TDG
TDG International Harmonization 2017 (TDG SOR/2017-137)

It’s Here, It’s Here! Feast Your Eyes on TDG International Harmonization 2017

(with apologies to “Genie” – aka the late Jim Backus …)

As predicted in last week’s blog on adoption of 2016 editions of CGSB standards, and reviewed in the Canada Gazette I (CG I) blog referenced therein, today’s Canada Gazette II (CG II) formalizes a variety of changes to the Transportation of Dangerous Goods Regulations (TDGR).

The amendment, despite the “International Harmonization” working title is officially referenced as SOR/2017-137 and essentially follows the CG I proposal reviewed in earlier blogs. However, as expected, there have been some changes.

See our earlier articles on the CG I proposal:

An observation on the contents of this amendment – it appears that a rumoured dropping of italicized “guidance” text has begun in SOR/2017-137. The TDGR have been somewhat unique in this approach, but the word is that it is not in keeping with justice department philosophy that guidance material should be separate from the mandatory regulatory text – e.g. in an FAQ or other separate guidance document. This amendment incorporates several instances into the regulatory text and removes several others. Fortunately, the very useful listing of UN numbers pertaining to SP are retained at the end of each SP.

By the Numbers – TDG Parts Amended

PART 1: Interpretations, General Provisions, Special Cases

Standards and Other Regulations

Ambulatory references (i.e. “as amended” or “current” editions rather than a specific date) of specified standards will now be the official versions referenced in the Table in section 1.3.1. Also referred to as “dynamic” references, the requirement to use the latest version will apply to those issued by CGSB (except CGSB-32.301, withdrawn and no longer being updated) and CSA on packaging design and/or manufacture and/or use. Also formalised in this section. The same referencing applies to 49 CFR, ICAO TI and Supplement, the IMDG Code, and the UN Recommendations and Manual of Tests & Criteria.

ASTM, CGA, ISO, MIL, TP ULC, standards, and OECD Guidelines, however, still invoke specific editions (i.e. “static” references) as the officially recognised version for the TDGR. It seems strange that TP14850 and TP14877- both issued by Transport Canada- remain in the static category.

The amendment provides a six month transition period to comply with a new edition of an “ambulatory” standard.

Definitions and Special Cases

Changes, additions and deletions have occurred in these sections as a result of the ambulatory references and/or redundancies in the updated Schedule 2 Special Provisions. A new Special Case 1.50 recognizes that propane cylinders used in hot air ballooning may be filled to a higher volume and replaces existing equivalency certificates. Special Cases 1.29 (DG in instruments or equipment) and 1.34.1 (gasoline to operate instruments or equipment) have been repealed.

PART 2: Classification

Flammable Liquids – Re-assignment of PG for Viscous Liquids

The conditions for “downgrading” the Packing Group (PG) for viscous liquids has been revised in keeping with current UN criteria.

Flammable Solids/Self-Reactive Substances

Criteria have been added to classify self-accelerating polymerizing substances to Class 4.1. Test criteria for addition of these substances are analogous to those for determining categories of organic peroxides- i.e. Manual of Tests protocol for SADT (self-accelerating decomposition temperature) is used to determine SAPT (self-accelerating polymerization temperature) for self-polymerizing substances. Four new UN numbers under Class 4.1 have consequently been added to TDGR Schedule 1.

Other Classification Changes

Test protocols for Class 5.2, 8, and 9 (lithium batteries) have been updated or clarified to harmonize with current UN protocols. The entries in Schedule I for UN2977, UN2978 (Uranium hexafluoride) and UN2815 (n-aminoethylpiperazine) now include a subsidiary Class 6.1 hazard. However, Uranium hexafluoride in excepted packages (UN3507) now has a primary hazard of Class 6.1 (with Class 7 & Class 8 being subsidiary).

PART 3: Documentation

The only direct amendment to this part is in the reference to the ICAO TI certification statement. However, changes in Schedules can affect required documentation – e.g. Special Provision (SP) 34 no longer requires a document. This reinforces the wisdom of always reviewing SP associated with a Schedule 1 entry.

PART 4: Safety Marks

Class 9

Transport Canada is updating to mirror requirements in other regulations regarding labelling (and perhaps placarding) of lithium batteries- the new Class 9 Lithium Battery label is invoked in new 4.10(1)(b.1).

New lithium battery label

The deadline of December 31, 2018 to complete the label changeover is in new SP159.

A change from the CGI proposal implies that where placards are required a standard Class 9 placard continues to be used, however the CGII expression may still need clarification. CGI proposed amending Part 4 (4.15 & the Appendix) and adding SP 159 to require the Lithium Battery Class 9 to also be used for placarding (unlike 49 CFR and the IMDG Code). Although reference to its use for placards have been dropped in SOR/2017-137 Part 4 amendments, it remains a stipulation in SP159.

Class 9 TDG label

In each case Canada is conforming to the UN convention of underlining the number “9” at the bottom of labels and placards. The underlined “9” on the regular Class 9 placard is mandatory following the general six-month transition date of January 12, 2018.

Lithium Battery Handling Mark

New Lithium Battery Mark and Pictogram

The 2017 version of the lithium battery handling mark is officially adopted in SP 34, replacing the requirement for equivalent wording on exempt packages and shipping documents (no longer require a document for SP 34 exempted). The mark may be used now, but becomes mandatory, as indicated in amended SP 34(5) after a transition period ending on December 31, 2018. Until then the previous requirements may continue.

Overpack Marking

In addition to the CG I intent, in keeping with other regulations, of not requiring an “Overpack” mark when required DG markings are visible- and specifying a 12 mm letter height- additional clarification has been provided. A safety mark must be visible pertaining to “each class” overpacked- i.e. in the case of a stretch-wrapped skid one needn’t have to see each individual package.

Other Safety Marks

The “Fumigation Sign” has been modified to include the date of ventilation as adopted in Part 4.21 in 2014. A typo, implying the entry of “UN3475” instead of “3475” on placarding in Part 4.19, has been corrected. The word “toxic” is removed from “inhalation hazard” in 4.23, in keeping with 49CFR harmonization. Similarly the letter size is specified in 4.18.2 (anhydrous ammonia) and 4.23 depending on the type of container.

PART 5: Means of Containment

Updated Standards

The changes in sections in “current” editions and their content adopted in Part 1 results in edits to 5.6, 5.12, 5.14, 5.15 and 5.16; including the removal of 5.16.1 and 5.16.2.

Crude Oil Clarification

The changes to rail car requirements are supplemented by a clarifying regulatory interpretation of “Crude Oil, Oil and Refined Petroleum Products in a new 5.1.

US Harmonization

In addition to reflecting updated standards, Part 5.10 now includes reference to accepting US-qualified cylinders.

Part 6: Training and Part 7: ERAPs

No direct changes to the sections in this amendment. New standards, reporting, and other changes may affect company-specific training. None of the new Schedule 1 listings have ERAP triggers.

Part 8: Reporting

ICAO “Dangerous Goods Occurrence” reporting requirements have been added.

Modal Updates

All modes (Parts 9-12) now incorporate the requirement for “consignor’s certification” on shipping documents.

Part 9: Road

Part 9.1 is expanded to include reciprocity for US special permit exemptions, to first destination.

Note: “exceptions” are still excluded from reciprocity if they are not mirrored in the TDGR.

Part 10: Rail

Part 10.1 as for Part 9.1. Also 10.1.1 is added to allow reciprocity with 49CFR for “One-time Movement” of non-conforming means of containment.

Schedules

Schedule 1: Classes 1-9, Shipping Descriptions

New UN numbers have been added for: Class 1.4C Rocket Motors (UN0510); Class 4.1 Polyester Resin Kits, solid based (Class 4.1); moving “engines” shipped uninstalled from UN3166 (Class 9) and re-assigning them to UN3528, UN3529 or UN3530 (Classes 2.1, 3 or 9) depending on the fuel; four types of Class 4.1 Polymerizing Substances (solid or liquid, stabilized or not) using UN3531 to UN3534- assigned to PG III.

Alternate shipping names have been added to UN0014, UN3151 and UN3152.

Various changes have been made to SP references in Column 5 resulting from additions/changes arising from the harmonization process.

93 existing UN number entries have had modifications to referenced SP.

Schedule 2: Special Provisions

In addition to specific SP referenced in earlier paragraphs above, there have been removal of some Schedule 2 SP that are now covered in updated standards or formalized in other parts.

New SP have been added for new listings and other changes.

Changes involving the addition of new SP include:

  • clarification of the shipping name for UN3314 (SP152);
  • stabilization considerations for various DG (SP155);
  • clarifying vehicle requirements after the separation of “engines” from UN3166 (SP 156 and 157);
  • an exemption for adsorbed gases (SP158); the extension for implementing the lithium battery Class 9 label/placard (SP159);
  • an exemption for celluloid (UN2000), formed into table tennis balls (SP160);
  • a requirement to cool aluminum smelting/remelting by-products (UN3170) before packaging into ventilated, water-resistant containers (SP161);
  • specifying the conditions for Uranium hexafluoride in “excepted package” (UN3507) markings (SP162);
  • exemptions from training, reporting for matches (UN1944 and UN1945) in outer packaging of 25kg or less gross mass (SP163);
  • restrictions on packing certain other DG with specified (UN2814, UN2900, UN3373) DG in Class 6.2 (SP164);
  • allowing empty UN3373 packaging to be marked without being considered misleading (SP165);
  • requiring specified UN numbers with inhalation toxicity to be re-assigned to generic “Toxic Inhalation …” names/UN numbers (SP166);
  • clarification of the conditions for allowing use of “DG in Apparatus/Machinery” (UN3363) and the applicable exemptions (SP167);
  • and an exemption from ERAP/SP23 requirements for lower sulphur dioxide contents of fuming sulphuric acid (UN1831)

Schedule 3

Changes have been made to Schedule 3 as a result of Schedule 1 and IMDG updates.

New entries for 13 shipping names (2 of which are assigned “P” in Column 4) and 18 technical names appear in Schedule 3 as a result of Schedule 1 and IMDG updates.

As well 56 existing entries, representing 42 shipping names, are now flagged as marine pollutants by addition of “P” to Column 4.

Transition:

The rail car provisions referenced in section 163 of the CGII notice are in effect on publication (i.e. July 12, 2017). Except as noted regarding SP34 and SP159 above (Lithium Battery Class 9 and handling mark), the deadline to comply with the remaining changes is January 12, 2018.

The official published version from Canada Gazette II is available here »

Transport Canada Clear Language Reference Material »


HO! HO! HO! TDG Under the Tree – Proposed Harmonization

Transport Canada Prepares to Adopt 2016 Updates to Standards

TDG
Transport Canada Prepares to Adopt 2016 Updates to Standards

Truck Driving on highway at sunset

IBC and Bio/Infectious Substances

Transport Canada (TC) published information on some significant changes to the latest editions of standards for design/manufacture/use of packaging for bio/infectious substances and Intermediate bulk containers (IBC); CGSB-43.125-2016 and CGSB-43.146-2016 respectively.

Moving Forward

The notices are presumably to give advance warning of changes to ambulatory (“dynamic”) references as indicated in the CG (Canada Gazette) I “International Harmonization Amendment” to the Transportation of Dangerous Goods Regulations (TDGR) expected, according to usually reliable sources, to be formalized by publication in the July 12 edition of CGII.

See also the author’s earlier Blog on the CGI proposal »

These will replace the currently references, in TDGR Part 1.3.1, to the 2002 and 1999 editions respectively. TDGR 5.16 will also be amended as the information appears in the 2016 edition of CGSB-43.125.

Summaries Available

Transport Canada qualifies their information, cautioning the regulated community to carefully read the standards themselves to ensure they are aware of all changes as some may not be covered in the TC summaries. Although not mentioned directly in this TC material, rumour (again the “usually reliable sources”) has it that there will be a 6-month transition to comply with new editions of revised standards that have ambulatory references in the July 12 amendment.

The summaries highlighting changes in the standards are available on the TC website:
http://www.tc.gc.ca/eng/tdg/moc-infectious-cgsb43125-1309.html
http://www.tc.gc.ca/eng/tdg/moc-ibc-cgsb43146-1308.html

Access to CGSB Standards

Fortunately (unlike other and earlier versions), the actual pdf of these standards themselves can be downloaded at no charge from the Public Works & Procurement Services (PWPS) Canada website:
https://www.tpsgc-pwgsc.gc.ca/ongc-cgsb/programme-program/normes-standards/internet/index-eng.html

HO! HO! HO! TDG Under the Tree – Proposed Harmonization

Air – TDG Part 12 Pre-Amendment Consultation

Ground and air transport

Time Flies

Transport Canada, in what has become a series of proposed amendments, has issued a consultation White Paper on updates to the Transportation of Dangerous Goods (TDG) Regulations (TDGR) Part 12 Air.

This part references the International Civil Aviation Organization (ICAO) Technical Instructions (TI) along with TDG-specific supplemental requirements and exemptions. Some ICAO references date back to 2002 and changes to the TI have made some TDG provisions redundant or in need of updating. Also, there are some clarifications proposed to better align with the Canadian Aviation Regulations under the Aeronautics Act.

In the interest of clarification, Transport Canada hopes to increase the “one window” approach, wherein material is incorporated into the Part 12 TDGR rather than simply referencing an external document. This self-contained approach will still have to consider that changes to external documents might make references a more practical approach in some areas. The objective is also to harmonize this proposal with the “dynamic” (aka “ambulatory”) approach taken with the TDG International Harmonization Amendment.

Related Posts

TP14850 Update Consultation – May 2017 Draft
The Clock is Ticking – 3 Recent TDG Proposals
TDG Update: Proposed Harmonization/

Geography Counts – Limited Access Exemptions

A potential improvement to Part 12 includes adding a definition of “Limited Access”. The proposed definition reads:

“a location to or from which the transport of dangerous goods by means other than by aircraft is not reasonably possible, for at least three (3) consecutive months per year.”

The journey would not be restricted to a specific time of year. However, a journey from a non-limited access location, to a second non-limited access location, ending at a third limited access location, can only apply a Limited Access exemption provision between the second and third destination. The first to second flight must comply (an example is given in the White Paper, with further clarification in Annex B “Details…” to the White Paper).

Another clarification in the proposal is to reinforce the carrier’s “consignor” responsibilities when accepting shipments under Limited Access exemption.

Changes – Additions – Deletions

No section of the current TDG Part 12 is untouched by this proposal. In addition to clarifying Limited Access criteria and other modifications, new provisions are proposed for: “animal repellants” (e.g. bear spray), UN3012 “signal cartridges” (e.g. “bear bangers”), DG required to provide emergency services or aerial fire suppression, DG for operation of an aircraft, or DG transported by peace officer in the exercise of duties.

Some provisions considered redundant, or excessively exempted, under current IATA TI that may be removed include the current sections: 12.6 (toxic and infectious substances), 12.8 (Packing Instruction Y963), 12.9(12) (sodium chlorite and hypochlorite solutions), 12.11 (geological core samples), 12.13 (measuring instruments). Some existing “Equivalency Certificates” will be withdrawn as a result of changes formalizing the exemption in the proposed amendment.

Interested parties have until August 8, 2017 to provide input to this pre-Gazette I proposal. The Gazette I notice is expected to be published by early 2018.

Annex B to the White Paper provides a fairly readable map to the changes. The link below introduces the proposal, and contains further links to the White Paper, Annexes, background documents and feedback options:

http://www.letstalktransportation.ca/part12air

TDG
Transport Canada Publishes Enforcement Action Summaries

Truck Driving on highway at sunset

A New Awareness Vehicle

Transport Canada has added a new item to the various informative offerings on the TDG home page. A link was added to an “Enforcement Action Summaries” listing to supplement existing guidance pages on topic-specific publications, orders, equivalency certificates, safety awareness material, etc.

This new page is intended to give the regulated community a better understanding of the types of offences that could subject them to penalties or orders to take corrective action. The objective is to provide an incentive to “deter wrongdoing” by demonstrating consequences to those who might choose to ignore the regulations; or, on a more positive note, provide an illustration of the advantages of understanding the regulations before an enforcement situation is encountered.

“I Fought the Law …” – or Ignorance is (Usually) No Excuse

Sections 22(3) and 40 of the TDG Act do provide for a defense of having taken “all reasonable measures” to comply with the Act. “Reasonable measures” would normally include acquiring and maintaining knowledge of the applicable regulations.

Although current enforcement activities are unlikely to result in the incarceration experienced by the misguided soul in Bobby Fuller’s 1966 classic hit, the TDG Act does provide for a range of consequences.

These consequences are represented in the published summaries under the following categories:

  1. Detention (of goods) notices
  2. Direction to remedy (non-compliances)
  3. Direction to “not import” or return DG to the point of origin
  4. Revocation of certificates
  5. Tickets (fines)
  6. Convictions (“guilty in court”)

Initial Offering

The current summary covers 24 enforcement actions from the period December 2014 to April 13, 2017, with the intent to update the list monthly. The list has basic sorting features and, when actions are directed at corporations under consequences d)-f) above, disclose names of the offender. Individuals (non-corporate offenders) are not named.

Of the 24 listings: 11 resulted in detention notices, 6 had tickets (ranging from $575 to $900), 5 were directions to remedy deficiencies and 2 were under stop import/return directions.

4 of the listings disclosed the names of corporations and only was the result of a ticket- i.e. presumably 5 of the tickets were issued to individuals.

The majority of the offences were related to TDGR Part 5 (“means of containment) violations (14), with 6 of these pertaining specifications and general requirements for highway tanks under CSA B-621. Documentation deficiencies were cited in 2 ($615 and $900) of the tickets issued.

Avoiding running afoul of regulations is avoided by obtaining knowledge of the content of the regulations with awareness of how they relate to a company’s or individual’s activities. Maintaining compliance also requires keeping abreast of changes that have a potential effect on the activities.

To consult the enforcement summary page at Transport Canada’s website, click on the link below:

http://www.tc.gc.ca/eng/tdg/enforcement-actions-summaries.html

If you have any questions regarding the Transport Canada Enforcement Action Summaries, please contact ICC Compliance Center, Inc. at 1.888.442.9628 (USA) or 1.888.977.4834 (Canada).

WHMIS 2015
WHMIS 2015 Delayed Implications

Young female Industrial Worker

The Cat Came Back – WHMIS 1988 Lives!

More Than Just a Date

As reported in Karrie Monette-Ishmael’s May 19 Blog, an order-in-council resulted in an extension to the Supplier deadlines for compliance with the GHS-based Hazardous Products Act/Regulation (WHMIS 2015). Canada Gazette II (CGII), published on May 31, provided some insight into the delay in the supplementary Regulatory Impact Analysis Statement (RIAS) associated with the extension.

RIAS

The transition extension itself (from June 1, 2017 to June 1, 2018 for manufacturers/importers; and from June 1, 2018 to September 1, 2018 for distributors) was cut and dried. However, the details in the RIAS are a reminder that despite the harmonization focus, there are still some unresolved issues in implementing the new hazard communication system.

CBI

Confidential business information (CBI) in the context of WHMIS has always focussed on masking the disclosure of ingredients on the M(SDS). Officially, Canadian suppliers were expected to rely on the somewhat costly and administratively burdensome Hazardous Materials Information Review Act (HMIRA) process to obtain exemptions from disclosing CBI. Practically the provisions in the Controlled Products Regulations (CPR or WHMIS 1988) were used by most suppliers as a simpler alternate to protect CBI.

Although this was the practise almost from the start of WHMIS 1988, it appears to be news to the current organisation- to wit, in the “Background” section of the RIAS: “Health Canada officials have learned that . . . some companies protected their CBI…by disclosing…ranges rather than using the . . . HMIRA.” I recall the discussions in the early days of WHMIS 1988 and, although unfortunately I don’t have copies, some documented acceptance of the practise as an alternate to the HMIRA as long as it wasn’t abused.

The stated main purpose of the extension is to allow Health Canada some time to prepare a palatable alternative to the WHMIS 1988 concentration ranges – which some in the regulated community have dubbed “CBI Light”. “CBI Light” presumably could allow for ranges, albeit narrower than in WHMIS 1988, and restrict their use for higher hazard “CMRs” (carcinogens, mutagens, reproductive toxins and sensitizers of the respiratory tract) as discussed in the “Consultation” section of the RIAS.

“WHMIS 2017”?

The RIAS includes the thought that some other stakeholder issues could be considered as part of the review. Chief among these is Labour’s desire to bring excluded products (e.g. consumer products and manufactured articles) under the WHMIS umbrella. Given the heavy discussions (again the writer attended some of these in the early 2000’s as an active member of regulated industry) that took place to introduce WHMIS 2015 (the original goal was for 2003!) – I suspect the issues around incorporating the Hazardous Products Act s. 12 exclusions may not come to fruition during the CBI discussions.

Suppliers Beware!

A significant number of suppliers have progressed far enough along the WHMIS 2015 trail that the transition will not have a serious impact on their transition. However, those who have not completely transitioned need to keep in mind that the CGII notice did not change the transition philosophy that prevents “mixing and matching” between WHMIS 1988 and WHMIS 2015 requirements. i.e. Labels and SDS must correspond- as must labels and MSDS. Classification differences could also be problematic if warnings on “GHS” labels were not reflected in WHMIS 1988 MSDS. Similarly, the “expiry” dates on MSDS would still apply to supplies under the older system. Prolonging the transition potentially prolongs the opportunity for non-compliance.

The transition extension does presumably provide for some relief on direct shipments where the Canadian supplier could still take advantage of the exemption, in the CPR s.23, to have (with written agreement) the customer label the material on receipt.

Employers Ditto (Sigh …)

The RIAS “Consultation” section indicates that some employer stakeholders were concerned that extending the transition for suppliers would, in effect, decrease the implementation window for workplaces. This interpretation indicates a false sense of complacency in the “employer” community’s need to establish training and procedures for WHMIS 2015.

As the Health Canada naming conveys, the GHS-based system has been “legal” for use since the CGII adoption in February 2015. Proactive companies, particularly those with significant US customers (US HazCom 2012 was, after all, mandatory in 2015), may already supply to WHMIS 2015 requirements.

The majority of Federal/Provincial/Territorial (FPT) jurisdictions have updated their workplace regulations. Despite the FPT transition provisions, the expectation is that employers will, at minimum, train employees in WHMIS 2015 sooner if products received are supplied under the new system.

Why Wait?

It would seem only prudent to undertake WHMIS 2015 training well before the “official” workplace implementation date. Items outlined as under review in the RIAS are unlikely to require significant changes to employee awareness requirements in understanding the new GHS-based classification, labelling and SDS aspects.

The May 31 CGII contains 2 separate notices: SOR/2017-92 for the new June 1, 2018 manufacturer/importer deadline; and SOR/2017-93 for the September 1, 2018 distributor deadline. The former contains the RIAS for both notices, found under the above SOR (referencing ‘Order Fixing . . . Economic Action Plan 2014″) at:

http://www.gazette.gc.ca/rp-pr/p2/2017/2017-05-31/html/index-eng.php

If you have any questions regarding WHMIS 2015 implementation, please contact ICC Compliance Center, Inc. at 1.888.442.9628 (USA) or 1.888.977.4834 (Canada).


WHMIS 2015 – June 2017 Deadline Extended

TDG
It’s The Standard – TP14850 Update Consultation – May 2017 Draft

Red semi truck on highway

Transport Canada’s Standard TP14850, “Small Containers for Transport of Dangerous Goods, Classes 3, 4, 5, 6.1, 8, and 9”

Transport Canada is well into the process of producing the 3rd Edition of TP14850. The current 2nd Edition (2010) has been in effect since it replaced the CGSB 43.150-97 standard in 2014. Changes to TP14850 are required to reflect current harmonization with the UN Recommendations, changes in the TDG regulations, improvements to ensure the integrity of standardized packaging, addition/clarification of Part 14 special cases, and simplify use of the standard.

Comments are welcomed until May 31, 2017.

An initial draft update was prepared for discussion in January 2016 and a committee of 30-40 stakeholders has been reviewing, discussing and proposing modifications between the initial draft and the May 2017 draft version of the 3rd Edition (by way of disclosure, the author of this Blog is one of the stakeholder representatives). The May 2017 draft follows these reviews and feedback from an initial 2016 public consultation.

Manufacturer’s Periodic Re-Test Obligation

A new requirement (Clause 7.1.7) requires the registered manufacturer to periodically, at least every 5 years, repeat performance tests on a representative sample. Typically, registration certificates are issued for 5 year periods.

One thing to note is that although TP14850 as currently written/proposed does not define “manufacturer” with respect to obligations under the standard, the application form for registration clarifies, in section 4 and Appendix C, that “…the manufacturer is considered to be the person or corporate entity applying for the Certificate of Registration, even if they do not actually manufacture the containers.

Currently registered manufacturers would have a 2-year transition period from the adoption of the 3rd Edition to comply with the periodic re-test requirement.

Organisation of Packing Instructions

As well as additions/deletions/modifications of packing instructions (PI) to include new or changed UN numbers, Appendix A has been simplified to make it easier for users to find information. Outer (Combination packaging) and single packaging limits, currently in Part B, Table A of Appendix A, will be incorporated into each PI. Also, the Substance Specific Provisions (SSP-currently in a separate Part C of Appendix A) will be listed at the end of each PI.

This follows the convention in both the UN Recommendations and IMDG Code publications.

Although Transport Canada does not currently include PI references in Schedule I, the SSP are listed in order of UN number (or the first UN number in a series when more than one UN number uses the same SSP) at the end of each PI.

Conditional Extension of Life for Plastic Containers

Current standards limit the period that a standardized plastic drum or jerrican can be used for DG, even if it has never been used, to 60 months post-manufacture. Clause 12.2(c) is proposed to be modified by special case (Clause 14.4) that would allow conditional use of fleets of drums or jerricans by a single operator up to 120 months post-manufacture- i.e. an extension from 5 years to 10 years.

The fleet operator would have to be registered with Transport Canada under a requirement in the new Clause 10.12.

Additional Additions – Clarification

The Part 1 proposed modifications include ambulatory references to certain standards (e.g. CSA standards), and additional definitions. Part 5 changes terminology from “markings” to “marks”, adds a requirement to identify salvage containers; Part 6 adds construction requirements for boxes made of metals other than steel or aluminum; new Clause 12.6 adds a reference to TDGR Part 11 regarding containers for marine transport; Clause 13.4 clarifies that salvage container absorbent must only be sufficient to eliminate free liquid present when the container is being closed; Part 14 re-defines special cases regarding waste, and adds Clause 14.3 regarding Mobile Process Units used under the Explosives Act/Regulations.

Next Steps

The committee will review a “final” draft following this consultation. Transport Canada then expects to do the final edit and publication of the 3rd Edition in Q4/2017 or Q1/2018.

Existing Manufacturer registrations issued under the current 2nd Edition would continue to be valid to their current expiry date, unless otherwise revoked.

Those interested can request a copy of the May 2017 draft, and/or submit comments by May 31 at:
http://www.tc.gc.ca/eng/tdg/clear-modifications-menu-261.htm#standard

WHMIS 2015
WHMIS 2015 Labelling: Imports – Direct Shipments

Warehouse with chemicals

Uniquely Canadian

A key difference that distributors of imported hazardous products are struggling with is the treatment of products that require re-labelling with Canadian-compliant labels.

WHMIS 1988 and WHMIS 2015 both require a “supplier” (seller) to ensure that products have compliant labels- i.e. as outlined in the respective “controlled” or “hazardous” products regulations. Manufacturers and Distributors, as suppliers are usually comfortable in complying when they are preparing/consolidating shipments of products initially labelled in compliance with the Canadian regulations for GHS-based required wording, pictograms, etc.

However, when receiving imports other mandatory features such as bilingual English/French text, a Canadian Supplier name/address and “non-GHS” classifications may not always be present.

Do It Here or Do It There?

Ideally the foreign supplier will have the instruction and capability to address Canadian label requirements when fulfilling the order from a Canadian customer- be it the end user or a distributor.

If the foreign supplier is unable to reliably provide WHMIS-compliant labels, the Canadian importer may supply the labels for application before shipment.

Practically this may not always be possible depending on the sophistication of the foreign supplier, the volume ordered or the uniqueness of the product. The Canadian distributor may bring non-compliant product to their facility/agent and re-label the product before delivery to the final customer who will have employees handling and/or using the product.

The above options are possible under both the WHMIS 1988 and WHMIS 2015 regulations.

The Plot Thickens

A third option was available under WHMIS 1988 which most suppliers found most expedient, particularly for skid-load packages, and the only practical option when delivery requirements necessitated direct delivery to the user location- bypassing the distributor/importer’s facility.

The section in the WHMIS 1988 version of the Hazardous Product Act (HPA) dealing with labels required them to be applied to each container upon sale or import unless (HPA 14. (2)(a)(ii)) “the person to whom the controlled product is sold undertakes in writing to apply a label to the inner container“.

This provision is no longer contained in the equivalent sections (HPA 13.(1)(b) re “sell” & 14.(b) re “import”) of the current WHMIS 2015 legislation.

Lack of support for the customer labelling option of WHMIS 1988 is also reinforced in Health Canada’s 2016-12 “WHMIS 2015 Supplier Requirements Guide” (“Technical Guidance on the Requirements of the Hazardous Products Act and the Hazardous Products Regulations” – e.g. page 204 & 207).

A copy of the Guide may be ordered from Health Canada’s website.

It would appear that relying on the customer to label each container could be considered non-compliant. Importers may wish to review the situation with their legal counsel or petition Health Canada.

For re-instatement of the previous HPA 14.2(a)(ii) option before customers encounter issues with Labour Inspectors as the transition period begins at the “employer” (user) level.

TDG
The Clock is Ticking – 3 Recent TDG Proposals

Red semi truck on highway

An Easter Parade!

(Marine Amendment-Part 11, Rail Car Standard TP14877 Revision, ERAP- Part 7 Consultation)

Transport Canada is heading into what seems to be an ambitious spring/summer period with a variety of projects related to the Transportation of Dangerous Goods (TDG) regulations. The latest notices are open for comment until the end of April and cover aspects of Parts 5, 7 and 11 (with implications for other parts) of the TDG regulations (TDGR).

SHIP- NO!- “VESSEL” AHOY! – MARINE PROVISIONS

Significant changes are proposed to TDGR Part 11 and Part 1 Special Cases to reflect the current Canada Shipping Act (CSA) and associated regulations, as well as commercial considerations. These affect definitions, terminology and the ability to efficiently transport fuels or medical/diving gases on passenger vessels.

In addition to the changes highlighted in the notice, there are several other noteworthy changes in the proposal.

“Near coastal” versus “Home-Trade” Voyages

The current Part 11 has been the subject of confusion regarding what constitutes the use of the IMDG Code versus the TDGR, particularly with voyages between Nova Scotia and Newfoundland. Retailers in particular have had difficulty in determining when consumer commodities can continue on to NL under TDGR Special Case 1.17. The wording in the current TDGR implies that the voyage would fall under a Home-Trade Voyage Class 1 from the Home-Trade Voyage Regulations. At certain times, the Marine Safety branch of Transport Canada has indicated that, this voyage could be considered a Home-Trade Voyage (HTV) Class II (not referenced directly in the TDGR/old Canada Shipping Act wording) – i.e. within 120 nautical miles from shore and within 200 nautical miles of a port of refuge- and be considered a “domestic voyage” as described in §.11.2.

Thus, the voyage could fall under TDGR Special Case 1.17, Limited Quantity (LQ) exemption, which references a “domestic voyage” as eligible for the exemption, use TDGR placarding, etc.

However, the proposal- instead of maintaining this distinction- adopts the Vessel Certificates Regulations (VCR) terminology without providing an “equivalent” to a HTV Class II. The proposed version of 11.2 defines, in effect, a domestic voyage subject to TDGR (without any proposed amendment to 1.17).

The VCR terminology reference in the proposed 11.2 is for a “near coastal voyage, Class 2” to be the longest voyage to be considered “domestic”. This reduces the allowable voyage to one where the vessel is not more than 20 nautical miles from shore and within 100 nautical miles from a place of refuge.

Perhaps retailers might want to consider commenting to Transport Canada on this aspect- or start preparing to submit equivalency certificate requests (under TDGR Part 14).

Ferries

In addition to expanding some exemptions and increasing the distance from 3 to 5 km, exemptions in the current TDGR 1.6, 3.9 and 8.4(4)(d) are proposed to be dropped. These affect adherence to Schedule 1 Column 6 limits for passenger vessels, on-board access to shipping documents and reporting releases.

Flash Point Marking

The TDGR 4.13 to mark the flash point on packages is to be repealed, presumably since it’s not required in the IMDG Code.

Ammonium Nitrate-Explosives Notification

Notification of loading/unloading these commodities will no longer be required under the TDGR. Presumably this is considered a duplication of requirements under the CSA Cargo, Fumigation and Tackle Regulations.

A six-month transition period is proposed to follow publication date of the final amendment in Canada Gazette II.
The Canada Gazette I notice provides for comments until May 1, 2017 and may be obtained at:
http://www.gazette.gc.ca/rp-pr/p1/2017/2017-04-01/html/reg3-eng.php

Rail Car Standard TP14877

The first revision to this 2013 standard has reached a final (at 2016 12) draft stage and is available, on request, for review and comment by April 30, 2017:
http://www.tc.gc.ca/eng/tdg/clear-modifications-menu-261.htm#public

The major changes, as highlighted in the above reference, will incorporate the improvements in tank car design; and various other safety aspects covered in Protective Directions following the Lac Mégantic disaster in 2013. The draft also includes changes to further harmonize with the 19th Ed. of the UN model regulations and 49CFR.

Before Offering versus After Loading

One significant item in section 10 (Selection and Use of Containers…) is a change in the obligation for ensuring loaded containers are in safe condition for transport.

Section 10.8 has been changed from “Before Offering for Transport” to “After Loading”. This may be to reflect the desirability of discovering errors when they’re most likely to occur; but perhaps the former aspect should be maintained for situations where there is a delay between loading and offering. In section 10.9 (“Before Transporting”), the carrier is no longer specifically responsible for remediating deficiencies that could impact public safety.

ERAP Review

The TDGR Part 7 ERAP (registered “Emergency Response Assistance Plan”) requirements have been under a Task Force review for several years. Proposals for amending Part 7 include clarification on circumstances and parties’ rights/obligations with respect to accessing (for information) or activating an ERAP.

Also, the proposal would allow an ERAP holder to extend the right to third party to return “residue last contain” shipments under the holder’s ERAP without notifying Transport Canada, update the infectious substance ERAP list, and outline ERAP termination protocols when a holder no longer consigns the substances covered by the plan.

Transport Canada has established a comprehensive website to review and provide feedback on these and other aspects of ERAP requirements, by May 1, 2017, at:
http://www.letstalktransportation.ca/part7eraps

Considering that we’ve already seen consultations on an Harmonization amendment (expected to be finalized in Canada Gazette II in June/July); a review on possible changes to Part 6 “Training” requirements; and a pre-gazette “Canadian Update” amendment proposal- not to mention ongoing committee work to update standard TP14850 for small packaging and possible development of a large packaging standard- the balance of this year will be busy for both regulators and the regulated community.

Shipping by Road
TDGR US Import Cross-Docking – All We Want are the FAQs…*

Cross-Docking is Reshipping

On February 8 Transport Canada issued an addition to FAQ regarding the Transportation of Dangerous Goods Regulations (TDGR) Part 9, s. 9.4. This section deals with the re-shipping of dangerous goods (DG) received by road from the US when safety marks differ from those specified in the TDGR. In general, (more on this later**), TDGR 9.1 allows receipt of US shipments to first destination with the safety marks that were legally applied under 49 CFR at the US shipping point.

Cross-Docking

The FAQ defines “cross-docking” as “the process of transferring dangerous goods from one vehicle to another before reaching their final destination”. Changing drivers or tractor units does not trigger the term. When DG are cross-docked, Transport Canada considers this to be “re-shipping” and the provisions of TDGR 9.4 apply (note: although the FAQ refers to “reshipping” in quotes, the term is not specifically defined in the TDGR other than as described by s. 9.4).

Reshipping

Basically, the requirements in s. 9.4 are to remove placards which do not meet TDGR requirements and replace them with TDGR-compliant versions. Examples of these could be US “DANGEROUS” placards; or those with the midline adjusted (e.g. Class 7, 8, 9); or worded and “combustible” placards.
In addition, if means of containment (soon to become “packaging” we hope!) have labels or other safety marks differing from TDGR requirements, then the shipping paper must be annotated accordingly as indicated in s. 9.4 (2).

Part 10 is not referenced in the FAQ, but presumably similar logic will apply to cross-docking rail car shipments (TDG s. 10.4) – or to transfers between rail/road vehicles.

Just the FAQs

Although the author hasn’t seen anything in official consultation documents, statements in casual conversations on two occasions indicate that the current practise of including interpretative guidance as italicised text within the body of the regulations will likely be discontinued. Apparently, this very useful (in my humble opinion) practise is at odds with regulatory convention that expects only the mandatory legal requirements to appear in the regulation. FAQ are the preferred vehicle for the type of information we currently see italicised within the TDGR.

The FAQ referred to in this Blog is available at:
http://www.tc.gc.ca/eng/tdg/awareness-materials-and-faq-1159.html#a99_0

* with apologies to Sgt. Joe Friday/Jack Webb’s often misquoted statement:
http://www.snopes.com/radiotv/tv/dragnet.asp

** Reciprocity has its limits
Although we often hear of “reciprocity” for shipments inbound from the US, we must remember that it has limits. As referenced in the above-mentioned FAQ, the “inhalation hazard” version of Class 2.3 and 6.1 labels or placards are not acceptable even to first destination. The “regular” versions, applied with qualifying marks as required by TDGR SP 23 also need to be present. Similarly things done by US special permit- although potentially to be accepted to first destination under the CG I International Harmonization proposal- will not necessarily be approved for reshipping. Perhaps once the CG II is finalised we’ll have another Blog on this aspect…

TDG
HO! HO! HO! TDG Under the Tree – Proposed Harmonization

The November 26th Canada Gazette I provides an early “gift” to the regulated community which may help relieve boredom over the holiday season.

Harmonization Transportation Style

Although the DG world (unlike WHMIS/OSHA) has been fairly well harmonized under the UN Recommendations for some years now, there have been issues from time to time with; the editions standards referenced in the TDG regulations (TDGR); differences between DOT/TDG requirements for pressure receptacles; and confusion in the status of cross-border shipments when special permits (DOT) or equivalency certificates (TDG) are applied to consignments (for brevity, we’ll refer to these both under the generic term “permit for equivalent level of safety”- PELS).

Ambling Along

An example of the former is the Table of Safety Standards in TDGR 1.3. The recognized edition of the UN Recommendations is the 17th Ed. (2011)- despite the fact that we’re currently looking at the 19th Ed. (2015) and are on the verge of the 20th (2017). This can lead to confusion since the modal regulations are usually consistent with the current edition of UN Recommendations.

To help resolve this issue, and presumably to reduce the amount of catch-up amending necessary, Transport Canada proposes to expand the listing of “ambulatory references” – refer to the latest edition (i.e. “as amended from time to time” rather than a specific date)- for equivalency of other regulations and some selected technical standards.

Canada-US Regulatory Cooperation

Issues reviewed at the joint Canada-US Regulatory Cooperation Council are also appearing in this harmonization proposal.

The US DOT is following a parallel track, with proposed amendment HM-215N published in September, to include similar provisions in 49 CFR. (see Barbara’s Blog of Oct. 13, 2016)

U.S. Publishes Proposed Rule HM-215N on International Harmonization

Key aspects of this initiative include expanding the reciprocity provision to fill and use US DOT pressure receptacles in Canada rather than only accepting those which had been filled within the US. Requalification, repair, marking, etc. must be in accordance with the country where it’s done.

TDGR Parts 9 and 10 also would extend recognition of US PELS regardless of the existence of a Transport Canada-issued corresponding permit, reducing the need to apply for, or determine the existence of, a similar provision. The PELS number would have to appear on the shipping document. Application of the reciprocity would continue to be disallowed for things that are forbidden in TDGR or are not regulated under 49CFR. Each country’s regulations would still have to be reviewed regarding general special case/special provision exemptions.

Additionally, “one-time movement approvals” (OTMA) for moving damaged tank cars, for example, would be recognised in each country to facilitate dealing with situations where the car must be moved to safely empty and repair the means of containment.

Safety Marks, Labels, and Placards

Lithium Battery Mark, Label and Placard

The adoption of the “new” lithium battery mark will replace the provision for marking equivalent wording on packages subject to SP 34. This includes indicating the UN number of the contents instead of just the battery type by name. All SP34 packages will require the mark, but a notation on documentation will no longer apply.

The TDGR also will adopt the new lithium battery Class 9 label for packages requiring this hazard label. As with the other modal/US regulations/proposals, the mandatory use will have a 2-year transition period.

Placarding May not be Harmonized

The TDGR amendment as proposed will require the use of a placard corresponding to the lithium battery Class 9 label instead of a standard Class 9 placard when means of containment require placards.
This is at odds with the 49CFR HM-215N proposal to maintain the use of a “regular” Class 9 placard despite the new lithium battery Class 9 label (“…Class 9 placards, when used, must conform to the existing requirements in …172.560”).
Ditto final (i.e. adopted) IMDG Code Amendment 38-16 -see 5.3.1.1.2: “For dangerous goods of class 9 the placard shall correspond to the label model No. 9 as in 5.2.2.2.2; label model No. 9A shall not be used for placarding purposes.” – i.e. must use the standard Class 9, not the lithium version.

Updating to Current International Regulations

Other proposals will “catch up” the TDGR with many of the changes in the UN Recommendations regarding classifications and listings in TDGR Schedule 1 with applicable editing of special provisions (e.g. specific entries for the various types of combustion engines, solid/liquid polyester resin kits, etc.).

Overpack Marking Clarified

Included in 2 dozen or so “typographical corrections and minor miscellaneous changes” is the removal of the need to mark “Overpack” when the DG marks are visible; but when it is required it must be in minimum 12 mm high characters.

Other Safety Marks (in addition to lithium batteries discussed above)

The proposed amendment will adopt the international standard Class 9 convention of underlining the “9” on both labels and placards.
Also the new “fumigation” label is included in the Appendix to Part 4, presumably to catch up with the information included in the amendment in SOR/2014-159.

Missing from this proposal however, is the requirement for a 2 mm thickness for the inner border line on labels, as currently specified in the UN Recommendations, 49 CFR, IATA DGR and the IMDG Code.

The amendment will not, of course, be finalized until published in Gazette II, with a proposed 6 month general transition period (but until Dec.31, 2018 for the lithium battery mark and lithium battery Class 9 label). There is a 60 day comment period on the proposal and the detailed version may be consulted at:

http://www.gazette.gc.ca/rp-pr/p1/2016/2016-11-26/html/reg3-eng.php


If you have any questions about these changes and how they can affect your operations, please contact us here at ICC Compliance Center at 1-888-442-9628 (USA) or 1-888-977-4834 (Canada).