that the other two criteria already account for anticipated releases, the proposed amendments would not include these criteria. For example, an anticipated release could result from the integrity of the packaging being compromised or if a transfer to another means of containment was needed.

Tiered response levels

Although stakeholders were supportive of the concept of a tiered system of response, a number of stakeholders disagreed with the three-tiered response approach originally considered by TC. Specifically, they were confused by how the responses were categorized into the three tiers. There were also concerns that a significant regulatory burden would result from having three tiers and it was indicated that having two tiers is often common practice in industry. TC agrees that the distinction between the second and third tiers originally considered may not have been clear, and the proposed amendments therefore only include two tiers of response:

Concerning the level of response, stakeholders commented that the requirement for a person to respond within 10 minutes of an emergency response request was unrealistic. Stakeholders recommended a less specific time frame, such as "as soon as reasonably possible." However, TC proposes that including a specific time frame is necessary in order to ensure ERAP holders can provide prompt emergency response advice while the dangerous goods are in transport.

A number of stakeholders commented that response times to send an expert to the location or to mobilize specialized equipment as outlined in the original tiers should take the form of guidance. The time it takes for a response team to arrive at the location of an incident can vary based on the location, weather conditions, and other factors. TC agreed and mobilization response times were removed from the proposed amendments. However, stakeholders would still be required to arrive at the scene of an incident within a reasonable time frame as per the specific incident, otherwise the ERAP may not be considered to have been implemented effectively and may be revoked, in accordance with the TDG Act.

Furthermore, some stakeholders had questions about how coordination of incident response would take place within a tiered response level approach. TC supports the Incident Command System (ICS) approach, which was recommended by the ERTF. TC encourages stakeholders to become familiar with the ICS and to use the ICS Canada programfootnote 4 to ensure coordination of ERAP responses. ICS is a system where multiple authorities and response organizations are integrated into a common organizational structure designed to improve emergency response operations. Regardless of the response tier implemented, resources under the ERAP would complement and engage in the existing ICS structure.

ERAP implementation report

Stakeholders were generally supportive of the ERAP implementation report to CANUTEC, although some disagreed with having to report to CANUTEC when moving from one tier of response to another. However, it is important for CANUTEC to stay abreast of the incident as they can provide advice and assistance if required.

Infectious substances

TC's proposal to require ERAPs for all Risk Group 4 human pathogens set out in Schedule 4 of the HPTA instead of the infectious substances currently listed in the TDG Regulations received mixed responses. Some federal and provincial organizations supported the proposal, while other governmental organizations did not support removing FMDV from the list of dangerous goods requiring an ERAP because of its significant risk to livestock animals.

The proposed amendments would result in a more consistent treatment of infectious substances via direct reference to human pathogens listed under HPTA, as an alternative to the inclusion of specific substances in the TDG Regulations. Currently, the infectious substances that require an ERAP are listed by name in the TDG Regulations. In order to avoid unnecessary amendments in the future as the list changes, the proposed amendments would incorporate the Risk Group 4 human pathogens set out in Schedule 4 of the HTPA by reference on a dynamic basis (as amended from time to time). The HTPA is one of the key pillars of a safety and security program for human pathogens and toxins.

FMDV, which is not in Risk Group 4 under the HPTA, does not affect humans and does not constitute a public safety risk. The frequency of transport of foot and mouth virus culture is extremely low, and the frequency of incidents involving the transport of FMDV cultures is negligible worldwide, including in Canada. Foot and mouth disease virus has only been shown to be airborne when air is exchanged by acutely affected animals. Canada has not had a case of FMDV for almost 50 years. According to the World Organisation for Animal Health,footnote 5 Canada is considered to be an FMDV-free country where vaccination is not practised. Thus, TC does not consider an ERAP for this virus to be necessary or beneficial.

Regulatory cooperation

When dangerous goods are transported in commerce in the United States, they must be accompanied by emergency response information to help local authorities. However, there is no requirement for a federally approved emergency response plan for mitigating incidents involving the transport of dangerous goods in the United States. Canada's ERAP Program is unique worldwide and reflects the Government of Canada's emergency management principle that emergency management is a shared responsibility.

Aligning the definition for "residue" with the definition in the U.S. 49 CFR would ease cross border trade for containers with residual amounts. Containers with residual amounts are not subject to the labelling and placarding requirements. For example, since the definition of residue differs between the United States and Canada, a truck originating in Canada with residual amounts would be exempt from the placards and labelling requirements under the TDG Regulations; however, when the truck enters the United States, it may have to display the proper placards and labelling. Under the proposed amendments, when the container is emptied to its maximum extent, it could be considered residue. Thus, the placarding and labelling requirements for transporting residue would align with those of the United States.

Rationale

The TDG Regulations require updating to improve the ERAP program. The proposed amendments would improve the safety of transporting certain higher risk dangerous goods via preparedness efforts and would address 7 out of the 10 recommendations made by the ERTF concerning the ERAP program. The proposed amendments address the recommendations on clarifying the process of implementing an ERAP, including establishing a tiered response, collecting meaningful data, and clarifying the meaning of any person who responds to an actual or anticipated release. Through activities outside of the proposed amendments, TC has already completed or is in the process of completing the remaining recommendations. The proposed amendments support the overall strategy to promote a safe, secure and efficient transportation system that contributes to Canada's economic development and security objectives. The total annualized costs to stakeholders from the proposed amendments are estimated to be $154,688 annualized over a 10-year period with a 7% discount rate.

1. Clarifying ERAP implementation

Initial notification through ERAP incident report

When a transportation of dangerous goods incident that endangers or could endanger public safety takes place, there is a need to determine whether or not an ERAP needs to be implemented to mitigate the incident. The addition of an ERAP incident report would ensure that the ERAP holder has all the pertinent information of an incident to make an informed decision to implement the ERAP and also allow for a prompt ERAP implementation. It is estimated that approximately 48 additional ERAP incident reports would be required to be submitted per year under the proposed amendments with an overall cost to industry of $3,150 over 10 years.

ERAP implementation

The current TDG Regulations do not specify the process to implement an ERAP, the situations that justify the implementation of an ERAP, or who is responsible for implementing an ERAP. Furthermore, the ERTF noted that there is a lack of understanding among stakeholders concerning ERAP implementation. Based on the ERTF recommendations, the proposed amendments specify the ERAP holder to implement the ERAP if there is an actual or anticipated release that endangers or could endanger public safety.

This amendment would result in negligible costs.

Tiered response levels

The current TDG Regulations do not specify the responses appropriate in mitigating a transportation of dangerous goods incident. The proposed tiers of response are based on ERTF's recommendations (No. 29 and No. 34) and specify appropriate responses and expected timelines.

The new requirement for the ERAP holder to provide technical and emergency response advice within 10 minutes of a request aims to ensure that a qualified person is always available while the dangerous good is in transport.

It is expected that the proposed tiered response levels would result in negligible costs.

ERAP implementation report

There is currently no requirement to inform the Minister that an ERAP has been implemented, which makes it difficult for TC to monitor the situation and ensure that the response is timely, appropriate, safe and coordinated. Additionally, this information gap hinders TC's ability to effectively monitor and detect emerging risks. The ERAP implementation report provides a means of tracking ERAP implementations without significantly increasing the regulatory burden on the ERAP holder, as no paperwork is required. It also provides an opportunity for CANUTEC to provide advice. The information provided to CANUTEC through this report would enable TC to better monitor incident response and to intervene if the response is not appropriate or effective.

TC would have the ability to evaluate whether an incident response took place in accordance with the ERAP and at the appropriate response tier, and would have the ability to revoke an ERAP if an incident response was not effective. For example, revocation could take place if the response of the plan holder is inappropriate (e.g. lack of appropriate resources deployed or lack of emergency response advice provided).

It is expected that the implementation report to CANUTEC would be approximately 30 minutes in length. Costs associated with the ERAP implementation reporting are expected to be low with an estimated cost of $2,283 over the 10-year period.

2. Enhancing emergency preparedness and response

Additional ERAP application requirements

The application requirements specified in the current TDG Regulations lack essential information, which makes it difficult for TC to ensure that applicants have assessed the risks and have the capability and capacity to respond. The additional requirements would ensure that applicants have appropriate emergency response plans, equipment, trained personnel, or agreements with third parties for assistance necessary to respond to an incident and manage its consequences. Requiring applicants to describe the responses to four different scenarios would help them develop a more comprehensive and robust system. The changes to the application process would enhance the preparedness of ERAP holders, which would increase their ability to respond quickly and effectively to emergencies.

The additional requirements would also provide TC with information to help monitor the effectiveness of the ERAP program. TC would be able to collect meaningful data to foster continuous improvement, which would help address ERTF's recommendation No. 40.

Lastly, the current application requirements do not reflect the current business practices as applicants are already providing more information in their application than required.

Since ERAP holders are currently required to renew their ERAPs, it is expected that ERAP holders would need an additional 10 hours to supplement their ERAP to meet the proposed amendments. Therefore, it is estimated that approximately 116 ERAP holders would be updating their ERAPs per yearfootnote 6 with an overall estimated cost to the industry of $711,138 over 10 years.

Specifying who needs an ERAP

The proposed amendments would align with the requirements of the TDG Act by adding that a person who "handles" or "transports" dangerous goods in quantities or concentrations exceeding the amounts specified in the TDG Regulations is also subject to the ERAP requirements. This change would address a situation where multiple shippers transport the same substance in one truck with quantities of dangerous goods from each shipper below the ERAP requirements, but the total quantity transported by the truck exceeds the specified ERAP quantity. Under the current TDG Regulations, it could be interpreted that no ERAP would be required for this situation. The proposed amendments would specify that an ERAP is required for any situation involving transporting dangerous goods in quantities or concentrations requiring an ERAP.

It is estimated that TC currently has 1 062 ERAPs and that the proposed amendments would require the creation of 101 more ERAPs — a 9.5% increase in ERAP applications is expected in the first year after this requirement would come into effect. However, there is a possibility that many of these individuals who are carriers may seek to be authorized users rather than create their own ERAPs, which would reduce the costs of compliance. It is estimated that the average length of time it takes to collect data and information in order to complete the application ERAP is 30 hours. The estimated costs are based on consulting companies' fees, which are a minimum of $75 per hour to prepare an ERAP. Based on the hourly fee and an ERAP renewal rate of once every five years, the total relevant costs are estimated to be $351,299 over the 10-year period.

3. Reducing regulatory burden

Authorized users

This proposal would reduce regulatory burden on stakeholders by simplifying the process to allow a person to use an existing approved ERAP, particularly when multiple parties offer for transport or import dangerous goods of the same commodity. A number of unnecessary requirements would be removed.

Approximately 33 ERAP holders would benefit from not having to notify the Minister of its authorized users resulting in an overall saving to industry of $2,897 over 10 years.

Infectious substances

TC determined that ERAPs should be required for all infectious substances affecting humans that are Risk Group 4 human pathogens in Schedule 4 of the HPTA. A Risk Group 4 substance is defined in the HPTA as

By requiring ERAPs for HPTA Risk Group 4 human pathogens, when a new pathogen is listed it would automatically require an ERAP under the TDG Regulations. This amendment would improve alignment between federal regimes.

With the proposed amendments, an ERAP would no longer be required for FMDV and smallpox virus as they are not listed as a Risk Group 4 substance under the HPTA. This change streamlines the TDG Regulations with the HPTA and focuses on applying the ERAP requirements to only the higher risk dangerous goods affecting public safety such as those listed in Risk Group 4 (e.g. the Ebola virus). The Canadian Food Inspection Agency (CFIA), the federal governmental lead in responding to food safety and animal health emergencies, was consulted during the development of the proposed amendments and indicates that there is no additional risk by removing the ERAP requirement. CFIA has an emergency response plan for all biological shipments in transit. In addition, the packaging used to transport FMDV is designed, tested and manufactured in accordance with national standards.

As part of CFIA's emergency response plan, when infectious substances are shipped, a veterinarian is involved at both the shipping and receiving locations. Further, as a precautionary measure, local and national response teams are alerted when high-risk FMDV specimens are transported. Since CFIA is the only consignor transporting FMDV, appropriate measures are in place regardless of an ERAP.

The HPTA lists smallpox virus as a prohibited human pathogen; therefore, all activities (e.g. transporting) in relation to smallpox virus are forbidden. Thus, there is no need for an ERAP for smallpox virus.

Overall, given that only one ERAP exists for the purpose of transporting FMDV cultures, the associated savings would be negligible.

4. Other amendments (housekeeping)

A number of minor updates, corrections and changes would be made to improve the readability of the TDG Regulations to help stakeholders comply with the Regulations. Minor updates would also be made to definitions to reflect current practices in transporting dangerous goods. In addition, changes would be made to improve the alignment of terminology between the TDG Act and the TDG Regulations and reduce confusion for ERAP holders. For instance, the proposed amendments would align with the requirements of the TDG Act by replacing the term "activate" with "implement" as there are no references to the "activation" of an ERAP in the TDG Act. The term has been used historically when referring to a situation where actions must be taken to implement an ERAP. The ERTF noted that the circumstances and meaning of "activation" have been raised to be problematic and unclear. The proposed amendments provide consistency between the Act and the Regulations.

The "ERP" acronym is outdated and is often confused with other emergency response plans that are not approved ERAPs. Removing "ERP" from the shipping document will reduce confusion between an ERAP and an emergency response plan.

The proposal to introduce the definition of "residue" would align with the definition in the U.S. 49 CFR and reduce confusion.

The proposed amendments to require that a person who has the ERAP can be reached at any time while the dangerous goods are in transport also address an issue raised by the ERTF.

Overall, the housekeeping changes would result in negligible costs.

Implementation, enforcement and service standards

The proper implementation of regulatory amendments is a key aspect of the regulatory life cycle. Once regulatory amendments become law, the Transportation of Dangerous Goods 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 following:

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 proposed amendments would assist Transportation of Dangerous Goods inspectors and Remedial Measures Specialists (inspectors who specialize in ERAPs) in verifying compliance with the requirements of the TDG Act and TDG Regulations regarding ERAPs. Information would be provided to these inspectors to keep them updated and aware of the proposed requirements.

The TDG Act requires that before a person offers for transport, imports, handles or transports certain dangerous goods, the person must have an approved ERAP. Dangerous goods may not be imported, offered for transport or handled until the ERAP is approved by the Minister. A person who contravenes a provision of the Act could be subject to fines up to $50,000 for a first offence and up to $100,000 for subsequent offences, and/or imprisonment of up to two years.

The TDG Act provides the Minister with the authority to direct an ERAP holder to implement the plan as approved, within a reasonable time period that should be specified. Further, it is an offence to fail to comply with such direction.

Furthermore, in accordance with the TDG Act, the Minister may revoke an approval of ERAP if he has grounds to believe that there has been a release of dangerous goods to which the plan applies, and the plan was not used appropriately to respond to the actual or anticipated release.

Contact

Geneviève Sansoucy
Chief
Regulatory Development Division
Transportation of Dangerous Goods Directorate
Department of Transport
Place de Ville, Tower C, 9th Floor
330 Sparks Street
Ottawa, Ontario
K1A 0N5
Email: TC.TDGRegulatoryProposal-TMDPropositionReglementaire.TC@tc.gc.ca

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council, pursuant to section 27footnote a of the Transportation of Dangerous Goods Act, 1992footnote b, proposes to make the annexed Regulations Amending the Transportation of Dangerous Goods Regulations (Emergency Response Assistance Plan).

Interested persons may make representations concerning the proposed Regulations within 60 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Geneviève Sansoucy, Regulatory Affairs Branch, Transportation of Dangerous Goods Directorate, Department of Transport, Place de Ville, Tower C, 9th Floor, 330 Sparks Street, Ottawa, Ontario K1A 0N5 (fax: 613-993-5925; email: TC.TDGRegulatoryProposal-TMDPropositionReglementaire.TC@tc.gc.ca).

Ottawa, June 21, 2018

Jurica Čapkun
Assistant Clerk of the Privy Council

Regulations Amending the Transportation of Dangerous Goods Regulations (Emergency Response Assistance Plan)

Amendments

1 (1) The definition emergency response assistance plan or ERAP or ERP in section 1.4 of the Transportation of Dangerous Goods Regulationsfootnote 7 is repealed.

(2) Section 1.4 of the Regulations is amended by adding the following in alphabetical order:

ERAP means an emergency response assistance plan. (PIU)

residue means the dangerous goods remaining in a means of containment after its contents have been emptied to the maximum extent feasible and before the means of containment is either refilled or cleaned of dangerous goods and purged to remove any vapours. (résidu)

2 Subsection 1.34(2) of the Regulations is replaced by the following:

(2) When substances that have a flash point greater than 60°C but less than or equal to 93°C are transported in accordance with subsection (1), sections 5.14.1 to 5.15.6 and 5.15.11 of Part 5 (Means of Containment) do not apply in respect of a railway vehicle that transports the substances, and an emergency response assistance plan is not required for the substances under paragraph 7.2(1)(f) of Part 7 (Emergency Response Assistance Plan).

3 Paragraph 1.44(a) of the Regulations is repealed.

4 Subsection 3.5(4) of the Regulations and the italicized text after it are replaced by the following:

(4) Despite paragraph (1)(d), if the means of containment contains a residue, the words "Residue — Last Contained" or "Résidu — dernier contenu" may be added before or after the description of the dangerous goods. These words must not, however, be used for dangerous goods included in Class 2, Gases, that are in a small means of containment or for dangerous goods included in Class 7, Radioactive Materials.

5 (1) Subsection 3.6(1) of the Regulations is replaced by the following:

(1) In addition to the information required by subsection 3.5(1), the shipping document for dangerous goods for which an approved ERAP is required under subsection 7(1) of the Act must include

(2) The italicized text after subsection 3.6(2) of the Regulations is struck out.

6 The italicized text after paragraph 4.17(1)(b) of the Regulations is struck out.

7 Part 7 of the Regulations is replaced by the following:

PART 7

Emergency Response Assistance Plan

7.1 Application and Interpretation

This Part applies in respect of

7.2 Quantities or Concentrations of Dangerous Goods

(1) For the purposes of subsection 7(1) of the Act, an approved ERAP is required for the following quantities or concentrations of dangerous goods:

(2) Any substance that would require an ERAP if its classification were determined in accordance with Part 2 (Classification) requires an approved ERAP if its appropriate classification in the ICAO Technical Instructions, the IMDG Code or the UN Recommendations is to be used under subsection 2.2(4).

7.3 Application for Approval of ERAP

(1) A person must apply to the Minister in writing for the approval of an ERAP.

(2) The application for approval must be signed by the applicant and must include a copy of the ERAP and the following information:

7.4 Application for Approval of ERAP – Emergency Response Contractors

A person who is not required to have an approved ERAP under subsection 7(1) of the Act, but who is able to take measures to respond to a release or anticipated release of dangerous goods, may apply to the Minister in writing for the approval of an ERAP. The application must include a copy of the ERAP and the information referred to in paragraphs 7.3(2)(a), (b), (d) and (g) to (l).

7.5 Application for Approval of Changes to Approved ERAP

(1) A person with an approved ERAP must, as soon as feasible, apply to the Minister in writing if any of the information relating to the ERAP referred to in subsection 7.3(2) has changed since its approval.

(2) The application referred to in subsection (1) must be signed by the applicant and include

7.6 Request for Review of Decision to Refuse or Revoke ERAP Approval

(1) A person may request a review of the decision to refuse or revoke an ERAP approval within 30 days after being notified of the decision.

(2) The request must be made to the Minister in writing and must include the reasons why the decision should be revised.

7.7 Authorization to Use Approved ERAP

For the purposes of subsection 7(1) of the Act, a person may use, as an authorized user, the approved ERAP that another person is required to have if

7.8 Implementation of Approved ERAP

(1) A person with an approved ERAP must implement it to tier 1 or tier 2 in response to a release or anticipated release of dangerous goods that endangers, or could endanger, public safety.

(2) A person who implements an approved ERAP to tier 1 must

(3) A person who implements an approved ERAP to tier 2 must

(4) A person must not prevent another person who has an approved ERAP from taking emergency measures in response to a release or anticipated release.

7.9 Compensation for Authorized Implementation of Approved ERAP

(1) If a person implements an approved ERAP in accordance with paragraph 7.1(b) of the Act, the following expenses are authorized for the purposes of compensation under section 7.2 of the Act:

(2) The following expenses are not authorized for the purposes of compensation under section 7.2 of the Act:

7.10 Compensation Limits

(1) Compensation under paragraph 7.9(1)(a) is limited to the compensation that would be paid in relation to the dead, disabled or injured person if the person were insured under

(2) Compensation under paragraph 7.9(1)(h) in relation to the replacement of the items listed in subparagraphs 7.9(1)(i), (ii) and (iii) is limited to the cost of an item of equivalent capability and quality.

(3) Compensation under paragraph 7.9(1)(i) in relation to damaged property is limited to the fair market value of the property immediately before it is damaged by the person who implements the approved ERAP.

7.11 Claims for Compensation

Claims for compensation must be submitted with supporting documentation to the Minister no later than three months after completion of the emergency response work.

8 The reference "III" in the column entitled "Packing Group or Category" of the table to section 8.2 of the Regulations opposite the reference "3, 4, 5, 6.1 or 8" in the column entitled "Class" is replaced by "III, or without packing group".

9 Paragraph 8.7(q) of the Regulations is replaced by the following:

10 The Regulations are amended by adding the following after section 8.19:

ERAP Reports

8.20 ERAP Incident Report

A person who is required under subsection 18(1) of the Act to report a release or anticipated release of dangerous goods in respect of which an approved ERAP is required under subsection 7(1) of the Act must, as soon as feasible after the release or anticipated release, make an ERAP incident report by telephone to the person at the ERAP telephone number required to be included on the shipping document under paragraph 3.6(1)(b).

8.21 Information to Be Included in ERAP Incident Report

An ERAP incident report referred to in section 8.20 must include the following information:

8.22 ERAP Implementation Report

Each time a person implements an approved ERAP to tier 1 or tier 2, the person must, as soon as feasible, make an ERAP implementation report to CANUTEC, at 1-888-CANUTEC (1-888-226-8832) or 613-996-6666.

8.23 Information to Be Included in ERAP Implementation Report

An ERAP implementation report referred to in section 8.22 must include the following information:

11 Subparagraph 9.1(1)(a)(iv) of the Regulations is replaced by the following:

12 Paragraph 9.2(1)(a) of the Regulations is replaced by the following:

13 Paragraph 9.3(1)(a) of the Regulations is replaced by the following:

14 Subparagraph 10.1(1)(a)(iv) of the Regulations is replaced by the following:

15 Paragraph 10.2(1)(a) of the Regulations is replaced by the following:

16 Paragraph 10.3(1)(a) of the Regulations is replaced by the following:

17 The description of "Col. 7" under the heading "LEGEND" of Schedule 1 to the Regulations and the italicized text after it are replaced by the following:

ERAP Index. This column gives the ERAP quantity limit above which an approved ERAP is required for the dangerous goods in accordance with section 7.1 of Part 7 (Emergency Response Assistance Plan).

The quantity limit is expressed in kilograms for solids, in litres for liquids, and, for gases, as the capacity in litres of the means of containment. For Class 1, Explosives, the quantity is expressed either in kilograms of net explosives quantity or, if the explosives are subject to special provision 85 or 86, number of articles.

For dangerous goods included in Class 3, Flammable Liquids, with the UN number UN1170, UN1202, UN1203, UN1267, UN1268, UN1863, UN1987, UN1993, UN3295, UN3475 or UN3494, see paragraph 7.2(1)(f) of Part 7 (Emergency Response Assistance Plan), which sets out the ERAP requirements for those dangerous goods. For Class 6.2, Infectious Substances, see paragraph 7.2(1)(g) of Part 7 (Emergency Response Assistance Plan), which sets out the ERAP requirements for certain human pathogens.

The ERAP quantity limit applies to the row in this Schedule in which it appears. For example, UN1986 may require an ERAP for Packing Group I but not for Packing Group II or III.

If no index number is shown, an ERAP is not required unless the dangerous goods are subject to special provision 84 or 150.

18 Special provision 84 of Schedule 2 to the Regulations and the italicized text after it are replaced by the following:

84 An emergency response assistance plan (ERAP) is required for the dangerous goods referred to in paragraph 7.2(1)(g) of Part 7 (Emergency Response Assistance Plan).

UN2814

19 Special provision 150 of Schedule 2 to the Regulations is replaced by the following:

150 An emergency response assistance plan (ERAP) is required for the dangerous goods referred to in paragraph 7.2(1)(f) of Part 7 (Emergency Response Assistance Plan).

20 The Regulations are amended by replacing "Director General" with "Minister" in the following provisions:

Transitional Provision

21 A person may, for a period of six months that begins on the day on which these Regulations come into force, comply with the Transportation of Dangerous Goods Regulations as they read immediately before that day.

Coming into Force

22 These Regulations come into force on the day on which they are published in the Canada Gazette, Part II.