Second Session, Fortieth Parliament,
57-58 Elizabeth II, 2009
STATUTES OF CANADA 2009CHAPTER 9
An Act to amend the Transportation of Dangerous Goods Act, 1992
ASSENTED TO
14th MAY, 2009
BILL C-9
RECOMMENDATION
Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled “An Act to amend the Transportation of Dangerous Goods Act, 1992”.
SUMMARY
This enactment amends the Transportation of Dangerous Goods Act, 1992, in order to enhance public safety — the safety of human life and health and of property and the environment.
The main amendments fall into two categories: new security requirements and safety amendments. These amendments include the following:
(a) requirements for security plans and security training;
(b) a requirement that prescribed persons must hold transportation security clearances to transport dangerous goods, and the establishment of regulatory authority in relation to appeals and reviews of any decision in respect of those clearances;
(c) the creation of a choice of instruments — regulations, security measures and interim orders — to govern security in relation to dangerous goods;
(d) the use of industry emergency response assistance plans approved by Transport Canada to respond to an actual or apprehended release of dangerous goods during their transportation;
(e) the establishment of regulatory authority to require that dangerous goods be tracked during transport or reported if lost or stolen;
(f) clarification of the Act to ensure that it is applicable uniformly throughout Canada, including to local works and undertakings;
(g) reinforcement and strengthening of the Emergency Response Assistance Plan Program; and
(h) authority for inspectors to inspect any place in which standardized means of containment are being manufactured, repaired or tested.
Also available on the Parliament of Canada Web Site at the following address:http://www.parl.gc.ca
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57-58 ELIZABETH II
——————
CHAPTER 9
An Act to amend the Transportation of Dangerous Goods Act, 1992
[Assented to 14th May, 2009]
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
1992, c. 34
TRANSPORTATION OF DANGEROUS GOODS ACT, 1992
1997, c. 9, s. 122
1. (1) The definitions “accidental release”, “import”, “safety requirements”, “safety standards” and “ship” in section 2 of the Transportation of Dangerous Goods Act, 1992 are repealed.
(2) The definition “indication de danger” in section 2 of the French version of the Act is repealed.
(3) The definitions “means of containment”, “means of transport”, “shipping record” and “standardized means of containment” in section 2 of the Act are replaced by the following:
“means of containment”« contenant »
“means of containment” means a container or packaging, or any part of a means of transport that is or can be used to contain goods;
“means of transport”« moyen de transport »
“means of transport” means a road or railway vehicle, aircraft, vessel, pipeline or any other contrivance that is or can be used to transport persons or goods;
“shipping record”« registre d’expédition »
“shipping record” means a record that relates to dangerous goods being imported, offered for transport, handled or transported and that describes or contains information relating to the goods, and includes electronic records of information;
“standardized means of containment”« contenant normalisé »
“standardized means of containment” means a means of containment to which a safety standard applies under the regulations.
(4) The definition “safety mark” in section 2 of the English version of the Act is replaced by the following:
“safety mark”« indication de sécurité »
“safety mark” means a dangerous goods mark or a compliance mark;
(5) The definition “sécurité publique” in section 2 of the French version of the Act is replaced by the following:
« sécurité publique »“public safety”
« sécurité publique » Sécurité pour la santé et la vie humaines, les biens et l’environnement.
(6) Section 2 of the Act is amended by adding the following in alphabetical order:
“compliance mark”« indication de conformité »
“compliance mark” means a symbol, device, sign, label, placard, letter, word, number or abbreviation, or any combination of those things, that is to be displayed on a means of containment used or intended to be used in importing, offering for transport, handling or transporting dangerous goods to indicate compliance with a safety standard that applies under the regulations;
“dangerous goods mark”« indication de marchandises dangereuses »
“dangerous goods mark” means a symbol, device, sign, label, placard, letter, word, number or abbreviation, or any combination of those things, that is to be displayed to indicate the presence or nature of danger on dangerous goods, or on a means of containment or means of transport used in importing, offering for transport, handling or transporting dangerous goods;
“organization”« organisation »
“organization” has the same meaning as in section 2 of the Criminal Code;
“person”« personne »
“person” means an individual or an organization;
“release”« rejet »
“release” means, in relation to dangerous goods,
(a) a discharge, emission, explosion, outgassing or other escape of dangerous goods, or any component or compound evolving from dangerous goods, from a means of containment being used to handle or transport the dangerous goods, or
(b) an emission, from a means of containment being used to handle or transport dangerous goods, of ionizing radiation that exceeds a level or limit established under the Nuclear Safety and Control Act;
“safety requirement”« règle de sécurité »
“safety requirement” means
(a) a requirement for persons engaged in importing, offering for transport, handling or transporting dangerous goods,
(b) a requirement for persons engaged in designing, manufacturing, repairing, testing or equipping a means of containment used or intended to be used in importing, offering for transport, handling or transporting dangerous goods, or
(c) a requirement for reporting by persons referred to in paragraphs (a) and (b) or a requirement for their training or registration;
“safety standard”« norme de sécurité »
“safety standard” means a standard for a means of containment used or intended to be used in importing, offering for transport, handling or transporting dangerous goods, including standards for the means of containment’s design, manufacture, repair, testing, equipping, functioning, use or performance;
“security requirement”« règle de sûreté »
“security requirement” means a requirement for persons engaged in importing, offering for transport, handling or transporting dangerous goods established under regulations made under section 27.1;
“vessel”« bâtiment »
“vessel” has the same meaning as in section 2 of the Canada Shipping Act, 2001.
(7) Section 2 of the French version of the Act is amended by adding the following in alphabetical order:
« indication de sécurité »“safety mark”
« indication de sécurité » Toute indication de marchandises dangereuses ou toute indication de conformité.
2. The Act is amended by adding the following after section 2:
Interpretation
2.1 For the purposes of this Act, a person who is named in a shipping record accompanying dangerous goods or a means of containment on entry into Canada as the person in Canada to whom the dangerous goods or the means of containment is to be delivered is deemed to be importing the dangerous goods or means of containment.
3. Subsections 3(2) to (4) of the Act are replaced by the following:
Application
(2) In addition to its application in Canada, this Act applies to vessels and aircraft outside Canada that are registered in Canada.
Exceptions — regulations and certificates
(3) This Act does not apply to the extent that its application is excluded by a regulation made under paragraph 27(1)(e) or by a certificate issued under section 31.
Other exceptions
(4) This Act does not apply in relation to
(a) any activity or thing under the sole direction or control of the Minister of National Defence, including in circumstances in which the regulations provide that it is under that Minister’s sole direction or control;
(b) commodities transported by a pipeline governed by the National Energy Board Act, the Canada Oil and Gas Operations Act or the law of a province; or
(c) dangerous goods confined only by the permanent structure of a vessel.
4. Section 5 of the Act and the heading before it are replaced by the following:
SAFETY AND SECURITY
Safety Requirements, Security Requirements, Safety Standards and Safety Marks
General prohibition
5. No person shall import, offer for transport, handle or transport any dangerous goods unless
(a) the person complies with all safety requirements and security requirements that apply under the regulations;
(b) the goods are accompanied by all documents that are required under the regulations;
(c) a means of containment is used for the goods that is required or permitted under the regulations; and
(d) the means of containment and means of transport comply with all safety standards that apply under the regulations and display all applicable safety marks in accordance with the regulations.
Prohibition — means of containment
5.1 No person shall design, manufacture, repair, test or equip a means of containment used or intended to be used in importing, offering for transport, handling or transporting dangerous goods unless the person complies with all safety requirements that apply under the regulations.
5. The Act is amended by adding the following after section 5.1:
Transportation Security Clearances
Prohibition
5.2 (1) No prescribed person shall import, offer for transport, handle or transport dangerous goods in a quantity or concentration that is specified by regulation — or that is within a range of quantities or concentrations that is specified by regulation — unless the person has a transportation security clearance granted under subsection (2).
Granting, suspending, etc.
(2) The Minister may, for the purposes of this Act, grant or refuse to grant a transportation security clearance to any person or suspend or revoke such a clearance.
1994, c. 26, s. 69
6. Sections 6 and 7 of the Act are replaced by the following:
Compliance Marks and Dangerous Goods Marks
Prohibition — compliance mark
6. No person shall affix or display on a means of containment a compliance mark that is required or permitted under the regulations — or another mark that is likely to be mistaken for such a mark — in respect of the manufacture, repair or testing of the means of containment, unless the manufacture, repair or testing was done in compliance with all safety requirements and safety standards applicable to that compliance mark.
Prohibition — dangerous goods mark
6.1 No person shall affix or display on dangerous goods, a means of containment or a means of transport a dangerous goods mark that is required or permitted under the regulations — or another mark that is likely to be mistaken for such a mark — if the mark is misleading as to the presence of danger or the nature of any danger.
EMERGENCY RESPONSE ASSISTANCE PLANS AND SECURITY PLANS
Emergency Response Assistance Plans
Emergency response assistance plan
7. (1) No person shall import, offer for transport, handle or transport dangerous goods in a quantity or concentration that is specified by regulation — or that is within a range of quantities or concentrations that is specified by regulation — unless the person has an emergency response assistance plan that is approved under this section before
(a) importing the dangerous goods;
(b) offering the dangerous goods for transport; or
(c) handling or transporting the dangerous goods, in the case where no other person is required to have an emergency response assistance plan under paragraph (a) or (b) in respect of that handling or transporting.
Contents
(2) The plan shall outline what is to be done to respond to an actual or anticipated release of the dangerous goods in the course of their handling or transporting that endangers, or could endanger, public safety.
Approval
(3) The Minister may approve the plan for a specified period, if the Minister believes on reasonable grounds that it can be implemented and will be effective in responding to such a release.
Interim approval
(4) The Minister may grant an interim approval of the plan for a specified period before finishing the investigation of the matters to be considered under subsection (3) if the Minister has no reason to suspect that the plan cannot be implemented or will be ineffective in responding to such a release.
Revocation of approval
(5) The Minister may revoke an approval of an emergency response assistance plan if
(a) in the case of an interim approval, the Minister subsequently believes on reasonable grounds that the plan cannot be implemented or will be ineffective in responding to such a release;
(b) the Minister believes on reasonable grounds that the plan can no longer be implemented or will no longer be effective in responding to such a release;
(c) the Minister has requested changes to the plan that the Minister believes on reasonable grounds are needed to make it effective in responding to such a release and the changes have not been made within a reasonable time or have been refused;
(d) the Minister believes on reasonable grounds that there has been a release of dangerous goods to which the plan applies — or that such a release has been anticipated — and that the plan was not used to respond to the actual or anticipated release; or
(e) a direction made in respect of the plan under paragraph 7.1(a) has not been complied with.
Direction and permission
7.1 The Minister may, if the Minister believes that doing so is necessary for the protection of public safety,
(a) direct a person with an approved emergency response assistance plan to implement the plan, within a reasonable time as specified in the direction, in order to respond to an actual or anticipated release of dangerous goods to which the plan applies; or
(b) authorize a person with an approved emergency response assistance plan to implement the plan in order to respond to an actual or anticipated release of dangerous goods if the Minister does not know the identity of any person required under subsection 7(1) to have an emergency response assistance plan in respect of the release.
Compensation
7.2 (1) The Minister shall compensate, in accordance with the regulations, any person who is authorized to implement an approved emergency response assistance plan under paragraph 7.1(b) for expenses authorized to be compensated under the regulations that are incurred by that person as a result of implementing the plan.
Payment out of C.R.F.
(2) The compensation shall be paid out of the Consolidated Revenue Fund.
Security Plans
Security plan
7.3 (1) No prescribed person shall import, offer for transport, handle or transport dangerous goods in a quantity or concentration that is specified by regulation — or that is within a range of quantities or concentrations that is specified by regulation — before the person has undergone security training in accordance with the regulations, has a security plan that meets the requirements of subsection (2) and has implemented the plan in accordance with the regulations.
Contents
(2) The plan shall, in accordance with the regulations, set out measures to prevent the dangerous goods from being stolen or otherwise unlawfully interfered with in the course of the importing, offering for transport, handling or transporting.
7. Section 8 of the Act is replaced by the following:
Improper means of containment
8. No person shall sell, offer for sale, deliver, distribute, import or use a standardized means of containment unless it displays all applicable safety marks in accordance with the regulations.
8. (1) Subsection 9(1) of the French version of the Act is replaced by the following:
Registre des clients
9. (1) Les fabricants ou les importateurs de contenants normalisés tiennent un registre des personnes à qui ils les fournissent.
(2) Subsection 9(2) of the Act is replaced by the following:
Notice of defective construction or recall
(2) If the Minister believes on reasonable grounds that any standardized means of containment is unsafe as supplied by the manufacturer or as imported for handling or transporting dangerous goods, the Minister may direct the manufacturer or importer to issue a notice of defective construction or recall to the person to whom it was supplied.
Notice of defective repair or defective testing
(3) The Minister may direct a person who repaired or tested a standardized means of containment to issue a notice of defective repair or defective testing, as the case may be, to the person for whom it was repaired or tested, or to publish the notice in a manner such that the notice is likely to come to that person’s attention, if the Minister believes on reasonable grounds that the person who repaired or tested the standardized means of containment
(a) failed to comply with an applicable safety requirement or safety standard; and
(b) affixed to the standardized means of containment — or did not remove from it — the safety mark that indicates that the safety requirement or safety standard had been complied with.
9. The heading before section 10 of the Act is replaced by the following:
INSPECTORS
10. Subsections 10(1) and (2) of the Act are replaced by the following:
Designation of inspectors
10. (1) The Minister may designate persons or classes of persons whom the Minister considers qualified to act as inspectors for any of the purposes of this Act, and may revoke such a designation.
Certificate of designation
(2) The Minister shall give every inspector a certificate of designation showing the matters in respect of which the inspector is designated, including the purposes, classes of dangerous goods, means of containment, means of transport and places for which the inspector is designated.
1994, c. 26, s. 70
11. Sections 11 and 12 of the Act are repealed.
12. Section 13 of the Act is replaced by the following:
Obstruction of inspectors
13. (1) When an inspector is exercising powers or carrying out duties and functions under this Act, no person shall
(a) fail to comply with any reasonable request of the inspector;
(b) knowingly make any false or misleading statement either orally or in writing to the inspector;
(c) except with the authority of the inspector, remove, alter or interfere in any way with anything detained or removed by or under the direction of the inspector; or
(d) otherwise obstruct or hinder the inspector.
Obstruction of qualified person
(2) When a qualified person is exercising powers under subsection 15(3), no person shall
(a) fail to comply with any reasonable request of the qualified person;
(b) knowingly make any false or misleading statement either orally or in writing to the qualified person; or
(c) otherwise obstruct or hinder the qualified person.
13. Subsections 14(1) and (2) of the Act are replaced by the following:
Financial responsibility
14. (1) No person shall import, offer for transport, handle or transport dangerous goods, or manufacture or import standardized means of containment, unless the person is financially responsible in accordance with the regulations.
Proof of financial responsibility
(2) A person who carries on any of those activities shall provide to an inspector on request the proof that is required under the regulations of financial responsibility.
14. Section 15 of the Act is replaced by the following:
Powers of inspector
15. (1) For the purpose of ensuring compliance with this Act, an inspector may, subject to section 16 but at any reasonable time, stop any means of transport for which the inspector is designated and enter and inspect any place, or any such means of transport, if the inspector believes on reasonable grounds that in or on the place or means of transport there are
(a) dangerous goods being offered for transport, handled or transported;
(b) means of containment being manufactured, repaired or tested on which a compliance mark is displayed or will be affixed;
(c) standardized means of containment;
(d) books, shipping records, emergency response assistance plans, security plans or other documents that contain any information relevant to the purposes of this Act; or
(e) computer systems, data processing systems or any other electronic devices or media that contain information relevant to the purposes of this Act, or that have such information available to them.
Powers of inspector
(2) In the course of carrying out an inspection under subsection (1), an inspector may
(a) open and inspect, or request the opening and inspection of, any means of containment for which the inspector is designated, including any closures, valves, safety release devices or other appurtenances that are essential to the use of the means of containment to contain dangerous goods, if the inspector believes on reasonable grounds that it is being used to handle or transport dangerous goods or to contain dangerous goods offered for transport;
(b) open and inspect, or request the opening and inspection of, any means of containment described in paragraph (1)(b) or (c), including any closures, valves, safety release devices or other appurtenances that are essential to the use of the means of containment to contain dangerous goods;
(c) for the purpose of analysis, take, or request the taking of, a reasonable quantity of anything the inspector believes on reasonable grounds to be dangerous goods;
(d) examine, or request the examining of, information described in paragraph (1)(d) or (e) that the inspector believes on reasonable grounds is relevant to the purposes of this Act and make, or request the making of, copies of any of it; and
(e) ask questions of any person for the purposes of this Act.
Authorized person
(3) An inspector may, in accordance with the regulations, authorize any qualified person to enter any place or means of transport that the inspector may enter under subsection (1) and to exercise any of the powers set out in subsection (2).
15. Paragraph 16(2)(b) of the English version of the Act is replaced by the following:
(b) entry is necessary for the purposes of this Act, and
16. The Act is amended by adding the following after section 16:
Certificate of inspection
16.1 (1) If an inspector or a person authorized under subsection 15(3) opens anything, or requests that anything be opened, for inspection or for the taking of a reasonable quantity of anything that is sealed or closed up, the inspector shall provide the person who has the charge, management or control of the thing that was opened with a certificate in prescribed form as proof that it was opened for that purpose.
Effect of inspector’s certificate
(2) The person to whom, or for whose benefit, the certificate is provided is not liable, either civilly or criminally, in respect of any act or omission of the inspector or authorized person in the course of the inspection of the thing or the taking of the reasonable quantity from it, but is not otherwise exempt from compliance with this Act and the regulations.
17. Section 17 of the Act is replaced by the following:
Remedying non-compliance — dangerous goods
17. (1) An inspector may remove to an appropriate place any dangerous goods, the means of containment being used to handle or transport them or a standardized means of containment, or direct a person to do so, and may detain the thing removed until satisfied that the activity will be done in compliance with this Act, if the inspector believes on reasonable grounds that any of the following activities is being carried out in a way that does not comply with this Act:
(a) importing, offering for transport, handling or transporting dangerous goods; or
(b) selling, offering for sale, delivering, distributing, importing or using a standard- ized means of containment.
Other measures
(2) The inspector may also take any other measures necessary to remedy the non-compliance or direct a person to take the necessary measures.
Direction not to bring into Canada
(3) If the dangerous goods or means of containment originates from outside Canada and the inspector believes on reasonable grounds that measures to remedy the non-compliance are not possible or desirable, the inspector may direct that the goods or means of containment not be brought into Canada or that they be returned to their place of origin.
Persons liable to direction
(4) A direction may be issued under this section only to a person who, at the time of the non-compliance or at any time afterward, owns, imports or has the charge, management or control of the dangerous goods or means of containment.
18. (1) Subsection 18(1) of the Act is replaced by the following:
Duty to report
18. (1) Any person who has the charge, management or control of a means of containment shall report to every person prescribed for the purposes of this subsection any actual or anticipated release of dangerous goods that is or could be in excess of a quantity or concentration specified by regulation from the means of containment if the release endangers, or could endanger, public safety.
(2) Subsection 18(2) of the French version of the Act is replaced by the following:
Obligation de prendre des mesures d’urgence
(2) La personne tenue de faire rapport prend, dans les meilleurs délais possibles, les mesures d’urgence raisonnables pour atténuer ou prévenir tout danger pour la sécurité publique qui résulte d’un tel rejet ou qu’un tel rejet peut raisonnablement faire craindre.
(3) Section 18 of the Act is amended by adding the following after subsection (2):
Loss or theft
(3) If dangerous goods in excess of a quantity or concentration that is specified by regulation are lost or stolen during their handling or transporting, any person who had the charge, management or control of the goods immediately before the loss or theft shall report it to every person prescribed for the purposes of this subsection.
19. Sections 19 and 20 of the Act are replaced by the following:
Grounds for intervention
19. (1) If an inspector believes on reasonable grounds that doing so is necessary to prevent an anticipated release of dangerous goods that could endanger public safety, or to reduce any danger to public safety that results or could result from an actual release of dangerous goods, the inspector may do any of the following:
(a) remove the dangerous goods, or a means of containment being used to handle or transport the dangerous goods, to an appropriate place, or direct a person to remove the dangerous goods or the means of containment to such a place;
(b) direct a person to do anything else to prevent the release or reduce any resulting danger to public safety, or to refrain from doing anything that might impede the prevention of the release or the reduction of the danger; and
(c) exercise any power set out in section 15.
Persons liable to direction
(2) Such a direction may be issued only to any person
(a) who, when the release occurs or is anticipated or at any time afterward, owns, imports or has the charge, management or control of the dangerous goods or means of containment;
(b) who is required under section 7 to have an emergency response assistance plan that applies to the actual or anticipated release;
(c) who is responding to the actual or anticipated release in accordance with an emergency response assistance plan approved under section 7; or
(d) who causes or contributes to the occurrence of the actual or anticipated release.
PERSONAL LIABILITY
Personal liability
20. The following persons are not personally liable, either civilly or criminally, in respect of any act or omission done in good faith and without negligence:
(a) any person who responds to an actual or anticipated release using an emergency response assistance plan that applies to the release, acts in accordance with the plan and informs the Canadian Transport Emergency Centre of the Department of Transport of their response to the release;
(b) any person who is directed or required under paragraph 7.1(a), section 17, subsection 18(2) or paragraph 19(1)(a) or (b) to do or refrain from doing anything and acts in accordance with the direction or requirement; and
(c) any person who acts in accordance with an authorization given under paragraph 7.1(b).
20. Subsection 21(1) of the Act is replaced by the following:
Minister may order inquiry
21. (1) If a release of dangerous goods from a means of containment being used to handle or transport dangerous goods has resulted in death or injury to any person or damage to any property or the environment, the Minister may direct a public inquiry to be made, subject to the Canadian Transportation Accident Investigation and Safety Board Act, and may authorize any person or persons that the Minister considers qualified to conduct the inquiry.
21. Subsection 22(3) of the French version of the Act is replaced by the following:
Présomption
(3) Le défendeur qui se livre à une activité visée par la présente loi est présumé, lors d’une action intentée en vertu du présent article, coupable de faute ou de négligence, sauf s’il établit, par prépondérance des probabilités, que lui-même et les personnes dont il est légalement responsable ont pris toutes les précautions voulues pour se conformer à la présente loi et à ses règlements.
22. Subsection 23(1) of the Act is replaced by the following:
Notice for disclosure of information
23. (1) The Minister may, by registered mail, send a written notice to any manufacturer, producer, distributor or importer of any product, substance or organism requesting the disclosure of information relating to its formula, composition or chemical ingredients and any similar information that the Minister considers necessary for the administration or enforcement of this Act.
23. (1) Subsection 24(1) of the Act is amended by striking out the word “and” at the end of paragraph (a) and by replacing paragraph (b) with the following:
(b) information in a record of a communication between any person and the Canadian Transport Emergency Centre of the Department of Transport relating to an actual or anticipated release of dangerous goods; and
(c) information relating to security that is obtained under paragraph 15(2)(d).
1994, c. 26, s. 71(F)
(2) Subsection 24(4) of the Act is replaced by the following:
Disclosure
(4) No person shall knowingly communicate privileged information or allow it to be communicated to any person, or allow any other person to have access to the information, except
(a) with the written consent of the person from whom the information was obtained under section 15 or who disclosed the information under section 23 or in a record of a communication referred to in paragraph (1)(b);
(b) for the purposes of the administration or enforcement of this Act, in the case of information obtained under section 15 or disclosed under section 23; or
(c) to an inspector for the purposes of emergency response analysis or training of inspectors, in the case of information obtained in a record of a communication referred to in paragraph (1)(b).
24. The heading before section 27 of the Act is replaced by the following:
REGULATIONS, MEASURES AND ORDERS
25. (1) Paragraph 27(1)(b) of the French version of the Act is replaced by the following:
b) déterminer des divisions, subdivisions et groupes pour les marchandises dangereuses ou pour chacune des classes de marchandises dangereuses;
(2) Paragraphs 27(1)(e) to (u) of the Act are replaced by the following:
(e) exempting from the application of this Act and the regulations, or any of their provisions, the importing, offering for transport, handling or transporting of dangerous goods;
(f) respecting, for the purposes of paragraph (e), any quantities or concentrations of dangerous goods or ranges of them, respecting the manner of determining those quantities, concentrations or ranges and respecting any circumstances or conditions — including circumstances or conditions regarding prem- ises, facilities or means of containment — under which an activity is exempted under paragraph (e);
(g) respecting circumstances in which any activity or thing is under the sole direction or control of the Minister of National Defence;
(h) respecting circumstances in which dangerous goods must not be imported, offered for transport, handled or transported;
(i) specifying dangerous goods that must not be imported, offered for transport, handled or transported in any circumstances;
(j) respecting safety marks, safety requirements and safety standards of general or particular application;
(j.1) requiring safety management systems to be established by prescribed persons or classes of persons with respect to specified quantities or concentrations of dangerous goods or ranges of them, specifying those quantities, concentrations or ranges, respecting the manner of determining those quantities, concentrations or ranges and respecting the content or requirements of those systems;
(j.2) respecting, in respect of particular dangerous goods, or classes, divisions, subdivisions and groups of dangerous goods, the means of containment to be used in importing, offering for transport, handling or transporting those goods;
(k) specifying quantities or concentrations of dangerous goods, or ranges of them, in relation to which emergency response assist- ance plans are required to be approved under section 7, and respecting the manner of determining those quantities, concentrations or ranges;
(k.1) respecting the information to be provided in an application for approval of the emergency response assistance plan referred to in section 7;
(k.2) respecting compensation of persons under section 7.2, and specifying the expenses that are authorized to be compensated;
(l) respecting the manner in which records are to be kept under section 9, the information to be included in them and the notices to be issued under that section;
(m) respecting the issuance of notices under section 9, and the contents of those notices;
(n) respecting shipping records and other documents to be used in offering for transport, handling or transporting dangerous goods, the information to be included in those documents and the persons by whom and the manner in which they are to be used and kept;
(o) respecting the qualification, training and examination of inspectors, prescribing the forms of the certificates described in sections 10 and 16.1 and respecting the manner in which inspectors are to carry out their duties and functions under this Act;
(p) respecting levels of financial responsibility required under subsection 14(1) in respect of any activity referred to in that subsection, and the nature and form of proof that may be requested under subsection 14(2);
(p.1) respecting the authorization of qualified persons referred to in subsection 15(3) and the manner in which they may exercise powers set out in subsection 15(2);
(q) specifying quantities or concentrations of dangerous goods or ranges of them for the purposes of section 18, and respecting the manner of determining those quantities, concentrations or ranges;
(r) prescribing persons or classes of persons who are to receive reports under section 18, and respecting the manner of making the reports, the information to be included in them and the circumstances in which they are not required;
(r.1) respecting the information to be provided in an application for a certificate under section 31;
(s) respecting the manner of applying for, issuing and revoking approvals of emergency response assistance plans under section 7 or certificates under section 31 and providing for the appeal or review of a refusal to issue an approval or certificate or of a revocation of one;
(t) providing for the notification of persons directed to do anything under paragraph 7.1(a), subsection 9(2) or (3), section 17, paragraph 19(1)(a) or (b) or subsection 32(1), for the coming into effect, duration and appeal or review of those directions and for any other incidental matters;
(u) respecting the manner in which amounts are to be paid under paragraph 34(1)(d); and
(v) prescribing persons or classes of persons who are to be prescribed under this Act.
(3) The portion of subsection 27(2) of the Act before paragraph (a) is replaced by the following:
References in regulations
(2) The regulations may refer to any document, in whole or in part, as it exists when the regulations are made and, for the purpose of providing for alternative ways of complying with this Act, may refer to any of the following documents as amended from time to time:
26. The Act is amended by adding the following after section 27:
Security regulations
27.1 (1) The Governor in Council may make regulations respecting the security of the importing, offering for transport, handling or transporting of dangerous goods, including regulations
(a) respecting the prevention of unlawful interference with the importing, offering for transport, handling or transporting of dangerous goods and the action that is to be taken if that interference occurs or is likely to occur;
(b) prescribing persons or classes of persons, specifying quantities or concentrations of dangerous goods or ranges of them, and respecting the manner of determining those quantities, concentrations or ranges, for the purposes of section 5.2;
(c) respecting the conditions that a person is to meet to receive a transportation security clearance;
(d) respecting the manner of applying for, issuing, suspending and revoking a transportation security clearance and providing for the appeal or review of a refusal to issue such a clearance or of a suspension or revocation of one;
(e) prescribing persons or classes of persons, respecting the contents and implementation of security plans, and specifying quantities or concentrations of dangerous goods or ranges of them, for the purposes of subsection 7.3(1);
(f) respecting security training, including its content and its implementation, and the measures described in subsection 7.3(2);
(g) requiring security management systems to be established by prescribed persons or classes of persons with respect to specified quantities or concentrations of dangerous goods or ranges of them, specifying those quantities, concentrations or ranges and respecting the content or requirements of those systems;
(h) establishing security requirements for equipment, systems and processes used in importing, offering for transport, handling or transporting dangerous goods, including means of transport tracking and identification protocols;
(i) respecting the provision to the Minister of security-related information;
(j) prescribing persons or classes of persons who are to receive reports under section 18, and respecting the manner of making the reports, the information to be included in them and the circumstances in which they are not required; and
(k) prescribing persons or classes of persons who are to be prescribed under this Act.
References in regulations
(2) The regulations may refer to any document, in whole or in part, as it exists when the regulations are made.
Security measures
27.2 (1) The Minister may make measures — referred to in this Act as security measures — respecting the security of the importing, offering for transport, handling or transporting of dangerous goods.
Restriction
(2) The Minister may make a security measure in relation to a particular matter only if
(a) a regulation could be made in relation to that matter under subsection 27.1(1); and
(b) the publication of the regulation would compromise the security of the importing, offering for transport, handling or transporting of dangerous goods or would endanger public safety.
Review
(3) A security measure comes into force immediately when it is made, but the Minister shall review the security measure within two years after the day on which it is made and within every following two years to determine whether the disclosure of the particular matter that is the subject of the security measure would no longer compromise the security of the importing, offering for transport, handling or transporting of dangerous goods or endanger public safety.
Suspension of s. 27.5(1) and repeal of security measure
(4) If the Minister is of the opinion that the disclosure of the particular matter that is the subject of a security measure would no longer compromise the security of the importing, offering for transport, handling or transporting of dangerous goods or endanger public safety, the Minister shall
(a) within 23 days after the day on which the Minister forms that opinion, publish in the Canada Gazette a notice that sets out the substance of the security measure and states that subsection 27.5(1) no longer applies in respect of the security measure; and
(b) repeal the security measure before the earlier of
(i) the day that is one year after the day on which the notice is published, and
(ii) the day on which a regulation is made under subsection 27.1(1) in respect of the matter dealt with by the security measure.
Effect of notice
(5) If a notice is published under paragraph (4)(a), subsection 27.5(1) ceases to apply in respect of the security measure as of the day the notice is published.
Consultation
(6) Before making a security measure, the Minister shall consult with any person or organization that the Minister considers appropriate in the circumstances.
Exception
(7) Subsection (6) does not apply if, in the opinion of the Minister, the security measure is immediately required for the security of the importing, offering for transport, handling or transporting of dangerous goods or for public safety.
Deputy may make security measures
27.3 (1) The Minister may authorize his or her deputy to make, subject to any restrictions or conditions that the Minister specifies, secu- rity measures whenever the deputy is of the opinion that the measures are immediately required for public safety, provided that the conditions in paragraphs 27.2(2)(a) and (b) are met.
Duration
(2) The security measure comes into force immediately when it is made but ceases to have force 90 days after the day on which it is made unless the Minister or his or her deputy repeals it earlier.
Relationship with regulations
27.4 (1) A security measure may provide that it applies in lieu of or in addition to any regulation under subsection 27.1(1).
Conflict
(2) If there is a conflict between a regulation under subsection 27.1(1) and a security meas- ure, the security measure prevails to the extent of the conflict.
Unauthorized disclosure — security measures
27.5 (1) Unless the Minister states under subsection 27.2(4) that this subsection does not apply in respect of a security measure, no person other than the person who made the security measure shall disclose its substance to any other person unless the disclosure is required by law or is necessary to give the security measure effect.
Court to inform Minister
(2) If, in any proceedings before a court or other body having jurisdiction to compel the production or discovery of information, a request is made for the production or discovery of any security measure, the court or other body shall, if the Minister is not a party to the proceedings, cause a notice of the request to be given to the Minister, and, in camera, examine the security measure and give the Minister a reasonable opportunity to make representations with respect to it.
Order
(3) If the court or other body concludes in the circumstances of the case that the public interest in the proper administration of justice outweighs in importance the public interest in the security of the importing, offering for transport, handling or transporting of dangerous goods, the court or other body shall order the production or discovery of the security measure, subject to any restrictions or conditions that it considers appropriate, and may require any person to give evidence that relates to the security measure.
Interim orders
27.6 (1) The Minister may make an interim order that contains any provision that may be contained in a regulation under subsection 27.1(1) if the Minister believes that immediate action is required to deal with an immediate threat to the security of the importing, offering for transport, handling or transporting of dangerous goods or to public safety.
Deputy may make interim orders
(2) The Minister may authorize his or her deputy to make, subject to any restrictions or conditions that the Minister specifies, an interim order whenever the deputy believes that immediate action is required to deal with an immediate threat to the security of the importing, offering for transport, handling or transporting of dangerous goods or to public safety.
Duration
(3) An interim order comes into force immediately when it is made but ceases to have effect on the earliest of
(a) the day that is 14 days after the day on which it is made, unless it is approved by the Governor in Council,
(b) the day on which it is repealed,
(c) the day on which a regulation made under subsection 27.1(1) that has the same effect as the interim order comes into force, and
(d) the day that is two years after the day on which the interim order is made or that is at the end of any shorter period that the interim order specifies.
Publication
(4) An interim order shall be published in the Canada Gazette within 23 days after the day on which it is made.
Tabling of order
(5) A copy of each interim order shall be tabled in each House of Parliament within 15 days after the day on which it is made.
House not sitting
(6) In order to comply with subsection (5), the interim order may be sent to the Clerk of the House if the House is not sitting.
Exemption from Statutory Instruments Act
27.7 (1) Security measures and interim orders are not statutory instruments for the purposes of the Statutory Instruments Act.
Precondition for contravention
(2) No person shall be found to have contravened any security measure, or any interim order that has not been published in the Canada Gazette under subsection 27.6(4) at the time of the alleged contravention, unless it is proved that, at the time of the alleged contravention, the person had been notified of the security measure or interim order or reasonable steps had been taken to bring its purport to the notice of those persons likely to be affected by it.
Certificate
(3) A certificate purporting to be signed by the Minister or the Secretary of the Department of Transport and stating that a notice containing the security measure or interim order was given to persons likely to be affected by it or that reasonable steps had been taken to bring its purport to their notice is, in the absence of evidence to the contrary, proof that notice was given to those persons.
27. Section 28 of the Act is repealed.
28. (1) The portion of subsection 29(1) of the Act before paragraph (a) is replaced by the following:
Ministerial fees orders
29. (1) The Minister may make orders fixing any fees or charges, or determining the manner of calculating any fees or charges, to be paid
(2) Paragraph 29(1)(b) of the Act is replaced by the following:
(b) in relation to applying for transportation security clearances described in subsection 5.2(2), equivalency certificates described in subsection 31(1), approvals or registrations under this Act.
29. (1) Subsection 30(1) of the Act is replaced by the following:
Proposed regulations and orders to be published
30. (1) Subject to subsection (2), a copy of each regulation that the Governor in Council proposes to make under section 27 or 27.1 and each order that the Minister proposes to make under section 29 shall be published in the Canada Gazette and a reasonable opportunity shall be given to interested persons to make representations to the Minister with respect to the regulation or order.
(2) Subsection 30(2) of the French version of the Act is replaced by the following:
Exception
(2) Ne sont pas visés les projets de règlement ou d’arrêté déjà publiés, qu’ils aient été modifiés ou non à la suite des observations.
(3) Section 30 of the Act is amended by adding the following after subsection (2):
Review of regulations — House of Commons
(3) The Standing Committee on Transport, Infrastructure and Communities of the House of Commons or, if there is not a Standing Committee on Transport, Infrastructure and Communities, the appropriate committee of that House may review any regulations made under this Act, either on its own initiative or on receiving a written complaint regarding a specific safety concern. The Committee may hold public hearings and may table its report on its review in the House of Commons.
Review of regulations — Senate
(4) The Standing Senate Committee on Transport and Communications or, if there is not a Standing Senate Committee on Transport and Communications, the appropriate committee of the Senate may review any regulations made under this Act, either on its own initiative or on receiving a written complaint regarding a specific safety concern. The committee may hold public hearings and may table its report on its review in the Senate.
1994, c. 26, ss. 72(F) and 73
30. The heading before section 31 and sections 31 to 33 of the Act are replaced by the following:
CERTIFICATES AND DIRECTIONS
Equivalency certificate
31. (1) The Minister may issue an equivalency certificate authorizing any activity to be carried on in a manner that does not comply with this Act if the Minister is satisfied that the manner in which the authorized activity will be carried on provides a level of safety at least equivalent to that provided by compliance with this Act.
Emergency certificate
(2) The Minister may issue an emergency certificate authorizing any activity to be carried on in a manner that does not comply with this Act if the Minister is satisfied that the authorized activity is necessary to deal with an emergency in which there is danger to public safety.
Temporary certificate
(2.1) The Minister may, in the public interest, issue a temporary certificate authorizing any activity to be carried on in a manner that does not comply with this Act.
Immunity
(2.2) No action lies against Her Majesty in right of Canada, the Minister, his or her Deputy or any person employed in the Department of Transport for anything done or omitted to be done in good faith under subsection (2.1).
Exemption from Statutory Instruments Act
(3) An equivalency, emergency or temporary certificate is not a statutory instrument for the purposes of the Statutory Instruments Act and the contents of an emergency certificate or a temporary certificate may be issued orally, but the emergency certificate or temporary certificate shall be issued in writing as soon as possible and the writing is conclusive proof of its content.
Terms and conditions
(4) An equivalency, emergency or temporary certificate may include terms and conditions governing the authorized activity and, if any of the terms or conditions is not complied with in the course of carrying on the activity, the Act and regulations apply to the activity as though the certificate did not exist.
Scope of certificate
(5) An equivalency, emergency or temporary certificate may specify the persons who may carry on the activity and the dangerous goods or means of containment that it may involve.
Revocation of certificate
(6) The Minister may revoke an equivalency, emergency or temporary certificate — including an emergency or temporary certificate the contents of which have been issued orally — if the Minister is no longer satisfied of the matter described in subsection (1), (2) or (2.1), respectively, or the regulations have been amended and have the same effect as the certificate.
Protective directions
32. (1) The Minister may, if satisfied of the conditions described in subsection (2), direct a person engaged in importing, offering for transport, handling or transporting dangerous goods, or supplying or importing standardized means of containment, to cease that activity or to conduct other activities to reduce any danger to public safety.
Emergency
(2) The Minister may not make the direction unless the Minister is satisfied that the direction is necessary to deal with an emergency that involves danger to public safety and that cannot be effectively dealt with under any other provision of this Act.
Revocation of protective direction
(3) The Minister may suspend or revoke the direction if the Minister is satisfied that it is no longer needed.
OFFENCES AND PUNISHMENT
Contraventions
33. (1) Every person is guilty of an offence who contravenes a provision of
(a) this Act;
(b) a direction issued under paragraph 7.1(a), subsection 9(2) or (3), section 17, paragraph 19(1)(a) or (b) or subsection 32(1);
(c) the regulations;
(d) a security measure; or
(e) an interim order.
Punishment
(2) Every person who commits an offence under subsection (1)
(a) is liable on indictment to imprisonment for a term not exceeding two years; or
(b) is liable on summary conviction to a fine not exceeding $50,000 for a first offence, and not exceeding $100,000 for each subsequent offence.
Exemption from Statutory Instruments Act
(3) For greater certainty, a direction referred to in paragraph (1)(b) is not a statutory instrument for the purposes of the Statutory Instruments Act, but no person shall be convicted of an offence under paragraph (1)(b) unless the person was notified of the direction and, if any applicable regulations have been made under paragraph 27(1)(t), the notification was in accordance with the regulations.
31. Paragraph 34(1)(d) of the Act is replaced by the following:
(d) requiring the person to conduct programs of technical research and investigation into the development and improvement of safety marks, safety requirements and safety stand- ards, or to pay an amount in accordance with the regulations to be used to conduct the research.
32. Section 35 of the Act is replaced by the following:
Limitation period for summary conviction offences
35. Proceedings by way of summary conviction may be instituted at any time within, but not later than, five years after the day on which the subject matter of the proceedings arose.
33. Section 38 of the English version of the Act is replaced by the following:
Offences by employee, agent or mandatary
38. In any prosecution for an offence, it is sufficient proof of the offence to establish that it was committed by an employee, agent or mandatary of the accused, whether or not the employee, agent or mandatary is identified or has been prosecuted for the offence.
34. Section 39 of the Act is replaced by the following:
Representative of organization
39. If an organization commits an offence, a representative who plays an important role in the establishment of the organization’s policies or is responsible for managing an important aspect of the organization’s activities — and, in the case of a corporation, an officer, director, agent or mandatary — who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence and is liable on conviction to the punishment provided for the offence, whether or not the organization has been prosecuted for the offence.
35. Section 42 of the Act is replaced by the following:
Prima facie proof
42. In any prosecution for an offence, evidence that a means of containment or transport bore a dangerous goods mark — or another mark that is likely to be mistaken for a dangerous goods mark — or was accompanied by a shipping record is, in the absence of evidence to the contrary, proof of the presence and identification of dangerous goods indicated by the dangerous goods mark or other mark or the shipping record.
Terminology
36. The French version of the Act is amended by replacing “indications de danger” with “indications de sécurité” in the following provisions:
(a) paragraph 25(a); and
(b) paragraph 26(1)(a).
COMING INTO FORCE
Order in council
37. The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.
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