Throughout the COVID-19 pandemic, Canada's federal government has periodically waived certain rules normally applicable to the transportation of COVID-19 test samples, which qualify as dangerous goods and are therefore subject to the requirements of the federal Transportation of Dangerous Goods Act, 1992 (the “TDG Act“). That waiver has just been reintroduced as of May 30, 2022, and is set to remain in force for one year.
Section 31(2.1) of the TDG Act authorizes Transport Canada to issue what is known as a “temporary certificate,” thereby allowing any activity to be carried on in a manner that would normally violate the provisions of the TDG Act, if it is deemed to be in the “public interest” to do so.
On May 30, 2022, Transport Canada issued just such a temporary certificate, “TU 0764 (Ren. 2),” with respect to the handling, offering for transport and actual transport of COVID-19 test samples on their way to laboratories for analysis. The certificate indicates that because testing is still ongoing at non-traditional screening sites, it is “challenging” to ensure that everyone involved in the transport chain has received the appropriate training with respect to the proper handling, offering for transport and transport of test samples in accordance with the TDG Act. TU 0764 (Ren. 2) is intended to help alleviate this situation.
TU 0764 (Ren. 2) will remain in force for an entire year; it will expire on May 31, 2023, unless cancelled earlier by Transport Canada.
TU 0764 (Ren. 2) is essentially the reincarnation of an earlier iteration of the same temporary certificate, itself entitled “TU 0764 (Ren. 1),” which was issued on December 14, 2020 and expired on December 31, 2021. Interestingly, TU 0764 (Ren. 1) contained an advisory note indicating, “This temporary certificate will not be renewed past December 31, 2021.”
Despite such language, interested stakeholders should be aware that they are once again able to avail themselves of the special measures authorized by TU 0764 (Ren. 2) with respect to COVID-19 test samples that are handled, offered for transport or transported in a manner that does not comply with Part 3 (Documentation), Part 4 (Dangerous Goods Safety Marks), Part 5 (Means of Containment), Part 6 (Training), Part 8 (Reporting Requirements) and Part 12 (Air) of the Transportation of Dangerous Goods Regulations (the “TDG Regulations“), made pursuant to the TDG Act.
For the sake of completeness, it should be noted as well that s. 1.39 of the TDG Regulations already includes a more generic exemption for the handling, offering for transport or transport of infectious substances, which would include COVID-19 test samples. However, s. 1.39 of the TDG Regulations only exempts such goods from the requirements of Part 3 (Documentation) and Part 4 (Dangerous Goods Safety Marks) of the TDG Regulations, whereas the provisions of TU 0764 (Ren. 2) go further and also exempt such goods from the requirements of Part 5 (Means of Containment), Part 6 (Training), Part 8 (Reporting Requirements) and Part 12 (Air). It is therefore likely that an interested party will prefer to avail itself of the TU 0764 (Ren. 2) exemption, since it provides an exemption to more parts of the TDG Act than the generic exemption, while at the same time does not require much more than the generic exemption in terms of compliance.
TU 0764 (Ren. 2) provides that the dangerous goods covered by the temporary certificate are “SARS-CoV-2 (COVID-19) test samples”, classified as “Biological Substance, Category B” and bearing UN Number “UN3373.” It further provides that the test samples must be placed either in P650 packaging (a type of special container incorporating multiple layers of leak-proof packaging and a leak-proof receptacle, designed specifically for the transport of infectious substances, as specified in the CAN/CGSB-43.125 safety standard) or in alternative packaging that complies with a number of detailed conditions, as outlined in the certificate.
In addition, the outer packaging of the test samples must be marked as indicated in the certificate. One exception to these marking requirements permits the names of the consignor and consignee to be indicated on a transport document rather than on the outer packaging itself. In such a case, the transport document must also include additional information as outlined in the certificate.
Finally, when test samples are being transported by air, TU 0764 (Ren. 2) provides that an employee of an air carrier involved in their handling or transportation must be trained as indicated, and must not transport test samples in carry-on baggage, checked baggage or their person.
All other requirements of the TDG Act and the TDG Regulations continue to apply to test samples.
As everyone in the transportation industry is aware, handling and transporting dangerous goods is fraught with peril, not only because of the inherent dangerous nature of the goods themselves, but also due to the extremely complex regulatory regime that must be complied with at all times by all stakeholders. Anyone needing assistance with the proper interpretation of TU 0764 (Ren. 2), the TDG Act or the TDG Regulations (whether with respect to COVID-19 test samples or any other dangerous goods) would be well-advised to consult a qualified transportation lawyer for advice.
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