Vol. 151, No. 48 — December 2, 2017

Regulations Amending the Cargo, Fumigation and Tackle Regulations

Statutory authority

Canada Shipping Act, 2001

Sponsoring departments

Department of Natural Resources
Department of Transport

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the regulations.)

Issues

The Explosives Safety and Security Branch (ESSB) of Natural Resources Canada (NRCan) has worked with Transport Canada (TC) and industry stakeholders to review how the Explosives Regulations, 2013 (ERs) have been operationalized since their coming into force, and has developed the current proposed package of regulatory amendments aimed at improving the regulatory text and removing unnecessary requirements.

1. The handling of explosives at Canadian ports and wharfs

2. Minor amendments to the ERs

Background

The Minister of Natural Resources is responsible for the administration of the Explosives Act, which governs the manufacturing, testing, acquisition, possession, sale, storage, transportation, importation and exportation of explosives and the use of fireworks. The main objectives of the Act and the Regulations adopted under it are to ensure public safety and to strengthen national security.

Made under the statutory authority of the Explosives Act, the ERs came into force on February 1, 2014 (with some provisions coming into force on February 1, 2015, and February 1, 2016). Replacing the former Explosives Regulations, the new Regulations modernized the regulatory text, and introduced new provisions to implement amendments to the Act made under the Public Safety Act, 2002. This latter element reflected an expansion of the scope of the Act to include national security measures, as part of a larger package of amendments to various statutes following the events of September 11, 2001.

As technologies evolve and as related changes affect economic activities, there is an ongoing need to adapt the Regulations to ensure Canada’s competitiveness while continuing to address public safety and national security issues. In response to these changes, this proposal contains two separate themes of amendments to the ERs, as well as related amendments to the CFTRs. The first theme is revised regulatory requirements for the handling of explosives at Canadian ports and wharfs to address public safety and commercial issues related to the loading and unloading of explosives. The second theme involves a series of minor amendments to the ERs to address issues identified since their adoption in 2013.

The handling of explosives at Canadian ports and wharfs (see footnote 1) and the decision process to allow the loading and unloading of explosives onto or from a vessel is the shared responsibility of NRCan, TC and port authorities, and is subject to the following federal acts and regulations:

Under this legislative and regulatory structure, inspections conducted by ESSB using its explosives expertise provide the basis for decisions by TC and port authorities with respect to permissible handling of explosives at ports.

In the past, the port inspections required under the CFTRs have taken the form of surveys conducted and reviewed by an Interdepartmental Committee of NRCan, TC and port authorities. These surveys were based on a combination of NRCan’s Quantity Distance Principles User Manual referred to in section 155 as well as risk assessment methodologies that took into account the short duration of the unloading activity and the fact that explosives were being handled in containers properly packaged for transport purposes, as opposed to directly. However, this practice was ceased in 2012 due to the absence of clear statutory or regulatory authority for the use of methodologies other than QDP. Since then, surveys have been conducted by NRCan inspectors strictly adhering to the Quantity Distance Principles User Manual, based on a literal application of section 155 of the CFTRs. Under this process, ESSB provides TC and port authorities its expert assessment of the maximum quantities of explosives that can be handled at a port based only on the QDPs, as opposed to a broader range of risk factors.

NRCan’s Quantity Distance Principles User Manual is normally used for issuing licences under the Explosives Act for factories and storage magazines at fixed sites where explosives are being directly manufactured, processed, handled, packaged, tested or stored. As such, it takes into account a series of hazards specific to these types of activities, which may have a significant likelihood of accidental initiations that could propagate to the whole content of explosives in a building or magazine. The QDP methodology presumes that an accidental initiation of the explosives will occur, and as a result dictates the amount or quantity of explosives that are allowed in a building or the site based on the distance to populated buildings and roads and the potential harm to human life.

When the requirements set out in the Quantity Distance Principles User Manual are applied for an occasional and transient operation, such as the loading or unloading of a vessel at a port or wharf as currently required under the CFTRs, it leads to excessive restrictions in terms of maximum quantities of explosives allowed to being handled that are not based on scientific calculations of risk. The QDP assessment was never intended to be used or applied for a transportation-related activity where explosives are packaged either in a desensitized manner that suppresses their explosive properties, or in a package that is designed to help prevent an accidental initiation as well as propagation to surrounding packages. Provisions in the CFTRs allow for a quantity of 20 tons of explosives per vehicle to be allowed on public roads across Canada on most routes (with the exception of tunnels), and for vehicles with 20 tons of explosives to be loaded into ro-ro vessels (ferries or vessels on which vehicles can roll on and roll off) at wharfs that are not subject to port surveys. These activities are allowed because they are subject to a series of requirements to ensure public safety under TC’s Transportation of Dangerous Goods Regulations.

The move from port surveys that took into account the actual risks posed by transient activities to strict adherence to QDP has resulted in reductions in the amount of explosives that may be loaded at Canadian ports. (see footnote 2) This change in turn has impeded the supply chain of explosives to Canada and the United States, and has reduced the traditional tonnage to levels that are not economically viable for manufacturing operations or shipment costs. For example, while in recent years 90% of explosives used by the United States’ oil and gas industry has transited through the Port of Halifax, an inspection conducted in 2015 using the QDP methodology resulted in a decrease in the maximum amounts that could be loaded at its two explosives-handling terminals from 25 tons to 2 tons. In March 2016, these restrictions led the Halifax Port Authority to issue a moratorium to temporarily suspend all explosives-handling operations until an alternative option was developed to address the safe handling of explosives at ports and wharfs in Canada while not imposing extra costs or undue burden on industry. Other explosives imported into and exported from Canada have also been affected. This includes specialized high explosives and explosives articles that are required as raw materials for the manufacturing of both defence and commercial explosives, and that are manufactured in Europe. These materials, due to their transport classification, can only be imported via a marine mode since their transport by air is forbidden. In July 2016, the moratorium at the Port of Halifax was lifted for fireworks, but not for other explosives.

Objectives

The main objective of the proposed amendments is to ensure that actual risks to public safety related to the loading and unloading of explosives at wharfs and ports are well identified and addressed, while allowing for increased commercial import and export activities. This will provide port authorities with the accurate assessments needed to safely unload and handle explosives at their facilities, while ensuring that the North American supply of explosives is not unduly impeded.

The secondary objective is to deal with minor issues that have arisen during the implementation of the Explosives Regulations, 2013, by adjusting or removing requirements that are not needed to protect public safety. Many of these issues have been raised by stakeholders, and simple changes to the regulations would reduce unnecessary regulatory burdens on industry.

Description

1. Proposed amendments for ports and wharfs

The proposed amendments to the CFTRs and ERs would remove the express requirement for QDP to be used in port and wharf inspections. For this purpose, subsections 155(2) and (3) of the CFTRs would be repealed and replaced by provisions in the ERs. These new regulatory provisions would allow for quantified risk assessments of wharfs and port facilities to be carried out based on modern, science-based methodologies approved by the Chief Inspector of Explosives. The assessments would be carried out by qualified persons and the resulting reports would be subject to review and approval by NRCan inspectors.

The proposed amendments to the ERs would require NRCan inspectors to determine that the quantity of explosives to be loaded or unloaded at a wharf or port does not exceed the amount permitted in the applicable quantified risk assessment report and to determine its safety measures.

2. Other proposed changes to the Explosives Regulations, 2013

This proposal would also make the following minor amendments to the ERs to clarify the regulatory text and to reduce unnecessary regulatory burden with respect to low-risk activities and explosives.

Elimination of licence requirements for low risk explosives

Part

Section

Current wording

Proposed change

Rationale

12

227(1)

A distributor may acquire, store and sell blank cartridges for tools if they hold a licence. A distributor who acquires blank cartridges for tools must comply with this Division.

A distributor or retailer may acquire, store and sell blank cartridges for tools without a licence. A distributor or retailer who acquires blank cartridges for tools must comply with this Division.

The current regulations cap the number of cartridges for tools (e.g. nail guns) that can be stored at a sales establishment. By repealing sections 230 and 236, the proposed changes would eliminate the cap and allow unlimited possession and storage, as the quantity of explosives in a blank cartridge is minimal and not a safety hazard, even when large numbers of cartridges are stored together in a single retail establishment. In the event of an accidental initiation of a cartridge or a fire in the establishment, a high amount of such low hazard cartridges would not constitute a hazard to customers who may be present, or to first responders who would address the fire. The requirement for blank cartridge distributors to have a licence would also be eliminated due to the low risk posed by these explosives.

 

(2)

A retailer may acquire, store and sell blank cartridges for tools, whether or not they hold a licence. A retailer who acquires blank cartridges for tools must comply with this Division.

4

45

No permit required for items of table in section 45

In the table:

3. Small arms cartridges

5 000 — Import, Export

50 000 — Transportation In Transit

4. Percussion caps (primers) for small arms cartridges

5 000 — Import, Export

50 000 — Transportation In Transit

5. Empty primed small arms cartridge cases

5 000 — Import, Export

50 000 — Transportation In Transit

Since the implementation of permit requirements for explosives transiting Canada under the Explosives Regulations, 2013, NRCan has been processing a large number of permits related to small arms cartridges. Typically, these permits are issued to U.S. citizens moving between Alaska and the rest of the United States. Small arms cartridges contain only microscopic amounts of explosives and present a low safety and security risk on their own. Therefore, the proposed amendments would increase the amounts of small arms cartridges that can be transited through Canada without a permit from 5 000 to 50 000 rounds.

1

5

(c) automotive explosives (for example, pyrotechnic seat belt pretensioners and modules containing pyrotechnic inflators), whether or not in their original packaging, that the competent authority of their country of origin has classified as Class 9 under the Model Regulations on the Transport of Dangerous Goods, published by the United Nations.

(c) explosives classified as UN3268 by the competent authority of their country of origin under the Model Regulations on the Transport of Dangerous Goods, published by the United Nations.

The exemption for automotive explosives (for example, pyrotechnic seat belt pretensioners and modules containing pyrotechnic inflators such as vehicle air bags) would be made more generic and will be expanded to other life-saving devices that also meet the requirements of Transportation of Dangerous Goods Regulations for items that are classified in a transport classification other than Class 1 (which is used for explosives). This classification, which follows international standards adopted by the UN, is used for items where, if there were an accidental ignition, there would be no effects felt outside of the package.

3

37(1)

A person who has obtained the authorization of an explosive must obtain the written permission of the CIE before changing the explosive in a way that would render any of the following information….

Except for explosives of Types C.2, C.3 and S.1 explosive classified as 1.4S for transport and for which the UN# assigned by the competent authority of the country of origin remains unchanged and for which a notification of the change to the CIE is required, a person who has obtained the authorization of an explosive must obtain the written permission of the CIE before changing the explosive in a way that would render any of the following information …

Currently, approval from the Chief Inspector of Explosives is required from manufacturers and vendors to update product information for all explosives. This proposal includes amendments to simplify the process to update product information for low risk explosives (Types C.2 [e.g. blank cartridges for nail guns], C.3 [e.g. percussion caps], and S.1 [e.g. highway road flares]). Following these changes, only a notification would be required — i.e. permission would not be required from the Chief Inspector of Explosives.

5

135

Currently no provision

Add a section after section 135 for manufacturing Christmas crackers without requiring a licence. Subsection 135.1(1) A person who complies with subsection (2) may assemble Christmas crackers — Requirements (2)(a) the snaps must be on the list of authorized explosives referred to in subsection 41(1); (b) the Christmas cracker must contain less than 2 mg of explosive substance; and
(c) precautions that minimize the likelihood of an accidental ignition must be taken

This change would allow Christmas crackers to be manufactured without a licence provided
(a) the snaps are on the existing list of authorized explosives referred to in subsection 41(1); (b) the Christmas cracker contains less than two milligrams of explosive substance; and (c) precautions that minimize the likelihood of an ignition are taken. This type of activity is extremely low risk since it involves a single small snap per Christmas cracker.

7

170(1)

For any calendar year during which a holder of a factory licence, an import or export permit or a manufacturing certificate carries out an "activity" involving an explosive, the holder must submit a report to the Chief Inspector of Explosives in the form provided by the Department of Natural Resources. The report must include, for each explosives…

For any calendar year during which a holder of a factory licence, an import or export permit or a manufacturing certificate carries out an "activity" involving a Type E, I, or D the holder must submit a report to the Chief Inspector of Explosives in the form provided by the Department of Natural Resources. The report must include, for each explosives…

Subsection 170(1), which requires annual reporting for the import and export of explosives, would be streamlined so that reports are now required only for types E (blasting), I (initiation systems), and D (defence) explosives. Other types of explosives are lower risk and will not require an annual report to the Chief Inspector.

17

365(2)

A seller must not store electric matches in a magazine in which other special effect pyrotechnics are stored.

Eliminated

Special effect pyrotechnics often already contain an electric match and no further risk is created through additional electric matches being stored in the same location. Unlike consumer or display fireworks, there are no fuses on special effect pyrotechnics, and the risk of ignition through electric matches stored in the same magazine is low.

Wording clarifications

Part

Section

Current wording

Proposed change

Rationale

3

26(3), 30, 47(4)

Tour or international competition

Add the words "special event" to the terminology of tours or international competitions involving fireworks — For example section 30: An applicant for an authorization for a specified period, if the explosive is for use at a special event, tour or international competition involving fireworks, must complete, sign and send to the Chief Inspector of Explosives the application form provided by the Department of Natural Resources.

Adding special events would allow authorization to be provided for a specified period for fireworks that would be used for a special occasion that is not part of a tour or international competition. This provides additional flexibility to organizations participating in international fireworks competitions in Canada. The fireworks to be used at the competition would still be subject to the review and approval of the Chief Inspector of Explosives.

3

30(g)

Paragraph 29(p) states: the method to be used to destroy any of the explosive that is not used before the authorization expires. Paragraph 30(g) states: the method to be used to destroy any of the explosive that is not used.

Use the same wording for both of these sections; i.e. the wording in paragraph 29(p).

This amendment would ensure consistent wording and clarity.

7

51(2)

If anything interrupts an in-transit transportation of explosives, the holder of the in-transit permit must ensure that the explosives are stored in a secure storage site and are *attended.

If anything interrupts an in-transit transportation of explosives and the explosives need to be stored, the holder of the in-transit permit must ensure that the explosives are stored in a licensed magazine, storage unit or dwelling in accordance with these Regulations or at a secure storage site.

The wording of this section would remove the attendance requirement for low risk explosives while maintaining it for higher risk explosives that are to be stored in magazines.

7

168

A holder of a licence, permit or certificate who has not applied to renew the document or to obtain a new document must ensure that on or before the expiry date of their document the explosives under their control …

A holder of a licence, permit or certificate who has not applied to renew the document or to obtain a new document must ensure that on or before the expiry date of their document the explosives under their control, for which a licence, permit or certificate is required …

Section 168 would be amended to clarify that licence holders do not need to dispose of all explosives in their possession upon expiry of a licence, permit or certificate but only those explosives for which the licence, permit or certificate was required.

9

198(1)

If a vehicle — other than a vehicle in which a *manufacturing operation may be carried out — is used to transport the following quantity of an *explosive that is listed in subsection (2), the carrier must ensure that it is equipped with a tracking and communication system no later than

  • (a) one year after these Regulations are made, if the vehicle is transporting 1 000 or more detonators;
  • (b) one year after these Regulations are made, if the vehicle is transporting 15 000 kg or more of explosives;
  • (c) two years after these Regulations are made, if the vehicle is transporting at least 10 000 kg but less than 15 000 kg of explosives; or
  • (d) three years after these Regulations are made if transporting at least 2 000 kg but less than 10 000 kg of explosives.

If a vehicle — other than a vehicle in which a manufacturing operation may be carried out — is used to transport 1 000 or more detonators, or transporting at least 2 000 kg of explosives that is listed in subsection (2), the carrier must ensure that it is equipped with a tracking and communication system.

Subsection 198(1), dealing with tracking and communications systems for vehicles transporting explosives, would be streamlined to eliminate spent provisions.

9

201

The driver of a vehicle that contains *explosives and is involved in an accident or incident that is likely to delay the delivery of the explosives must, as soon as the circumstances permit, notify the police and the carrier of the accident or incident and the delay.

The driver of a vehicle that contains explosives and is involved in an accident or incident that is likely to delay the delivery of the explosives must, as soon as the circumstances permit, notify the police, the shipper and the carrier of the accident or incident and the delay.

Section 201 would be modified so that, in the event of an accident or incident involving a vehicle transporting explosives, the driver would be required to notify the shipper of the accident (in addition to the police and the carrier).

17

361

"special effect pyrotechnics" means, in addition to any explosive classified as type F.3, the following types of explosive if they will be used to produce a special effect in a film or television production or a performance before a live audience.

(f ) low-hazard special purpose explosives (Type S.1) and high-hazard special purpose explosives (Type S.2).

The definition of "special effect pyrotechnics" is amended to include low-hazard special purpose explosives (Type S.1) and high-hazard special purpose explosives (Type S.2).

17

398(3)

The storage unit must be made from, or lined with, a non-sparking material, marked with the words "Pyrotechnics/Pièces pyrotechniques" and kept locked, away from flammable substances and sources of ignition in an area that is not accessible to the public. Nothing other than special effects pyrotechnics may be stored in the storage unit.

Any storage unit at the site of use must be located in an area not accessible to the public.

The contents of this subsection would be deleted, with the exception of the restriction of public access, as the deleted requirements are already covered under the requirements of subection 397(2) for storage units.

18

412

A reference to a mass of display fireworks or their accessories in this Part is a reference to their gross mass (the mass of the fireworks plus the mass of any packaging or container).

A reference to a mass of display fireworks or their accessories in this Part is a reference to their net explosives quantity (the mass of the fireworks excluding the mass of any packaging or container).

Section 412 would be amended to refer to net explosives quantity (NEQ), which will provide consistency and assist with the enforcement of other regulatory requirements that refer to NEQ (for example the application of quantity distance principles for the issuance of a licence, which is based on net quantities).

18

426

A user who is the display supervisor in charge of a display, whether or not they hold a licence, may store the fireworks to be used in a display — to a maximum of 500 electric matches and 125 kg of other fireworks — in a storage unit if they obtain the written approval of the *local authority to do so. The user must ensure that the requirements in section 427 are met.

A user who is the display supervisor in charge of a display, whether or not they hold a licence, may store the fireworks to be used in a display — to a maximum of 500 electric matches and 100 kg of other fireworks — in a storage unit if they obtain the written approval of the *local authority to do so. The user must ensure that the requirements in section 427 are met.

Following the amendment to the unit of measurement in section 412, the maximum storage quantity would be changed from 125 kg (gross mass) to 100 kg (NEQ).

18

420

A seller must keep a record of every sale of fireworks for two years after the date of the sale. The record must include the following information and documents: (a) the buyer’s name and address; (b) the number and expiry date of their licence or fireworks operator certificate; (c) a copy of a local authority’s approval to hold the fireworks display in which the fireworks will be used;

(b) in the case of a sale to a licenced buyer, the number and expiry date of their licence; (c) in the case of sale to a certified buyer, the number and expiry date of their fireworks operator certificate and a copy of a local authority’s approval to hold the fireworks display in which the fireworks will be used;

The section would be amended to eliminate the requirement for a buyer that holds a licence to include a copy of the local authority’s approval.

18

434(5)

Only a person who holds a fireworks operator certificate (display assistant), fireworks operator certificate (display supervisor), fireworks operator certificate (display supervisor with endorsement) or fireworks operator certificate (display visitor) may handle fireworks in the danger zone or fallout zone.

Only a person who holds a fireworks operator certificate (display assistant), fireworks operator certificate (display supervisor), fireworks operator certificate (display supervisor with endorsement) or fireworks operator certificate (display visitor) and is authorized by the display supervisor in charge may handle fireworks in the danger zone or fallout zone.

This provision would be amended to clarify that only crew members with the required certification for the activities in question and who are authorized by the display supervisor in charge may access the danger or fallout zones.

8

177(1)

177(1) If the applicant’s criminal record check does not reveal any of the circumstances set out in subsection (2) or the applicant has an equivalent document, the Minister may issue or renew the licence, permit or certificate.

177 The Minister must not issue or renew the licence, permit or certificate unless the applicant has an approval letter or equivalent document.

Subsection 177(1) provides that the Minister may issue a licence, permit or certificate if the applicant’s criminal record check does not reveal they are subject to a court order or have been convicted of an offence that would disqualify them from possessing explosives, or if they have an equivalent document. As the record check referred to in subsection 177(1) must be performed in order to obtain a letter of approval from the Minister, for simplification of the regulatory text, this provision would be amended to state that the Minister may issue a licence, permit or certificate if the applicant has a letter of approval or an equivalent document.

* Terms preceded by an asterisk are defined in section 6 of ERs.

Increased flexibility

Part

Section

Current wording

Proposed change

Rationale

3

40

A person who receives a notice to recall an explosive must immediately recall the explosive and either make it safe or destroy it in a manner that will not increase the likelihood of an accidental ignition during or after the destruction.

A person who receives a notice to recall an explosive must immediately recall the explosive and either make it safe or destroy it in a safe manner.

Subsection 40(3) is overly prescriptive in terms of how recalled explosives are to be destroyed. Amendments are proposed to improve clarity and to allow multiple methods to destroy explosives.

5

84(b) and 101(2)

Workers at a factory or satellite site who are not employees and visitors
must …

remain under the supervision of a competent person while at the factory or satellite site.

Workers at a factory or satellite site who are not employees and visitors
must …

remain under the supervision of a competent person while at the factory or satellite site, unless the holder of the division 1 factory licence has reasonable grounds to believe that the worker understands the hazards to which the worker could be exposed and is competent to carry out their duties in a manner that is safe, lawful and ensures the security of the factory or site.

Paragraph 84(b) and subsection 101(2) require contractors and visitors to remain under the supervision of a competent person while at an explosives factory or satellite site. Under the proposed amendments, individuals who have an adequate appreciation of the hazards and safety measures to take would be exempted from this supervision requirement.

5

107(2)

Currently no provision

For the purpose of transporting black powder charges for ceremonial use manufactured under paragraph (1)(h), the charges are classified as UN 0027.

Paragraph 107(1)(h) authorizes the manufacture and storage of black powder charges for ceremonial use (e.g. cannons used at Park Canada sites). The proposed amendments would provide classification for the transport of black powder charges that is required by the Transportation of Dangerous Goods Regulations. This clarifies the classification of black powder charges when they are being repackaged in the original container that previously contained the black powder in bulk. This classification meets safety requirements.

9

191(3.1)(a) and 196(9)

Explosives must not be transported in a towed vehicle

191(3.1)(a) Subsection (3) does not apply to the transportation of explosives at a mine site or quarry.

196(9) Except at a mine site or quarry, the driver of a vehicle transporting explosives must ensure that the vehicle is not towed unless …

Subsections 191(3) and 196(9) impose restrictions on transporting explosives in towed vehicles. The intent of the regulatory requirement is to ensure safety on public roads; therefore, amendments are proposed to add an exception so that restrictions would not apply to the transportation of explosives in towed vehicles at mines and quarries (the restrictions for public roads would remain). Towing a vehicle at a mine or quarry is often needed and only occurs on short distances and away from the general public.

9

196(6)

The driver must ensure that repairs that involve power tools or heat-producing devices or that could increase the likelihood of an ignition are not made to the vehicle while it contains explosives.

In the case of a mechanical breakdown of a vehicle transporting explosives, repairs to the vehicle may be done at the location of the breakdown only if doing the repair work will not increase the likelihood of an ignition and the work is done by a competent person. The driver must ensure that repairs that involve power tools or heat-producing devices or that could increase the likelihood of an ignition are not made to the vehicle while it contains explosives.

The proposed amendments would allow for minor repairs, while on the road, to a vehicle transporting explosives provided safety is not jeopardized.

11

218

(2) Subsection (1) does not apply to intermediate bulk containers or containers holding explosives in bulk.

(2) Subsection (1) does not apply to

  • (a) the outer packaging or containers of explosives if the number is contained in a barcode or matrix code that is printed on the packaging or container;
  • (b) containers holding explosives in bulk;
  • (c) intermediate bulk containers holding explosives in bulk; and
  • (d) plastic bags that meet the requirements of UN 5H4.

Subsection 218(1) requires sellers of explosives to mark the packaging of the explosives with information about the buyer’s licence, manufacturing certificate and provincial authorization. The proposed amendments would add flexibility, for example, by permitting the use of barcodes on exterior packaging, as barcode technology has proven to be an excellent tool for inventory, traceability and product recall. For example, this would eliminate the need to inventory a skid of explosives bag by bag; instead, a barcode covering the entire skid could be used for inventory purposes.

17

388(3)(f)

Three letters of recommendation

Eliminated

Paragraph 388(3)(f) requires applicants for fireworks operator certificate as senior pyrotechnicians or special effects pyrotechnicians to provide three letters of recommendation. This requirement is unnecessary; the letter from a supervisor required by subsection 388(4) is considered sufficient.

17

388(4)(a) to (c)

(4) An applicant … must

  • (a) for a fireworks operator certificate (senior pyrotechnician), establish that they have acted as a pyrotechnician for two years and submit a letter from a supervisor which attests that the applicant is able to safely use explosives classified as type F.3 and propellant powder;
  • (b) for a fireworks operator certificate (special effects pyrotechnician), establish that they have acted as a senior pyrotechnician for two years and submit a letter from a supervisor which attests that the applicant is able to safely use explosives classified as type F.3, propellent powder and special purpose pyrotechnics; and
  • (c) for a fireworks operator certificate (special effects pyrotechnician — detonating cord), establish that they have acted as a special effects pyrotechnician for two years and submit a letter from a supervisor which attests that the applicant is able to safely use initiation systems and detonating cords.

(4) An applicant … must

  • (a) for a fireworks operator certificate (senior pyrotechnician), establish that they have acted as a pyrotechnician for one years and submit a letter from a supervisor which attests that the applicant is able to safely use explosives classified as type F.3 and propellant powder;
  • (b) for a fireworks operator certificate (special effects pyrotechnician), establish that they have acted as a senior pyrotechnician for one years and submit a letter from a supervisor which attests that the applicant is able to safely use explosives classified as type F.3, propellent powder and special purpose pyrotechnics; and
  • (c) for a fireworks operator certificate (special effects pyrotechnician — detonating cord), establish that they have acted as a special effects pyrotechnician for one years and submit a letter from a supervisor which attests that the applicant is able to safely use initiation systems and detonating cords.

The two-year requirement in the current Regulations would be changed to one year, as technicians can gain the necessary experience to safely operate fireworks in this period.

9

191(3.1)

Currently no provision

Subsection (3) does not apply to

(b) the transportation of fireworks with UN number UN 0333, UN 0334, UN 0335 or UN 0336 in a towed vehicle if the driver of the tow vehicle holds a fireworks operator certificate (display assistant), fireworks operator certificate (display supervisor) or fireworks operator certificate (display supervisor with endorsement) and ensures that the quantity of fireworks transported in the towed vehicle does not exceed 750 kg and precautions have been taken to minimize the sway of both vehicles.

Subsection 191(3) states that a carrier of explosives must not transport explosives in a towed vehicle unless (a) the explosives are in a semi-trailer attached to a truck trailer or in a fifth-wheel trailer; or (b) the explosives are in a trailer that is part of a road train travelling over ice roads. A new subsection (3.1) would be added to allow a carrier of explosives to transport explosives in a towed vehicle when the driver of the towed vehicle holds a fireworks operator certificate (display assistant, display supervisor or display supervisor with endorsements) and the explosives being transported are fireworks (UN numbers 0333, 0334, 0335 and 0336). Fireworks are frequently transported in small quantities and with extra precaution with respect to sway; this transportation can be done safely with a towed vehicle.

17

398(1) and (2)

(1) Despite sections 393 to 397, a pyrotechnician in charge of a pyrotechnic event may store up to 5 kg of special effect pyrotechnics in a *storage unit at the site of use if they comply with this section.

(2) Of the 5 kg of special effect pyrotechnics that may be stored in the storage unit, no more than 3 kg may be propellant powder.

Eliminated

Subsections 398(1) and (2) limit storage of special effect pyrotechnics in a storage unit at the site of an event to 5 kg, while storage of up to 25 kg is permitted in any other location [390 (2)]. The proposed amendments will increase the storage limit at event sites to 25 kg. Since the storage is in a controlled access area, the public is not at risk.

18

432(1)(d) and (e)

A fireworks display plan … must include …

(d) the type and product name of each firework to be used and the name of the person who obtained its authorization;

(e) the quantity of fireworks to be used under each product name;

A fireworks display plan … must include …

(d) the type of fireworks to be used;

(d.1) the diameter in millimetres of the largest aerial shell to be used or, if no aerial shells are to be used, the maximum height the fireworks will reach during the display;

(e) the quantity of fireworks to be used;

The proposed amendments would require a reduced amount of information, but would require the size of the fireworks to be used or the height they would reach in order to determine that the safety distances in the fireworks plan are appropriate in order to receive permission from the relevant legal jurisdiction or authority.

8

175(1)

Currently no provision

Equivalent document means…

(e) a security clearance issued by the Government of Canada through Public Works and Government Services Canada (PWGSC) for individuals working for companies registered in the Contract Security Program for work conducted on behalf of the Government of Canada.

Subsection 176(1) requires applicants for an explosives licence, permit or certificate to include in their application proof that they have an approval letter issued under section 183 by the Minister following a criminal record check, or an equivalent document as defined in subsection 175(1) [including a permit issued under Quebec explosives legislation, a FAST or NEXUS card issued by the Canadian Border Services Agency, or a firearms licence]. The proposed amendments would add security clearance documents issued by Public Works and Government Services Canada (PWGSC) to the list of "equivalent documents", as these documents provide for an equivalent criminal record check.

* Terms preceded by an asterisk are defined in section 6 of ERs.

Regulatory and non-regulatory options considered

As the proposed amendments are to improve and clarify the existing regulatory text, no non-regulatory options were considered.

“One-for-One” Rule

The proposal is an “OUT” under the “One-for-One” Rule, as it would result in a reduction of the administrative burden to industry through the elimination of licence requirements for low-risk explosives, improved regulatory clarity and increased flexibility for industry and commercial activities at ports and wharfs. The total annualized decrease in administrative costs is estimated to be $132,045.00 or $24.00 per business. Please refer to the summary table below:

“One-for-One” Rule

Annualized administrative costs per business (2012 CAD)

Current initiative is an:

“OUT” (“One-for-One” Rule)

 

Years Since 2012

 

Values to Report in Regulatory Impact Analysis Statement

Annualized administrative costs (2012 CAD)

$132,045

Annualized administrative costs per business (2012 CAD)

$24

Small business lens

The small business lens does not apply, as the proposal does not impose any costs on small business. The option presented reduces the regulatory burden on stakeholders and strengthens Canada’s trade relationship with the United States by eliminating a possible source of difficulty for explosives supply in North America. The amendments to the Explosives Regulations, 2013 will not affect any other areas or sectors.

Consultation

The Explosives Regulations, 2013, which were developed through close consultation with various industry stakeholder groups over a number of years, had strong support and were eagerly anticipated. Through continued consultations with industry stakeholders, NRCan has received numerous positive comments and feedback on the regulatory and compliance efficiency and the reduction of the burden that the regulatory amendments delivered to industry.

The current proposed amendments have been driven by stakeholders as a result of a series of face-to-face consultations over the last three years and include changes that have been requested by the Canadian Explosives Industry Association (CEAEC), the Canadian Pyrotechnic Council (CPC), the Association of Canadian Port Authorities (ACPA) and the Institute of Makers of Explosives (IME) with regards to the proposed requirement for a risk assessment tool. As a result, a case study using the Port of Halifax was conducted to determine acceptable maximum quantities per berth or piers. The final outcome of these consultations was a request from the stakeholders to remove the requirement of an NRCan ESSB inspection and to replace the QDP with a quantitative risk assessment (QRA).

Regulatory cooperation

Discussions with the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration, the Institute of Makers of Explosives (IME) and the Canadian Explosives Industry Association (CEAEC) regarding the loading and unloading of explosives at ports and wharfs along with consultations between Transport Canada, port authorities and NRCan have informed the present proposals.

NRCan and the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA) have established an ongoing regulatory partnership, as outlined in the Regulatory Cooperation Council Joint Forward Plan, that has enabled the two departments and their stakeholders to work together to increase regulatory cooperation and alignment on explosives classification and the transportation of dangerous goods. The U.S. PHMSA requested commitments in the Explosives Classification Work Plan of the Regulatory Cooperation Council related to the port issue, as this impacts explosives that are off-loaded at Canadian ports for transit to the United States. Large U.S. ports on the Eastern Seaboard are too close to major population centres to allow the unloading of significant quantities of explosives according to quantity distance principles. The ER amendment will allow U.S. QRA methods to be used at Canadian ports and wharfs. An example of a QRA method is the Institute of Makers of Explosives Safety Analysis for Risk (IME-SAFR), which is a quantified risk assessment methodology used in the conduct of port surveys across the United States.

A current 2018 initiative (Initiative A — Collaboration on international standards and initiatives) includes coordinated joint positions via participation in international forums, including the United Nations Sub-Committee of Experts on the Transport of Dangerous Goods where Canada is working with its U.S. counterparts for amendments to UN test methods for the classification of dangerous goods, including explosives.

Efficient and safe handling and unloading of explosives at Canadian ports and wharfs will ensure that regulatory requirements in Canada and the United States are similar and will allow Canadian explosive companies to be subjected to the same requirements applied in the United States. This will be viewed positively in the United States. The U.S. oil and gas industry is highly dependent on explosives that transit through the Port of Halifax and are imported into the United States. Canada ranks as the United States’ largest single export and import market, with $544 billion in the two-way trade of goods (2016). Canada, which uses explosives for seismic exploration and perforating (a process that uses explosives to perforate the oil well casings and oil-bearing formations), is the largest exporter of oil and gas to the United States with a daily rate of 263 000 barrels of crude oil. A decreased capability of moving explosive materials to the U.S. market translates into effects on a wide array of Canadian supply chains (mainly those of steel, mineral, oil, gas, automobile and manufacturing), which results in slower trade with our largest trading partner and more expensive Canadian products and forces the United States to look elsewhere for cheaper products. This, in turn, impacts Canadian trade and millions of workers.

Rationale

An assessment of the Port of Halifax using a QRA was undertaken to study the risk associated with the handling of explosive materials at the various terminals (four in total). Unlike QDP results that are based on historical accidents, the QRA studies the risk of materials stored or handled during different activities and calculates the risk based on many factors, such as explosive type and the activity. Compared to the QDP, the QRA is a modern sophisticated tool that calculates and determines potential blast effects and the likelihood of harm to people or damage to property. The outcomes provide a comprehensive assessment, based on science, of the potential blast effects on public safety, one that takes into account the characteristics and activities of a specific port or wharf.

Modern QRA tools provide scientifically determined risk values for modern explosives (that are less sensitive and less powerful when compared to historic dynamite types of explosives) while taking into consideration detailed information (such as materials of construction of buildings where people may be located) to calculate risk. These tools ensure that potential hazards are accurately determined and that the risks being calculated meet the regulatory intent for ensuring public safety. In comparison, the QDP methodology is conservative, as it is based on historical accidents involving explosives such as dynamite and black powder and assumes worst-case scenarios that may occur with more vulnerable buildings or structures. While using QDP also meets the regulatory intent of ensuring public safety, it leads to excessive restrictions for low-risk and short-duration activities such as the loading and unloading of safely packaged explosives in transportation containers. QDP do not allow for mitigating factors that might be present at a given port or wharf and that might lessen potential hazards to be taken into account.

The proposed removal of the requirement that only NRCan ESSB inspectors conduct risk assessments and surveys would allow other competent parties (e.g. contractors) to carry out the assessments. A number of highly qualified individuals and organizations can conduct risk assessments based on methodologies and criteria recognized by NRCan. Their availability would help alleviate the lack of federal government resources to do such assessments. NRCan specialists would still review and approve assessments done by third parties to ensure they meet NRCan requirements for ensuring public safety. This would relieve port authorities from the burden of scheduling and waiting for NRCan inspections to be completed before approval for the continued unloading and loading of explosives.

The proposed amendments would ensure that meaningful surveys would be accomplished with appropriate NRCan oversight over the quality and methodologies of the assessments. The risks to public safety posed by this activity would continue to be addressed, while ensuring that economic activity is not unduly fettered and survey guidelines can be adapted more easily. NRCan, Transport Canada and port authorities will continue to take a coordinated approach to the regulation of these activities.

Costs to port authorities with respect to contracting out to third parties to conduct port inspections are expected to be low. While NRCan does not currently charge for port surveys, resourcing restraints make it difficult to provide inspections immediately upon request, which in turn can impact a port’s economic activities. There are 10 active ports in Canada that load and unload explosives, and it is expected that the port survey will cost $5,000. Therefore, the total costs to all port authorities for the flexibility of using competent third parties when needed would be $50,000 every five years.

Contacts

Jean-Luc Arpin
Chief Inspector of Explosives
Telephone: 613-948-5200

Roy Alemao
Manager
Transport Canada
Telephone: 613-991-3143

N.B.: A “port facility,” for the purposes of the Cargo, Fumigation and Tackle Regulations, includes a wharf, pier, breakwater, terminal, warehouse or other building or work that is located in, on or adjacent to navigable waters that is used in connection with navigation or shipping, land incidental to its use and any land adjacent to navigable waters that is used in connection with navigation or shipping. A “port facility” is located within the limits of a “port authority,” as defined in the Canada Marine Act. A “wharf,” for the purposes of the Cargo, Fumigation and Tackle Regulations, is the same as a “port facility” but is not within the limits of a “port authority,” as defined in the Canada Marine Act, and is not used for international import or export.

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council, pursuant to subsection 120(1) of the Canada Shipping Act, 2001 (see footnote a), proposes to make the annexed Regulations Amending the Cargo, Fumigation and Tackle Regulations.

Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Vadim Petkov, Senior Marine Safety Inspector, Navigation Safety and Environmental Programs, Marine Safety & Security, Transport Canada, Place de Ville, Tower C, 10th Floor, 330 Sparks Street, Ottawa, Ontario K1A 0N5 (tel: 613-990-9850; email: vadim.petkov@tc.gc.ca).

Ottawa, November 23, 2017

Jurica Čapkun
Assistant Clerk of the Privy Council

Regulations Amending the Cargo, Fumigation and Tackle Regulations

Amendment

1 Subsections 155(2) and (3) of the Cargo, Fumigation and Tackle Regulations (see footnote 3) are repealed.

Coming into Force

2 These Regulations come into force on the day on which they are registered.

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