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The Review of the TDG Act

The Transportation of Dangerous Goods Act, 1992, will be formally reviewed. In preparation for this process, we have begun a public consultation period aimed at identifying problems that stem from the Act or from its application.

All stakeholders may inform us of problems they have identified or comment on those that have been identified by others.

In this document, we explain the disctinction between the Act and the Regulations and we include a brief history. Then, we explain the steps leading to a new or modified TDG Act in order to guide stakeholders who may want to offer comments.

Finally, we provide questions that may help you prepare your comments.

Act or Regulations?

The Act defines the field of application of the requirements, the prohibitions and the authority to make regulations. The field of application indicates to whom the Act applies; if you are outside the field of application, then the requirements (including the regulations) do not apply to you. The prohibitions define the activities that are subject to the penalties described in the Act. To keep the Act clear, simple and stable, the Act defines activities for which the technical requirements are in separate regulations.

The TDG Act is rather short (22 pages). Links on the Review Web Page refer you to the complete text. There is also a Web Page with a brief (very brief) explanation of the sections of the Act: it is included in the presentations made at the consultation meetings in the Spring. As well, an explanatory booklet titled "Behind the Words" is available as a reference tool.

The TDG Regulations include the technical requirements and references to standards, parts of which are made compulsory by Regulation or directly by the Act. The Regulations are complex because they must cover all possible cases in transport, in whatever mode of transport, for millions of chemical compounds. The Regulations are dynamic; they are often modified to keep up with the ever increasing number of chemicals, means of containment, technological advances and international recommendations with which we seek harmonization.

The TDG Regulations are large (722 pages). There is a continuous review process for the regulations; this process is independent from the review of the act.

History (very brief)

In November 1979, the second¹ most important dangerous goods transportation accident in Canada occurred in Mississauga, Ontario. A freight train derailed in a densely populated area and a dozen different dangerous goods were released.

Despite the importance of the accident, no one died. However, over 200,000 people were evacuated for several days.

The first TDG Act was created in 1980. Its area of application was described in terms of the National Transportation Act and was intended to cover "surface" transportation, which is road and rail.

The first TDG Regulations were published in 1985. The Regulations were often modified; however, in general, they appeared to work. The provinces, many of which already had legislation for road transportation, agreed that the federal government should be the coordinator. Thus, the "federal" TDG Regulations were prepared in cooperation with the provinces and were then adopted by them through their own provincial statutes.

The Act of 1980, however did not work as well. In fact, near the end of the 80's, so many cases had been lost in court that not much was left of the Act. During the consultation period of 1990-92, stakeholders identified many innovative ways to solve the problems.

On June 23, 1992, the new TDG Act was given Royal Assent and replaced the old Act of 1980. The new Act was written in a way that was easier to understand; it used a clearer language. Another advantage was that the new Act was one of Public Safety, taken under the Criminal Law Head of Power of the Constitution and it had its own field of application.

In 1994, the government launched an ambitious regulatory review program to cover all regulations in Canada. The TDG Regulations were subjected to the process. Many requirements were revoked (they did nothing for public safety) or modified; some were added.

Meanwhile, those responsible for the TDG Regulations had begun to rewrite the regulations as part of a pilot project called "simple language." Later, formal writing and formatting tools were added to the project and it was renamed "Clear Language." The new regulations were to be ready in 1996.

By 1998, it was clear that the 1996 deadline had been too optimistic. The original project of rewriting the regulations without changing the requirements was no longer viable. We needed to integrate changes that had occurred since the 1994 review and modernize the requirements in light of the increase, in number and complexity, of chemicals and technological tools.

Finally, a near final version was proposed in August 2000, in Part I of the Canada Gazette. A year of public consultation followed on the proposed text. On August 15, 2001, the "final" version was published in Part II of the Canada Gazette and the new regulations came into force in August 2002.

Since then, there have been three amendments to the Regulations, including one that was introduced in August 2002, to modify the new wording:

1. Aug. 28, 2002: corrections to the text, definitions, rewrite of some sections.
2. Aug. 13, 2003: limited quantity, consumer products, National Defence activities.
3. Dec. 17, 2003: determine (and modify) the application of ICAO technical instructions for transport by air.

In addition, there are three proposals being considered:

1. Standards - CGSB-43.125, CSA-B339, B340, IMDG Code (transport by sea)...
2. Standards - CSA-B620, B621, B622...
3. Explosives, storage of dangerous goods incidental to transport, clarify the definition of consignment, clarify Part 4...

However, these amendments deal with the Regulations and not the Act. Before looking again at the Act, let us look at other distinctions.

Safety or Security?

Safety: A collective effort to avoid negative outcomes. The more requirements are known, the better safety is served (everyone knows what to do). In French: sécurité.

You have a safety problem when everyone intends to do the right thing, and something goes wrong.

Security: What must be done to prevent one person from triggering the negative outcomes on purpose. Sometimes, we must hide certain things (for example, passwords must be kept secret). In French: sûreté.

You have a security problem when one person intends to do the wrong thing.

The similarity between the words "security" and "sécurité" causes confusion. There are some government programs where the concept of security has been translated in French as "sécurité." We will try, during this review, to use the words as defined above (Safety = sécurité; security = sûreté).

We were already preparing to review the TDG Act (as was promised in Parliament in 1992) when the events of September 11, 2001 occurred. The review was launched quietly in late 2001 with the emphasis on security issues. The review was expanded in 2003 to include safety issues.

The TDG Act

Official title: An Act to Promote Public Safety in the Transportation of Dangerous Goods. Short title: Transportation of Dangerous Goods Act, 1992. The date is part of the short title.

The text of the Act can be found on Transport Canada's Web site. In addition, there is a link to an explanatory booklet on the Act titled "Behind the Words". There are also links that will give summaries of the presentations made in the Spring. These presentations give an idea of the structure of the Act.

In Canada, there are 14 regulations on TDG (1 federal, 10 provincial, 3 territorial). All include the same requirements. Thus, a person responsible for a consignment of dangerous goods does not have to worry, in general, about which level of government has jurisdiction: the requirements are the same.

The same does not apply to the TDG Act. There are 14 different enabling pieces of legislations (acts or statutes). The federal Act is of a "criminal" nature. Most provincial laws are "transport" law, while some are environmental (e.g. Manitoba) or public safety (e.g., Alberta).

Our review only deals with the federal TDG Act.

How to amend an Act

Starting from the end: an act is amended when the act that modifies it come into effect. The effective date is usually determined when the modifying act receives Royal Assent, normally given by the Governor General or a representative. The Royal Assent comes after the act has been passed by the House of Commons and the Senate. While being passed, the Bill is given three readings in each House and, near the second reading in each House, it is reviewed by a committee. Before or during this review, the legislative process requires a formal public consultation.

Before getting there, there has to have been a Bill prepared, then tabled in one of the two Houses. The Bill is prepared from instructions given by the Cabinet. This means that the Cabinet of Ministers would have approved the preparation of the Bill after studying a Memorandum to Cabinet presented by one (or many) Minister(s).

The Minister will not present the Memorandum to Cabinet unless someone has convinced the Minister that the TDG Act needs to be amended, that the amendment satisfies that need and that it appears acceptable to all, or most, of the stakeholders. In order to achieve this consensus, we must have consulted people who are subject to the Act, people who benefit from the Act, provinces, agencies involved in the administration of the Act, other federal departments, etc. We must also convince the Minister that our analysis covered all known problems, alternative solutions and consequences of proposed solutions.

Consultation

The consultation process that is currently underway is meant to find the information needed for the analysis that will precede the preparation of the Memorandum to Cabinet. The nine step process, described on the Web, serves to find problems and to seek ideas on solving them. We also need to understand the impact of the alternatives in order to be able to select the best solution(s).

The consultation process was designed to work using only the Web, electronic mail, normal mail and telephone. Meetings are designed to help participants better understand what is being revised and prepare comments that will help the decision-makers.

All the information required for the review is found on the Web:

• List of issues;
• Presentations and comments given at the meetings;
• Summaries of meetings; and
• Links to supplementary information

Issues

Issues raised by the stakeholders are called "questions" in French because they are the questions that stakeholders are asking the decision-makers: "How do you intend to solve the following problem?"

Because we only have forty-some issues, there is no need to rank them. It is possible to cover all of them during the consultation period. The number assigned to an issue is, therefore, not an indication of priority.

However, we did establish categories:

1. Security
2. New concepts
3. Existing concepts (correct the Act)
4. Technical problems (wording)
5. Automatic issues (government policies)
6. Outside scope of review (regulations, other acts).

Analysing the identified issues

For each issue identified during the consultation, we must ask ourselves:

1. Must we amend the TDG Act to solve the issue? Are there other means that could solve the issue as efficiently or even better?
2. If the Act is amended, how should it be amended? We are seeking ideas and options. It is acceptable to send us comments like "I believe that the Act should not be amended; however, if you do amend it, consider the following points..."
3. What are the consequences of amending the Act? ...Of not amending it?

The issues already listed have been identified by the stakeholders (e.g., the public, regulated persons, inspectors, police officers, firefighters, carriers, travellers, departments). The fact that an issue is listed does not mean that the Act will be automatically amended. If the issue is on the list, it simply means that at least one person identified it as a problem and it is worth discussing.

The team running the consultation does not have the mandate to filter comments. We may categorize them according to the list above or send them to an appropriate authority (e.g., regulations, another program).

When the Review Team begins its work on the TDG Act in the Fall, it will have all the comments received. The Review Team will consist of TDG Directors and the Director General. The Review Team will work with the provincial representatives and the TDG General Policy Advisory Council that is established under the TDG Act.

A. Security

Do we want to deal with TDG security issues in the TDG Act, or should they be included in another act (e.g., Criminal Code, a new transportation security act, existing modal acts, or a national security act outside Transport).

If included in the TDG Act, do we want two levels of requirements; one level for consignments that require an ERAP and another level for the rest of the dangerous goods? If yes, should the security requirements be integrated with the safety requirements (i.e., one ERAP covering safety and security)?

Requirements put in place by the United States of America may have an impact on our requirements and on the timeline needed to set them up.

B. New concepts

Should we extend the field of application to cover activities that are not presently covered? Should we create a new type of permit to replace (or supplement) the use of estoppels? How could we, in an Act, encourage voluntary efforts that go beyond the legal obligation, without losing the obligations that bind others?

Should the act impose compliance with some parts of the standards? Can we allow the seizure (for analysis) of means of containment that are not in "non-compliance"?

What are the advantages and disadvantages (especially costs) of creating a registry of persons allowed to participate in regulated TDG activities?

Should the TDG Act prohibit actions that are already forbidden by other laws of general application (e.g., vandalism).

C. Existing concepts

The goal here is to resolve problems that, we thought, had been fixed in the TDG Act of 1992. For example, "misleading safety marks" is fast becoming an important issue in this review. The intent of the legislator seemed clear in 1992. Since then, some court decisions, taken while hearing cases under provincial jurisdiction, have shed a new light on the words of Section 6 in the TDG Act. Should the Act be amended to reaffirm the original intent? Should we, instead, modify the original objective and, if so, what should be the new objective of Section 6?

D. Wording

We had reserved category D for issues of wording. We noticed that when someone proposed a change of wording, it was either to resolve an issue of category C (the words have a meaning in 2004 that differs from the meaning intended in 1992) or of category D (change the word to change the meaning of the Act). That is why that category has not changed much since 2003.

E. Automatic issues

When preparing a Memorandum to Cabinet, there are issues that must be addressed even if no one has raised them. These issues are taken from priorities imposed on all programs by government. For example, whatever the topic covered in a Memorandum to Cabinet, one must address the impact that a decision could have on the ability of Canadian industry to do business on international markets.

F. Outside scope of review

This is where we gather the issues that do not appear to deal with the Review of the TDG Act, often because the problems raised stem from other acts or programs. Instead of hiding these issues, we keep them in category F.

Stakeholders can send us comments explaining why they believe the issue is not outside the scope and, sometimes, we agree.

Over the last year, three issues have moved from F (two B and one C). We continue to accept comments regarding issues in F and we will pass them on to the Review Team, as will be done for all other issues.

The future

Public consultation meetings will continue until November 9, 2004. Then, we will compile all comments and present them to the Review Team in late November. The Review Team will do its analysis during the winter months.

From the recommendations of the Review Team, we will prepare the first draft of a Memorandum to Cabinet. This first draft could be ready as early as April 2005. In Canada, a Memorandum to Cabinet is automatically Secret (even as a draft), and remains Secret forever.

Therefore, there will be a time period, from the drafting of the Memorandum to Cabinet to the tabling of a Bill in Parliament, where the Web site for the review will not change. We encourage you to send us your comments well before that pause.

If things progress well, a Bill could be tabled as early as September 2005, leading us to believe that the TDG Act could be amended as early as January 2006.

This timetable is optimistic. It could be delayed by a number of events, including general elections should they become necessary.

On the other hand, it could be accelerated, at least for security issues, depending on measures that could be put in place by the United States or by other countries.

To participate

The purpose of this consultation is to identify problems and to generate ideas to solve them. This is not a game of numbers. What is important are the ideas.

A person may offer many solutions to the same issue, even if this person believes that the best solution is to not amend the Act.

Please remember you can all send comments, even if you do not attend the meetings and you may send comments more than once. You may even change your mind during the consultation period. We expect to, because we expect the consultation process to improve the final product.

Early comments have more impact than late comments.

To send us your comments