Canada Gazette, Part I, Volume 153, Number 21: Locomotive Voice and Video Recorder Regulations

May 25, 2019

Statutory authority
Railway Safety Act

Sponsoring department
Department of Transport

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Executive summary

Issues: The proposed Locomotive Voice and Video Recorder Regulations (the proposed Regulations) would provide data about in-cab operating employee actions that are not otherwise available, and would further be useful in providing proactive data to strengthen safety management systems and prevent accidents and incidents by providing the opportunity to mitigate risks before accidents occur.

Description: The proposed Regulations would set out the technical specifications required for the locomotive voice and video recording equipment, including environmental and crashworthiness standards and requirements for voice and video quality, placement of cameras and microphones, and synchronization of data; they would also set out the privacy protections for the access and use of the voice and video data, including the requirements for random selection, access controls, collection, communication, and destruction of the data.

Rationale: The Transportation Safety Board (TSB) has been recommending recording devices in locomotive cabs since 2003. The proposed Regulations would impose a total cost of $76.33 million, most of which would be carried by rail companies for the purchase and installation of the devices. The impacts of the proposed Regulations were evaluated using a break-even analysis approach, which aims to determine the minimum quantified benefit required for the benefits of the proposed Regulations to be equal to or greater than the estimated costs. In the central analysis, a reduction of 4.32% in the annual number of in-scope rail occurrences (e.g. accidents or incidents) would be required for the proposed Regulations to break even.

Issues

Bill C-49, the Transportation Modernization Act, which received royal assent on May 23, 2018, amends the Railway Safety Act (RSA) to, among other things, require rail companies to fit their railway equipment with recording instruments and to provide the Governor in Council with the authority to make regulations concerning recording instruments.

The Bill C-49 amendments to the RSA were developed in recognition that there are many situations in locomotive cabs where it is difficult or impossible to have objective information, or any information at all, about crew behaviour or activities in the lead-up to an accident or incident without the use of voice and video recorders in locomotive cabs. This information is crucial to understanding the causes and contributing factors of rail occurrences.

Proactive risk management through the use of voice and video data will strengthen the rail safety regime. The proposed locomotive voice and video recorder regime provides the opportunity for lessons learned through the analysis of data that previously would not have been accessible.

Making the proposed Regulations would provide railway companies and local railway companies that meet the scope of application criteria with regulatory provisions that specify what must be done in order to comply with the RSA recording instruments requirement. Making regulations to support the Bill C-49 requirement to install recording instruments is a necessary step in order to implement the Transportation Modernization Act and is an important step in making rail transportation safer for Canada and Canadians.

Background

The TSB first recommended the use of on-board voice recording devices in locomotive cabs in 2003, and subsequently placed the lack of a requirement for companies to install both voice and video recorders on locomotives on their Watchlist in 2012. The Watchlist is developed by the TSB to identify key issues that the TSB believes need to be addressed to improve the safety of Canada’s transportation system.

In 2013, following a VIA Rail train derailment in Burlington, Ontario, in which all 3 operating employees were fatally injured and 45 people sustained various injuries, the TSB recommended that voice and video recording devices be installed on all controlling locomotives operating on main track. In the Burlington investigation report the TSB noted that, in the absence of voice and video recorders, it was not possible for their investigators to identify with certainty the dynamics and interaction between the three operating employees leading up to the accident. The TSB further noted that it was difficult to determine whether any human factors, such as fatigue, had contributed to the derailment.

In the 2016 version of the Watchlist, the TSB noted that “with no requirement for on-board voice and video recorders on locomotives, key information to advance railway safety may not always be available for accident investigations and proactive safety management,” and that if permitted, locomotive voice and video recordings “could also provide railways with a means to identify and address operational and human factors issues within a proactive safety management system.”

In February 2016, the Canada Transportation Act (CTA) Review Report recommended that a formal strategy for the implementation of locomotive voice and video recording technology be developed by 2020.

In September 2016, the TSB issued their report on the joint TSB–Transport Canada (TC) study on locomotive voice and video recorders, which concluded that rail safety would be enhanced if the data could be used for proactive safety management. The report noted that the safety benefits of locomotive voice and video recorders extend beyond use for post-accident investigation to also include use for proactive safety management to help identify and mitigate risks before accidents and incidents occur, which could even “reduce the need for reactive investigations.”

Bill C-49 amends the RSA to require locomotive voice and video recording equipment in the locomotive cabs of Canada’s federally regulated railways.

Bill C-49 also amends the RSA and the Canadian Transportation Accident Investigation and Safety Board Act (CTAISB Act) to expand the availability of locomotive voice and video recordings beyond access and use by the TSB for accident and incident investigations. Specifically, the legislative amendments allow for locomotive voice and video recordings to be available to companies and TC for the purpose of determining the causes and contributing factors of a reportable accident or incident that the TSB does not investigate. Further, the legislative amendments allow companies to access and use randomly selected voice and video data to identify lessons to be learned and implement corrective measures as part of their ongoing safety management, and allow TC to access and use randomly selected voice and video data for policy-development purposes, such as trend analysis to inform the rationale for the development of future policies, regulations, or legislation.

While the permitted uses of voice and video data by companies and TC are established in the Bill C-49 amendments to the RSA, the proposed Regulations would further set out limits on the collection, access and use of locomotive voice and video recorder (LVVR) data. For example, in the case of the use of LVVR data by companies for accident or incident investigation, the proposed Regulations would limit companies to only using data if the company has reason to believe that crew activities in the controlling locomotive caused or contributed to the occurrence. Further, companies would only be allowed to use data from the shift of operating employees present when the accident or incident occurred and, potentially, from the preceding shift, and only from the controlling locomotive involved in the accident or incident. Moreover, in the case of the use of LVVR data by companies to identify safety concerns, companies would be limited to using data that is randomly selected in accordance with the random selection methodology requirements set out in the proposed Regulations.

At the same time, the legislative amendments establish strong privacy protections for locomotive voice and video recorder data, by clearly reinforcing that this data is privileged information under the CTAISB Act, meaning it cannot be communicated or used for any other purposes than what is authorized by law, including accident investigation by the TSB. Live streaming of voice and video data or viewing voice and video data in real time would not be supported by the RSA for reasons including that such an approach would not satisfy the requirement to randomly select recorded information in accordance with the proposed Regulations, and that using voice and video data for accident and incident investigation is necessarily conducted post-occurrence.

The Bill C-49 amendments to the RSA would come into force on the same day as the proposed Regulations, which would be on a date to be fixed by order of the Governor in Council.

In 2018, the TSB removed locomotive voice and video recorders from its Watchlist in response to the Bill C-49 amendments to the RSA and the development of the proposed Regulations.

Objectives

The proposed Regulations would improve rail safety as well as the safety of the Canadian public by (1) providing data about the causes and contributing factors of accidents or incidents, which could include human factors, that would not otherwise be available; (2) allowing better and more complete accident investigations by the TSB, TC and rail companies; and (3) providing data for proactive use by TC and rail companies to help identify safety risks, potentially leading to the development of new regulations, rules, policies or procedures to mitigate those risks before accidents occur.

Furthermore, the availability of locomotive voice and video recorder data would contribute to evidence-based regulatory decision-making and allow companies, as part of their safety management systems, to mitigate risks before accidents occur.

Finally, the proposed amendments to the Railway Safety Administrative Monetary Penalties Regulations (AMPs Regulations) to incorporate designated provisions for contraventions to the RSA and the proposed Regulations would reinforce privacy protections related to voice and video data by providing the Minister with an efficient means of responding to non-compliance with the proposed new locomotive voice and video recorder regime.

Description

The proposed Regulations would require federally regulated railways to install locomotive voice and video recorder systems in the cabs of controlling locomotives, footnote 1 no later than two years after the coming-into-force date. Recording equipment must meet specification and configuration requirements. There are also provisions dictating the access and handling of locomotive voice and video recorder data and the communication of data from rail companies to the TSB and TC, including the requirement for rail companies to provide the software and equipment required to use the data to the TSB and, on request, to TC.

Scope of application

The proposed Regulations would apply to rail companies that generated gross revenues of at least $250,000,000 for the provision of rail services in each of the two preceding calendar years and that operate controlling locomotives on 5 or more miles of track within Canada; to rail companies that operate a passenger train service within a municipality or between adjacent municipalities; or to companies that have 15 or more operating employees and operate controlling locomotives on 20 or more miles of track within Canada, and operate at least one controlling locomotive at a speed of over 25 miles per hour. Currently, 13 railway companies and 5 local railway companies are within the scope of the proposed Regulations.

Steam locomotives, heritage locomotives used exclusively for tourist rail transportation services, locomotives in yard service used exclusively in switching, marshalling, humping, trimming and industrial switching, and locomotives used for testing and evaluation purposes are exempted from the requirements.

Downloading accident or incident data

Companies would only be permitted to use voice and video data to investigate an occurrence that the TSB is not investigating if the company can identify which controlling locomotive was involved in the occurrence, and the company has reason to believe that the activities in the controlling locomotive caused or contributed to the occurrence.

Random selection requirements

Prior to randomly selecting locomotive voice and video recordings to identify safety concerns as part of their ongoing safety management, companies would be required to develop a written random selection policy that

Companies would be permitted to randomly select up to 10% of the total number of controlling locomotives that the company is scheduled to operate in Canada on the randomly selected day of the month. Companies would be permitted to randomly select up to three start times from each randomly selected controlling locomotive, and would be required to download no more than 30 minutes of voice and video data beginning from each selected start time.

Companies would be required to submit any changes to their random selection policy in writing to TC prior to undertaking a random selection in accordance with those changes. Companies would not be permitted to conduct random selections more than once per calendar month.

Addressing safety concerns and threats

To prevent companies from arbitrarily determining what is considered to be a threat to the safety of railway operations, the following list of prescribed threats would be specifically set out in the proposed Regulations; the companies may address these threats when using voice and video data:

If addressing a threat, companies would be required to create and maintain records for six years of the original purpose for which the voice and video data was accessed and which threat was addressed.

Privacy protections

In addition to the strong privacy protections set out in the Bill C-49 amendments to the RSA, to further protect employees from unauthorized access or misuse of voice and video data, the proposed Regulations would include requirements that companies

Technical specifications

Companies would be required to ensure that locomotive voice and video recording equipment meets the following technical specifications:

Record keeping

Companies would be required to keep records of the following for six years after the day on which they are created:

When using voice and video data to address a threat to the safety of railway operations, companies would be required to keep that voice and video data for two years after the decision was taken to address the threat and then securely destroy that voice and video data from all storage locations, provided the purpose for which the data had been preserved has been completed.

Proposed amendments to the Railway Safety
Administrative Monetary Penalties Regulations

The proposed amendments to the Railway Safety Administrative Monetary Penalties Regulations (AMPs Regulations) are necessary to incorporate designated provisions for contraventions to the proposed new locomotive voice and video recorder regime. The proposed amendments would modify Schedule 1 of the AMPs Regulations by amending Part 1 to designate new provisions of the RSA and adding a new Part 6 that will include the designated provisions for the proposed Regulations.

The amendments to Schedule 1 of the AMPs Regulations would prescribe the maximum payable amount for an individual and a company for each violation of a designated provision. There are three distinct maximum payable amounts reflecting the level of significance of each designated provision measured by the seriousness of the consequences or potential consequences of the contravention. The three maximum payable amounts reflect low-risk violations of administrative-type provisions, medium-risk safety violations, and major safety violations that pose the highest risk to safety.

The maximum payable amounts for a violation are as follows:

Column 1 Column 2 Column 3
  Maximum Payable Amount ($) Maximum Payable Amount ($)
Level of Risk Individual Corporation

Category A:
If violation is low-level risk

5,000 25,000

Category B:
If violation is medium-level risk

25,000 125,000

Category C:
If violation is high-level risk

50,000 250,000

All of the proposed designated provisions of the RSA would be in the high safety risk category. The following are all of the proposed designated provisions of the RSA and the proposed maximum payable amounts that would be prescribed for each of those provisions in the proposed amendments to the AMPs Regulations:

Category C: High-level risk

The following are examples of proposed designated provisions of the proposed Regulations in the low, medium and high safety risk categories, and the proposed maximum payable amounts that would be prescribed for each of those provisions in the proposed amendments to the AMPs Regulations for each of those categories:

Category A: Low-level risk

Category B: Medium-level risk

Category C: High-level risk

Administrative-type provisions in the proposed Regulations would be classified as a low-level risk subject to the Category A maximum payable amounts for a violation. Provisions in the proposed Regulations that are not administrative in nature, where a contravention is not likely to result in a lack of LVVR data or a risk to privacy, would be classified as a medium-level risk subject to the Category B maximum payable amounts for a violation. Finally, for provisions in the proposed Regulations where a contravention would result in a lack of voice and video data, or would pose a high risk to privacy, would be classified as a high-level risk subject to the Category C maximum payable amounts for a violation.

Under the RSA, any person served with a notice of violation may request from the Transportation Appeal Tribunal of Canada (TATC) a review of an alleged violation or the amount of the penalty. The Minister or the person served with a notice of violation may appeal the results of the determination to the TATC for final determination. As a quasi-judicial body, the TATC review process is less formal than court proceedings. Thus, an administrative monetary penalty (AMP) regime is relatively inexpensive to administer within an existing compliance and enforcement program, and it normally results in more timely and effective enforcement than prosecution.

Coming into force

Finally, the proposed Regulations would provide a transition period of two years from the coming-into-force date to provide time for companies to procure and install the required locomotive voice and video recording equipment.

Regulatory development

Consultation

Impacted stakeholders, including companies, associations, and unions, have been aware of the issue of on-board recordings since 2003, when the TSB first recommended the use of on-board voice recording devices in locomotive cabs.

Impacted stakeholders were further engaged on this issue in 2012, when the Advisory Council on Railway Safety’s Locomotive Voice Recorder Working Group, composed of representatives from industry, associations, unions, and Government, was established to explore the concerns expressed by the TSB with respect to the absence of communication recording devices in the locomotive cab involved in the 2012 Burlington VIA Rail derailment.

In May 2015, impacted stakeholders were engaged on this issue again, when TC and the TSB launched a joint study on locomotive voice and video recorders that included representatives from railway companies, the Railway Association of Canada (RAC), and unions, in addition to the TSB and TC.

Railway companies, local railway companies, and the RAC participated in a series of pre-consultation meetings held on October 30, 2017, and November 7, 2017, to discuss the policy proposal for a possible locomotive voice and video recorder regulatory regime. The Western Canadian Short Line Railway Association (WCSLRA) was consulted on the policy proposal at a meeting held on November 14, 2017. These pre-consultation meetings covered the policy for the proposed Regulations, including the policy proposals for the scope of application criteria, privacy provisions, random selection requirements, and technical specifications for the locomotive voice and video recording equipment. The policy for the proposed Regulations was updated based on the input provided by companies at those meetings.

On December 7, 2017, a survey was sent to railway companies, local railway companies, and the RAC to gather information to inform the policy development and potential cost-benefit analysis for a possible locomotive voice and video recorder regulatory regime, with a requested return date for completed surveys by December 21, 2017. To increase the number of completed surveys, on January 16, 2018, the survey was resent to the same stakeholders, with a requested return date of February 2, 2018. In total, TC received 33 completed survey responses from stakeholders. The completed surveys contained information from companies regarding the total number of employees and the number of operating employees that they employ, the total mileage of track on which they operate, the number of locomotives they operate on federal track in Canada, and other information that was used to develop the cost-benefit analysis for the proposed Regulations.

Following royal assent of the Bill C-49 amendments to the RSA on May 23, 2018, formal regulatory consultations were launched. Railway companies, local railway companies and associations were consulted on the proposed locomotive voice and video recorder regulatory regime at meetings held on November 8 and 9, 2018. Companies provided their feedback on the proposed regulatory requirements at those meetings, including comments on the scope of application criteria, the random selection requirements, the prescribed threats to the safety of railway operations, and the technical specifications.

In particular, during the consultation sessions with companies, they expressed concerns about the usefulness of the random selection requirements, noting that it would be difficult to collect the randomly selected data for use from controlling locomotives dispersed geographically across Canada before the data was automatically and permanently erased. TC responded during the consultations that the Regulations would allow for remote downloading of the data, which could help mitigate those concerns.

Further, companies also expressed concerns during these consultations about start times potentially being selected from times of day when controlling locomotives are not operating, particularly in the case of commuter or tourist rail operations, resulting in no data for those locomotives for that month. TC responded to this concern by updating the proposed regulatory policy to allow companies to randomly select start times from the operating times for the randomly selected controlling locomotives on the randomly selected day of the month, to increase the availability of randomly selected data.

Unions, including representatives from Teamsters, Unifor, and the International Brotherhood of Electrical Workers (IBEW) were also consulted on the proposed regulatory regime at a meeting held on November 13, 2018. The unions provided their feedback on the proposed regulatory requirements at that meeting, including comments about the privacy requirements and the technical specifications for the locomotive voice and video recording equipment.

Manufacturers and other potential suppliers of locomotive voice and video recording equipment were consulted on the proposed regulatory regime at a meeting held on December 17, 2018, and provided their comments on the proposed technical specifications for the locomotive voice and video recording equipment at that meeting.

Following the formal consultations, the proposed requirements for the new locomotive voice and video recorder regulatory regime were updated to address input received from companies, the unions and manufacturers.

To inform the cost-benefit analysis for the proposed Regulations, a consultation questionnaire was sent to railway companies and the Railway Association of Canada on January 15, 2019, with a requested return date for completed questionnaires of January 31, 2019. The purpose of the questionnaire was to confirm estimated controlling locomotive counts and gather information about the implementation of the random sampling methodology. In total, TC received six completed questionnaires from companies.

An additional consultation questionnaire was sent to manufacturers and other potential suppliers of locomotive voice and video recording equipment on January 16, 2019, with a requested return date for completed questionnaires of January 31, 2019. This questionnaire requested purchase and installation estimates for various locomotive types. In total, TC received one completed questionnaire from a manufacturer.

During the consultations, stakeholders were informed, and are now aware, that the proposed Regulations will be subject to AMPs. Stakeholders are aware of the AMPs Regulations and the associated maximum payable amounts for individuals and corporations for the designated provisions in each of the A, B, and C categories, and did not express any concerns during consultations about AMPs for the proposed locomotive voice and video recorder regime.

TC also met with the TSB throughout the development of the proposed Regulations to ensure that the technical requirements for the locomotive voice and video recording equipment would result in voice and video data that was accessible and useful to the TSB in determining the causes and contributing factors of an accident or incident. During these discussions, the TSB indicated that it would be ready to use voice and video data upon the coming into force of the proposed Regulations.

Officials representing the Office of the Privacy Commissioner (OPC) were also consulted in order to confirm that the Commissioner’s comments with respect to privacy and the Personal Information Protection and Electronic Documents Act (PIPEDA) have been adequately addressed.

Modern treaty obligations and Indigenous engagement and consultation

No modern treaty obligations associated with the proposed Regulations have been identified; there were therefore no Indigenous engagement or consultations.

Instrument choice

The Standing Committee on Transport, Infrastructure and Communities recommended that TC immediately develop legislation and regulations to mandate the use of locomotive voice and video recorders in its June 2016 report titled An Update on Rail Safety. In the Government’s response to this report, the Minister of Transport agreed in principle with this recommendation, and subsequently officially announced on November 3, 2016, his intention to mandate the installation and use of locomotive voice and video recorders.

Further to this commitment, Bill C-49 amended the RSA to require locomotive voice and video recording equipment in the locomotive cabs of Canada’s federally regulated railways. To balance the need to improve railway safety while minimizing the impact on the privacy of railway employees, these amendments placed specific legislative limits on the access, use and communication of voice and video data.

These legislative amendments also provided the authority to make regulations that would enhance and clarify requirements aimed at further protecting access to the voice and video data. The details of the locomotive voice and video recorder regime, such as technical requirements and procedures to safeguard the data, are best developed in regulations. The new proposed Regulations would specify the details for storage, disposal, and access to locomotive voice and video data, among other privacy protection measures.

Regulatory analysis

Benefits and costs

Locomotive voice and video recorders would provide information to rail companies and regulatory safety agencies that would enhance the development of railway safety measures that could reduce the frequency and severity of railway accidents and incidents. The presence of in-cab recording equipment would also act as a deterrent against operators engaging in unsafe behaviour.

In the central scenario of this analysis, the total present value costs are $76.33 million, footnote 2 with purchase and installation costs carried by rail companies representing the majority of the costs associated with the proposed Regulations. Recording data would allow the TSB to conduct some of its investigations more efficiently, which would result in a quantified present value benefit of $0.74 million. Therefore, the total net present value cost of the proposed Regulations, without accounting for safety benefits, is $75.59 million.

A break-even analysis of the safety benefits of the proposed Regulations determined that the voluntary safety measures adopted by rail companies and the deterrent effect of the recorders would need to reduce the frequency of in-scope occurrences by 4.32%. Occurrences that were deemed in-scope are those that occurred on main track and to which human factors could have contributed —these will be referred to as “in-scope occurrences.”

The information provided in the “Benefits and costs” section is meant to summarize the findings of the analysis. A full cost-benefit analysis report is available upon request.

Analytical framework

The proposed Regulations have been assessed in accordance with the Treasury Board Secretariat (TBS) Canadian Cost-Benefit Analysis Guide. footnote 3 Where possible, impacts are quantified and monetized, and only the direct costs and benefits for stakeholders are considered in the cost-benefit analysis.

In the central analysis, the analytical time frame is 13 years and the discount rate is 7%. The 13-year time frame captures the 2-year transition period beginning on the date of publication in the Canada Gazette, Part II, plus the expected useful life of recording equipment installed in the first year of the proposed Regulations coming into force. A 20-year time frame is discussed in the sensitivity analysis, along with the impacts of different discount rates, costing assumptions, and growth rates. In the sensitivity analysis, altering analytical parameters and assumed values alters the break-even point, and not the determination of the net cost or benefit.

Assumptions and considerations

The cost-benefit analysis is conducted by comparing the differences between two scenarios: the policy scenario in which the proposed Regulations are implemented, and a baseline scenario that reflects current and planned actions of the regulated community in the absence of the proposed Regulations.

In the baseline scenario, it is assumed that rail operators that do not already have locomotive voice and video recorders installed would not do so voluntarily. footnote 4 While rail companies are permitted to install locomotive voice and video recorders on their locomotives, section 28 of the CTAISB Act prohibits companies from accessing the voice and video data. The data can only be accessed by TSB investigators in the event of an occurrence. Therefore, rail companies have little to no incentive to install locomotive voice and video recorders.

In the policy scenario, rail companies are assumed to be fully compliant with the proposed Regulations in the compliance year (2022). Rail companies would be permitted access to voice and video data following TSB-reportable occurrences or through random selection, as a result of amendments to the Railway Safety Act. Quantifiable differences between the baseline and policy scenarios are laid out in the “Costs” and “Benefits” sections below.

Although the proposed Regulations would increase the marginal operating cost for rail companies, which may be passed on to consumers through higher freight rates or ticket prices, the forecast supply and demand for rail service is not expected to be different in the baseline and policy scenarios.

Affected stakeholders

The proposed Regulations would affect a total of 18 rail companies. Fourteen of these companies are Canadian, with 9 privately owned companies and 5 owned by provincial or federal crown corporations or a municipal/provincial transit service (public rail companies). The proposed Regulations would also affect 4 rail companies based in the United States that operate in Canada. The impacts of the proposed Regulations on U.S. rail companies are not included in this analysis, in accordance with the Canadian Cost-Benefit Analysis Guide: Regulatory Proposals. footnote 5

Table 1 shows the assumed number of controlling locomotives affected by the proposed Regulations in 2019. This estimate is based on data collected from Statistics Canada as well as in consultation with rail companies.

Table 1: Rail companies and locomotives affected by the proposed Regulations
Type of Company Number of Companies Number of Existing Controlling Locomotives

U.S.-based rail companies table 2 note *

4 291

Canadian private companies

9 2 511

Canadian Crown corporations or municipal/provincial transit services

5 230

Total

18 (14 included in analysis) 3 032
(2 741 included in analysis)

Table 2 note(s)

Table 2 Note *

The impact of the proposed Regulations on U.S.-based rail companies is not included in the cost-benefit analysis.

Return to table 2 note * referrer

Costs

The costs associated with the proposed Regulations would be assumed by three groups: rail companies, TC, and the TSB. The estimated total present value cost of the proposed Regulations over the 13-year analytical time frame is $76.33 million. Rail companies would assume 99.5% of the total cost associated with the proposed Regulations.

Costs to rail companies

Rail companies would assume costs for purchase and installation, maintenance, testing, random selection, and other miscellaneous activities. The total present value cost to rail companies is estimated to be $75.93 million. Private rail companies account for $70.26 million of the cost, while public rail companies account for the remaining $5.67 million.

Purchase and installation of locomotive voice and video recorders

The total present value cost for purchase and installation is $68.9 million over the 13-year analytical time frame. Private rail companies account for $63.8 million of the purchase and installation costs, while public rail companies account for the remaining $5.1 million.

Rail companies in-scope of the regulation would carry costs associated with the purchase and installation of locomotive voice and video recorders in all controlling locomotives that are not steam locomotives, heritage locomotives used exclusively for tourism, locomotives in yard service, and locomotives used for testing and evaluation purposes. Based on consultation with industry stakeholders and the opinion of TC officials, the estimated average cost to purchase and install locomotive voice and video recording equipment is $26,602 per locomotive. Sensitivity analysis on this number was conducted and the results are provided in Table 4 of the “Sensitivity analysis” section.

In the first year of compliance, voice and video recorders would be installed in existing locomotives. While the total population of affected locomotives is not expected to increase, there would be turnover. Based on the opinion of TC officials, the estimated lifespan of a controlling locomotive is 40 years, which would amount to a total of 69 new controlling locomotives each year associated with turnover, each requiring voice and video recorders. Due to the minor growth in the locomotive population, there would also be an additional 2 locomotives requiring voice and video recorders per year.

Maintenance

In order to ensure that the locomotive voice and video recording equipment remains functional, there would be ongoing maintenance for installed locomotive voice and video recording equipment, resulting in costs to rail companies. The annual maintenance cost is estimated to be $375 per locomotive voice and video recorder, per year, based on the opinion of TC officials and consultations with stakeholders. That total can be calculated by multiplying the number of locomotives in service each year by the maintenance cost. It is estimated that rail companies would assume a total present value cost of $5.36 million to maintain their installed locomotive voice and video recording equipment. Private rail companies account for $4.91 million of the maintenance costs, while public rail companies account for the remaining $0.45 million.

Testing

Testing is required upon installation of the locomotive voice and video recording equipment, and then on an annual basis. It is assumed that initial testing would be included in installation costs, while ongoing testing would take on average one hour per locomotive. The testing procedures would also involve creating and maintaining test recordings, which would take an additional 15 minutes per test. These tasks are assumed to be completed by a technician. Testing would result in an estimated present value total cost of $0.72 million for rail companies. Private rail companies account for $0.66 million of the testing costs, while public rail companies account for the remaining $60,390.

Random selection

The proposed Regulations include a rigorous process that must be followed in order for rail companies to access voice and video data through random selection. Companies must develop a random selection policy (RSP) and submit it to TC. Each rail company would be required to complete these tasks in the first year of compliance. Development of the RSP would require 15 hours and be completed by a technician, while the submission of the RSP is assumed to require 15 minutes and be completed by an administrative employee. It is assumed that all companies in-scope would engage in random selection, with an average rate of 5% of locomotives in the central analysis. The largest cost associated with the RSP is the retrieval of voice and video data from locomotives. It is assumed that some companies would be able to complete this task quickly through cloud technology, while others would need to physically extract the data from individual locomotives. On average, it is assumed the retrieval of voice and video data would take one hour per selection. The estimated cost associated with the retrieval process would be $0.55 million. Other costs associated with random selection include identifying authorized employees, conducting the RSP each month, record keeping, and providing RSP-accessed voice and video data to the Minister if requested.

The total present value cost to rail companies associated with random selection is estimated to be $0.58 million. Private rail companies account for $0.52 million of the random selection costs, while public rail companies account for the remaining $55,330.

Miscellaneous

The majority of these costs fall under the following four categories: signage, training, creation and maintenance of records detailing voice and video data use, and destruction of voice and video data.

Each locomotive equipped with voice and video recorder technology would be required to have posted signage informing occupants of the presence of the voice and video recorders. It is estimated that this signage would cost $50 on average, leading to a total present value cost of $130,888 associated with signage.

Rail companies would be required to provide training to authorized employees on the proper use of the voice and video recorder data. The number of employees requiring this training per company was estimated through stakeholder consultation and the opinion of TC officials. It is assumed that the employees receiving this training would occupy trainmaster roles. The training is assumed to take 7.5 hours per employee and estimated to be initially complete in the first year of compliance, and then every three years on an ongoing basis to account for employee turnover. The total estimated cost to rail companies for this training would be $94,626.

The creation and destruction of voice and video recorder data and accompanying records would result in costs to rail companies. Each of these activities, the creation and the destruction, are assumed to take 15 minutes and be completed by administrative employees. Rail companies would access data through random selection and from TSB-reportable occurrences. The estimated cost for the creation of voice and video recorder data and its accompanying records is $94,704. The cost for the destruction of this information is estimated to be the same, $94,704.

The four costs detailed above account for $0.43 million of the total miscellaneous costs associated with the proposed Regulations. Beyond these four costs, there are also minor costs associated with reporting and maintaining data, as well as with notifying employees and providing them with access to voice and video recorder data upon the identification of a threat. These other minor miscellaneous costs account for $19,688 of the total cost to rail companies.

The total miscellaneous costs assumed by rail companies are estimated to amount to $0.43 million. Private rail companies account for $0.38 million of the miscellaneous costs, while public rail companies account for the remaining $55,690.

Costs to Transport Canada

It is estimated that the proposed Regulations would require minor incremental enforcement and regulatory administration time. This time is estimated to be the equivalent of 0.5 full-time employees annually, beginning in the first year of compliance (2022). It is assumed that these tasks would be completed by a senior technical inspector. The estimated total present value cost to TC for enforcement and regulatory administration would be $0.39 million.

Enforcement and regulatory administration

It is estimated that the proposed Regulations would require minor incremental enforcement and regulatory administration time. This time is estimated to be the equivalent of 0.5 full-time employees annually. The estimated total present value cost to TC for enforcement and regulatory administration would be $0.39 million.

The proposed Regulations do not require that TC review LVVR data for enforcement, investigation or policy development purposes, but TC may choose to do so at the discretion of the Minister. Reviewing voice and video data for policy development purposes would take time and TC would carry costs in these instances. However, just as the benefits of any future regulations developed with the input of voice and video data could not be attributed to these proposed Regulations, neither could the costs.

Compliance promotion

Due to the small number of rail companies in-scope of the proposed Regulations and the thorough consultation processes that were undertaken, the compliance promotion costs that TC might carry would be negligible.

Costs to the Transportation Safety Board

The TSB would assume minor costs to update some of its existing hardware. Based on consultations with the TSB, it is assumed that the TSB will require new secured hard drive disks and other miscellaneous hardware upgrades. These present value costs to the TSB are estimated to amount to $6,122.

Benefits

The proposed Regulations enable the collection of information that would save resources for the TSB and rail companies when investigating occurrences, as well as enhance the identification of risks and the development of railway safety measures. The presence of locomotive voice and video recorders would act as a deterrent against unsafe behaviours by locomotive operators. The adoption of voluntary safety measures by rail companies and the deterrent effect of the cameras would improve railway safety and reduce in-scope occurrences.

Transportation Safety Board resource savings

The TSB has a mandate to conduct investigations into selected transportation occurrences in order to make findings as to their causes and contributing factors. Between 2009 and 2018, the TSB initiated an average of 16 rail investigations per year. Investigations are resource intensive and can span several years. The presence of locomotive voice and video data would enable TSB investigators to complete the examination and analysis phases of some rail occurrences with up to 10% fewer investigator hours. It should be noted that resource savings are not a reduced need for resources. The savings would enable the TSB to shift resources to other investigations. The total present value resource savings for the TSB is estimated to be $0.74 million.

Railway investigation resource savings

Rail companies also conduct internal investigations after TSB-reportable occurrences. Data would be accessible only after the TSB has informed the rail company that it will not be investigating the occurrence. The presence of voice and video data could save time and resources in these investigative processes. These savings are not quantified due to a lack of available data.

Break-even analysis

As stated above, the total net present value cost of the proposed Regulations, without accounting for safety benefits, is $75.59 million. The safety benefit was evaluated using a break-even analysis, which aims to determine the percentage reduction in in-scope occurrences resulting from the future safety measures developed using locomotive voice and video recorder data and the effectiveness of recording devices in deterring unsafe operating behaviour.

Locomotive voice and video recorders do not prevent accidents from occurring in the same manner as a new braking technology or upgraded barriers at road crossings. However, the information collected by locomotive voice and video recordings could contribute to the development of new voluntary and regulatory railway safety measures. footnote 6 These measures would result in fewer occurrences and improve railway safety.

It is not possible to predict the future safety measures that could only be developed by reviewing locomotive voice and video recordings, and it would not be appropriate to assume what kind of impact they might have. There is a lack of research and literature on the correlation between the presence of voice and video recorders in controlling locomotives and a reduction in accidents or occurrences. Recording systems similar to the locomotive voice and video recording equipment specified in the proposed Regulations have already demonstrated positive safety outcomes. A recent study evaluating the effectiveness of on-board video recorders on public transit buses found that the technology resulted in a 40% reduction in collisions per million miles travelled and a 30% decline in passenger injuries, as well as a 50% reduction in unsafe driving events. footnote 7 While this suggested locomotive voice and video recorders could be effective in improving railway safety, the differences in operating public transit buses and trains is too great for this type of occurrence reduction to be applied to this analysis. Therefore, a break-even analysis approach is used to assess the proposed Regulations. This approach is similar to the approach used by the United States Department of Transportation’s Federal Railroad Administration to assess the impact of regulations on locomotive event recorders. footnote 8

In the central analysis, information collected from locomotive voice and video recorders would have to contribute to a reduction of 4.32% in the annual number of in-scope rail occurrences, which government rail safety experts believe is achievable.

Methodology

To determine the reduction in the number of in-scope rail occurrences required to break even, it is necessary to forecast the number of in-scope occurrences and the average value of avoided cost per occurrence.

Forecast for in-scope occurrences

Since the proposed Regulations apply to controlling locomotives and are intended to provide information relating to human factors and operating crew activities, only main track accidents where human actions could be a factor can be avoided. The forecast for the number of in-scope occurrences is based on historic TSB rail transportation occurrence data from the years 2008 to 2018, footnote 9 with the straight-line trend extended over the period of analysis. It is estimated that there would be an average of 277 in-scope accidents per year over a 13-year period of analysis.

Figure 1: Average avoided cost per main track accident ($1.03 million)

Detailed information can be found in the surrounding text.

Avoided main track accident costs

The average total cost of a main track accident where human actions are a factor is estimated at $1.03 million. This includes the avoided cost for Canadians (avoided serious injuries, fatalities and damage to the environment) and rail companies (avoided equipment and track damage and avoided cost of delays due to the closure of a section of track).

Avoided fatalities, serious injuries, and equipment and track damage

Canadian data on rail company damage from rail occurrences is limited, so the average number of fatalities and serious injuries, and the average amount of equipment and track damage, per accident, are based on human factor accident data collected by the U.S. Federal Railroad Administration Office of Safety Analysis. footnote 10 The values used in this analysis are the average annual values per accident between 2010 and 2018.

In the data set, there was an average of 0.02 fatalities and 0.24 serious injuries per accident between 2010 and 2018. These values were then multiplied by the value of a statistical life (VSL) of $9.33 million and $1.25 million, footnote 11 respectively. This results in an average avoided fatalities benefit per occurrence of $171,905 and an average avoided serious injuries benefit per occurrence of $0.30 million.

Rail equipment and track damage values were inflated to 2018 U.S. dollars footnote 12 and then exchanged to Canadian dollars. footnote 13 When inflated and exchanged, the average cost of equipment damage per occurrence was $122,035 and the average cost of track damage per occurrence was $55,956.

Avoided environmental clean-up costs

Environmental clean-up costs are greatest when the train involved is transporting, and releases, dangerous goods. However, the majority of accidents do not involve the release of dangerous goods. In some cases, environmental clean-up costs are relatively low. These proportions are spread across all accidents to give an average cost per accident. In this analysis, the cost of the environmental clean-up is spread over all accidents and is valued at $28,987 per accident. footnote 14

Avoided rail system delay cost

Rail accidents can cause a prolonged closure of a track segment that can disrupt a large portion of a rail network. This can lead to trains being rerouted or sitting idle until the track is reopened. Accidents can also result in a loss of cargo and legal costs. Indirect costs for rail companies are estimated to be twice the direct costs. footnote 15 For this analysis, the average rail system delay cost is $0.36 million.

Break-even point

Considering the number of in-scope occurrences and the value of avoided costs per occurrence, it is estimated that a reduction of 4.32% of in-scope occurrences, which amounts to an average reduction of approximately 12 in-scope occurrences per year, is required for the proposed Regulations to break even. As shown in Figure 2, a reduction of 3.53% of in-scope occurrences would be required to break even in the low-purchase-and-installation cost scenario, while in the high-purchase-and-installation cost scenario, the annual reduction in in-scope occurrences required to break even is 5.11%. These scenarios are discussed in the sensitivity analysis.

Figure 2: Break-even reduction in in-scope occurrences

Detailed information can be found in the surrounding text.

Consolidated cost-benefit statement

At the break-even point in the central analysis, there would be an average of 4.32%, or an average of 12 fewer in-scope occurrences each year in the policy scenario relative to the baseline scenario.

Table 2 shows the benefits and costs expected in the central analysis, and Table 3 shows the estimated safety benefits at the break-even point.

Table 2: Summary of the quantified and non-quantified costs and benefits

Cost/Benefit (× $1,000)

Dollar Year

Base Year

Discount Rate

Final Year

2018

2019

0.07

2031

Year of Analysis

2019–2021

2022

Average of Intervening Years (2023–2030)

2031

Total

Monetized costs

Costs to private railway companies

-

54,859

1,764

1,288

70,260

Purchase and installation

-

54,648

1,048

764

63,795

Maintenance

-

-

562

411

4,907

Testing

-

-

76

55

659

Random sampling

-

73

51

38

521

Miscellaneous

-

138

28

20

378

Costs to public railway companies

-

4,352

151

110

5,672

Purchase and installation

-

4,327

83

60

5,051

Maintenance

-

-

51

38

449

Testing

-

-

7

5

60

Random sampling

-

9

5

4

55

Miscellaneous

-

16

5

3

56

Costs to Government

-

58

39

28

395

TC enforcement and administration

-

52

39

28

389

TSB hardware upgrades

-

6

-

-

6

Monetized benefits

Benefits to Government

-

93

73

57

738

TSB time savings

-

93

73

57

738

Net present value without safety benefits

Net present value

-

(59,176)

(1,881)

(1,369)

(75,589)

Qualitative costs/benefits

Time saved in internal railway company investigations

Note: Figures may not add up to totals due to rounding.

Consolidated break-even analysis statement

The reduction in in-scope occurrences that needs to be achieved for the proposed Regulations to break even is 4.32%. The avoided costs if this reduction is achieved are presented in Table 3. These avoided costs are quantified by multiplying the number of estimated avoided in-scope occurrences by the costs per accident laid out in Table 3 then discounting.

Table 3: Summary of the benefits at the break-even point

Year of Analysis

2019–2021

2022

Average of Intervening Years (2023–2030)

2031

Total

Break-even analysis

Benefits to railway companies

-

5,224

3,890

2,826

39,166

Avoided equipment damage

-

1,194

889

646

8,951

Avoided track damage

-

547

408

296

4,104

Avoided track delay

-

3,483

2,593

1,884

26,111

Benefits to Canadians

-

4,858

3,617

2,628

36,423

Avoided fatalities

-

1,682

1,252

910

12,609

Avoided injuries

-

2,893

2,154

1,565

21,688

Avoided environmental damage

-

284

211

153

2,126

Note: Figures may not add up to totals due to rounding.

Sensitivity analysis

A sensitivity analysis is conducted to test the effects on the output of selected independent variables used in the analysis. Uncertainty about these independent variables can be better contextualized through the use of a sensitivity analysis. The following independent variables were analyzed: the locomotive voice and video recording equipment purchase and installation cost, the forecasted locomotive growth rate, the analytical time frame, and discount rates. The results are shown in Table 4 below.

Locomotive voice and video recording equipment purchase and installation cost

The central analysis uses $26,602 as the purchase and installation cost, but there remains some uncertainty about this figure because the configuration of locomotive cabs can vary widely. Transport Canada was able to establish a range for the locomotive voice and video recording equipment cost and used the middle figure in the central analysis. Results if the minimum or maximum values were used are presented in Table 4.

Locomotive growth rate

In the central analysis, it is assumed that there is minor growth (0.07%) in the population of controlling locomotives in-scope of the proposed Regulations. The results if a 2% growth in the total number of controlling locomotives in-scope was used are presented in Table 4.

Analytical time frame

A 13-year analytical time frame was used for the central analysis to properly represent the expected lifespan of the locomotive voice and video recorder technology. A 20-year time frame was not used for the central analysis, as there are uncertainties about future technological upgrades as well as growth or contraction in the industry.

Core locomotive voice and video recording equipment hardware is expected to last, on average, 10 years, with the assumption that the ongoing maintenance costs would cover repairs over the 10-year period. After the 10-year lifespan is concluded, it is estimated that rail companies would assume costs to completely replace core locomotive voice and video recording equipment hardware. The cost of acquiring and installing this core hardware is estimated to be 20% of the initial locomotive voice and video recording equipment acquisition and installation cost. This cost is not captured by the central analysis, as locomotive voice and video recorder systems would not begin requiring this replacement until 2032, 10 years after the year of compliance of the proposed amendments, while the central analysis only analyzes between 2019 and 2031.

The resulting net present value and break-even point of the 20-year analytical time frame are presented in Table 4.

Discount rate

The central analysis used a 7% discount rate as recommended by the Treasury Board Secretariat. The sensitivity analysis presents the results should a 3% discount rate have been used, as well as if there were no discounting.

Table 4: Sensitivity analysis results

Parameter Changes

Net Present Value with no Safety Benefits

Break-even Annual Occurrences

Break-even (%)

Locomotive voice and video recording equipment purchase and installation cost

Low — $21,282

($61.82M)

9.78

3.53%

High — $31,922

($89.36M)

14.13

5.11%

Locomotive growth rate

2% growth

($88.49M)

14

5.06%

Analytical time frame

20 years

($89.77M)

10.22

3.70%

Discount rate

Undiscounted

($100.27M)

9.73

3.52%

3% discount rate

($88.33M)

10.66

3.85%

Distributional impact analysis

As discussed in the “Affected stakeholders” section, there are 18 rail companies in-scope of the proposed Regulations, with 4 based in the United States and, therefore, not included in the analysis. Of the remaining 14 rail companies, 5 are owned by provincial or federal crown corporations or a municipal/provincial transit service (public rail companies), while the other 9 are privately owned. Table 5 provides a breakdown of the costs to publicly and privately owned rail companies.

Table 5: Distributional analysis — Costs by type of rail company
 

Number of Companies

Number of Existing Locomotives

Total Cost

Average Cost per Rail Company

Privately owned

9

2 511

$70,260,401

$7,806,711

Publicly owned

5

230

$5,561,610

$1,112,322

Costs are not distributed evenly among the private rail companies. Two large private rail companies would assume 94.5% ($66.37 million) of the total cost to private rail companies. Based on publicly available financial information for these two companies, the combined annualized cost of the proposed Regulations would represent roughly 0.025% of the annual revenues of the two companies combined. The other seven private companies would assume the remaining 5.5% of the total cost to private rail companies, which is roughly $3.89 million. The individual cost over the 13-year analytical time frame per company for these seven companies ranges between $144,145 and $1,714,947, with an average of $556,188.

One-for-one rule

The One-for-one rule would apply as there are several requirements within the proposed amendments that would qualify as an administrative burden to rail companies. These proposed amendments would overall be considered an “IN” under the rule.

Rail companies would be required to submit their random selection methodology to TC, identify and communicate which individuals would be authorized to conduct the random selection and access the data; create and maintain snapshots of each time the random selection methodology is used; communicate to TC the designation of a senior manager as the accountable executive; create and maintain records of when voice and video data is used, communicated, and destroyed; and create and maintain test recordings of locomotive voice and video recorder data. TC estimates the annualized administrative costs to be $18,856 or $2,095 per business (Can$2012) footnote 16.

The One-for-one rule does not apply to the proposed amendments to the AMPs Regulations, as there is no change in administrative burden.

Small business lens

All of the affected companies are large businesses. In order to facilitate implementation for all businesses, a transition period of two years from the coming-into-force date was included. The coming-into-force date would be set at two years from the date of publication in the Canada Gazette, Part II. This would provide businesses with a two-year time frame to comply with the proposed Regulations.

Regulatory cooperation and alignment

This regulatory proposal enables regulatory alignment with the United States, as committed to under the Joint Action Plan for the Canada-United States Regulatory Cooperation Council. TC consulted the United States Federal Railroad Administration (FRA) in the development of the locomotive voice and video recorder regulatory policy. The video recording component of the regulatory proposal aligns closely with the Fixing America’s Surface Transportation Act (FAST Act) of the United States, which mandated the promulgation of regulations to require on-board video recording in the locomotives of scheduled passenger or commuter trains.

Below is a comparison of the proposed on-board recording regimes in Canada and the United States.

 

United States

Canada

Proposed scope of application

Set out in the FAST Act

  • Regularly scheduled intercity rail passenger or commuter rail passenger transportation

Set out in the proposed Regulations

  • Rail companies that realized gross revenues of at least $250,000,000 for the provision of rail services in each of the two preceding calendar years that operate controlling locomotives on five or more miles of track within Canada;
  • Rail companies that operate a passenger train service within a municipality or between adjacent municipalities
  • Companies that have 15 or more operating employees, and operate controlling locomotives on 20 or more miles of track within Canada, and operate at least one controlling locomotive at a speed of over 25 miles per hour

Proposed equipment

Set out in the FAST Act

  • Inward- and outward-facing image recording devices

Set out in the proposed Regulations

  • In-cab locomotive voice and video recorders

Proposed uses by rail companies

Set out in the FAST Act

  • Accident or incident investigation
  • Verifying crew compliance with applicable safety laws and the rail carrier’s operating rules and procedures
  • Documenting a criminal act or monitoring unauthorized occupancy

Set out in the Railway Safety Act

  • Determining the causes and contributing factors of a reportable accident or incident that the TSB does not investigate
  • Use of randomly selected voice and video data to identify safety concerns as part of companies’ ongoing safety management

Proposed technical specifications

Set out in the FAST Act

  • Minimum of 12 hours of continuous recording
  • Crash and fire protections would be required
  • Tampering is prohibited and enforceable

Set out in the proposed Regulations

  • 48 hours of recording
  • Environmental standard for the locomotive voice and video recorder systems
  • Crashworthiness standard for the crash-protected memory module

Set out in the Railway Safety Act

  • Tampering is prohibited

Strategic environmental assessment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.

Gender-based analysis plus

Although the majority of the workforce in the rail industry is male, use of the new technology and recordings would apply evenly to employees working in the cabs of controlling locomotives, regardless of gender, culture, socio-economic status, age, geography, ability, sexual orientation, ethnicity, faith, and gender identity. Therefore, no gender-based analysis plus (GBA+) impacts have been identified for this regulatory proposal.

Rationale

Detection of risk

Rail occurrences are the result of a combination of failures or deficiencies of equipment or human actions. The proposed Regulations would enable rail companies, TC and the TSB to collect data on the human actions that may contribute to rail occurrences and that would not be available otherwise. For example, following the 2012 VIA Rail train derailment in Burlington, Ontario, which resulted in the deaths of the 3 operating employees and the injuries of 45 other people, it was not possible for TSB investigators to determine if the actions taken by the operating crew were in line with existing operating requirements and the extent to which this may have contributed to the accident. The lack of information regarding the actions of locomotive operating crew poses a barrier to implementing effective voluntary and regulatory rail safety measures that could in turn reduce the frequency of rail occurrences and save lives.

Assessment of rail occurrences

Between 2007 and 2017, there was an average 1 356 rail accidents and incidents (i.e. types of rail occurrences) reported to the TSB that resulted in an average of 76 fatalities and 57 serious injuries, per year.

Since the voice and video recorders would only be installed in the cabs of controlling locomotives, the proposed Regulations would only reduce the number of occurrences on main tracks where human actions could be a factor and can be avoided. Between 2008 and 2018, there was an average of 279 in-scope occurrences that could have been caused by human actions. It is estimated that there would be an average of 277 in-scope main track accidents per year over a 10-year period of analysis. Based on data obtained primarily from the Federal Railroad Administration Office of Safety Analysis, the average cost of rail occurrences caused by human factors is around $1 million.

Stakeholder support

The proposed Regulations were developed in close consultation with all stakeholders, including rail companies that have indicated an eagerness to adopt the technology.

While there is general agreement among impacted stakeholders on the fundamental value of locomotive voice and video data, there are differences of opinion on the appropriate use of the recordings. Unions have long supported the use of voice and video data for post-accident investigations by the TSB only, but have expressed their opposition to the use of voice and video data by companies, including concerns about the potential for abuse of voice and video data by companies and the infringement of their members’ privacy rights. Companies have expressed support for installing locomotive voice and video recording equipment provided they are able to access voice and video data for proactive safety management.

The Bill C-49 amendments to the RSA provided for expanded use of this information by companies within a proactive safety management framework. When developing the proposed Regulations, the privacy protections and the provisions around the collection, communication, access and use of voice and video data by companies were carefully crafted with the aim of ensuring that the rights and obligations of all parties would be appropriately balanced.

Upholding privacy rights

In order to protect the privacy rights of everyone potentially affected by the new technology, as well as prevent the targeting of employees for any reason, including gender, the following RSA provisions limit the circumstances in which the data could be accessed and used:

Use by the Transportation Safety Board

Use by railway companies and local railway companies

Use by Transport Canada

To further protect the privacy rights of everyone potentially affected by the new technology, provisions in the RSA prevent TC from using the data as evidence to take enforcement actions that exist under the RSA against an individual, including administrative monetary penalties and prosecution in the event of a non-compliance, other than a contravention of subsection 17.31(3) of the RSA. Rather, voice and video data could be used as evidence to support enforcement action against the company.

In addition to the limitations on using the data mentioned above, the proposed Regulations have been developed to uphold privacy rights and to prevent the targeting of individual employees. For example, the proposed Regulations would set out the requirements respecting the random selection methodology that companies and TC would be required to use to access the recordings for safety management purposes and policy development purposes respectively.

If, during the implementation of this initiative, unanticipated gender or diversity impacts are observed on various demographic groups, further analysis will be conducted as appropriate and according to Treasury Board of Canada Secretariat guidelines. Mitigation measures will be identified and implemented as required.

Break-even analysis

The proposed Regulations would affect 14 Canadian rail companies, operating an estimated 2 745 controlling locomotives in 2022, which is the expected coming-into-force year. The total present value cost of the proposed Regulations would be $78.46 million, the majority of which would be for the purchase and installation of the recording equipment.

The availability of locomotive voice and video recorder data would provide efficiency savings for the TSB and rail company investigators, but the majority of the benefits would be from the enhanced safety of the rail system, and the subsequent reduction in rail occurrences. A break-even analysis determined that for the present value benefit of the proposed Regulations to be at least as much as the present value cost, the deterrent effect of the cameras and the potential safety measures adopted by rail companies would have to reduce the yearly number of in-scope occurrences by 4.32%, which TC rail safety experts believe is attainable.

Implementation, compliance and enforcement, and service standards

The proposed Regulations would come into force two years after publication in the Canada Gazette, Part II, for all railway companies and local railway companies that meet at least one of the scope of application criteria. An implementation period of two years provides companies with enough time to purchase and install locomotive voice and video recording equipment or update their existing equipment to bring it into compliance with the technical specifications that would be required by the proposed Regulations.

Voice and video data would be used as evidence by the TSB as part of its existing process of conducting investigations into rail occurrences. There are three phases to a TSB investigation. The first is the field phase, in which an investigator-in-charge is appointed and an investigation team is formed. During the field phase, the investigation team members engage in a number of activities, including securing and examining the occurrence site, interviewing witnesses, and selecting and removing wreckage for further examination. The voice and video data would be removed at this stage.

The second phase in a TSB investigation is the examination and analysis phase, which is when most of the investigation takes place. The TSB engages in a number of activities at this phase, including examining selected wreckage in the laboratory and testing selected components and systems, creating simulations and reconstructing events, reviewing autopsy and toxicology reports, and identifying safety deficiencies. The TSB also reads and analyzes recorders and other data at this phase, which would include voice and video data from locomotive voice and video recorders.

The third and final phase in a TSB investigation is the report phase, in which the investigation report is drafted, reviewed, and ultimately published.

Under the Bill C-49 amendments to the RSA, TC may use voice and video data to investigate the causes and contributing factors of occurrences that are not investigated by the TSB and use randomly selected voice and video data for policy development purposes. Under the proposed Regulations, once a company receives a request for voice and video data for use by TC, the company would be required to ensure that the requested data is downloaded before it is permanently erased. The company would then be required to make the data available to TC and, on request, provide TC with the software and equipment required to use the data.

To support compliance with the proposed Regulations, TC would develop guidance materials and make them available to railway companies and local railway companies on or before the date of publication in the Canada Gazette, Part II, for use by companies during the two-year implementation period leading up to the coming-into-force date.

Once the proposed Regulations come into force, in accordance with the Rail Safety Oversight Policy, TC would take a graduated and proportionate enforcement approach to educate, deter, and, when necessary, penalize those who contravene the RSA or its associated regulations. In the event of non-compliance with the proposed Regulations, TC would consider the company’s behaviour and willingness to comply before taking appropriate enforcement action, which would range from a letter of warning, to an administrative monetary penalty of up to $250,000.

Under the RSA, TC has the authority to use voice and video data as evidence to support the issuance of an administrative monetary penalty to a company; the prosecution of a company; or to trigger an inspection, audit or investigation of a company to determine whether there is a non-compliance or the existence of a threat to safe railway operations.

However, the Bill C-49 amendments to the RSA explicitly prohibit TC from using voice and video data as evidence to support any enforcement action against an individual, with the exception of using the recorded information to support a proceeding against an individual tampering with the recording equipment. All enforcement action would be taken against the company.

To support oversight of the proposed regulatory regime, TC would update and enhance inspector and auditor training and tools to ensure oversight is undertaken by properly trained staff with nationally consistent oversight tools.

To ensure that the proposed amendments to the AMPs Regulations with respect to the proposed Regulations would be applied in a fair, impartial, predictable and nationally consistent manner, guidance materials would be developed to align with Rail Safety Directorate’s existing compliance and enforcement regime. Training would be provided to rail safety officials within existing programs. Adding this guidance to the existing training program would ensure that departmental officials take a standard approach in similar circumstances to achieve consistent results.

Contact

Any questions related to the proposed Regulations should be directed to

Jacqueline Booth
Director
Regulatory Affairs
Transport Canada
Telephone: 613‑990‑8690
Email: jacqueline.booth@tc.gc.ca

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council, pursuant to section 17.95 footnote a, subsection 37(1) footnote b and section 40.1 footnote c of the Railway Safety Act footnote d, proposes to make the annexed Locomotive Voice and Video Recorder Regulations.

Interested persons may make representations concerning the proposed regulations within 60 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 Jacqueline Booth, Director of Regulatory Affairs, Rail Safety, Transport Canada, 427 Laurier Avenue West, Ottawa, Ontario, K1R 7Y2 (tel.: 613‑990‑8690; fax: 613‑990‑7767; email: jacqueline.booth@tc.gc.ca).

Ottawa, May 9, 2019

Julie Adair
Assistant Clerk of the Privy Council

Locomotive Voice and Video Recorder Regulations

General Provisions

Definitions

1 The following definitions apply in these Regulations.

Application

2 These Regulations apply to a company that meets at least one of the following criteria:

Installation of LVVR system

3 (1) Subject to subsection (2), a company must ensure that an LVVR system is installed on every controlling locomotive that it operates.

Exceptions

(2) A company is not required to ensure that an LVVR system is installed on the following controlling locomotives:

Signage requirement

4 A company must ensure that the interior of every controlling locomotive fitted with an LVVR system has signage, written in both official languages and in a font that is clear and readable from the furthest point from the signage inside the controlling locomotive, that

Technical Requirements

LVVR system

5 A company must ensure that an LVVR system

Environmental standards

6 A company must ensure that, upon installation, an LVVR system meets the environmental criteria respecting vibration, shock, bump and temperature testing set out in standard EN50155:2017, Railway applications — Rolling stock — Electronic equipment, published on October 31, 2017 by BSI Standards Limited, as amended from time to time.

Crashworthiness

7 A company must ensure that, upon installation or replacement, a crash-protected memory module

Microphones — voice quality

8 (1) A company must ensure that an LVVR system is equipped with one or more microphones that, collectively, are capable of clearly recording

Technical requirements

(2) The company must ensure that every microphone with which an LVVR system is equipped

Placement of microphones

(3) The company must ensure that the microphones referred to in subsection (1) are positioned in the controlling locomotive in a manner that allows the recording of

Cameras — video quality

9 (1) A company must ensure that an LVVR system is equipped with one or more cameras that record

Placement of cameras

(2) The company must ensure that the cameras referred to in subsection (1) are positioned in the controlling locomotive in a manner that allows the recording of

Additional cameras

(3) For greater certainty, a company that has satisfied the requirements of subsections (1) and (2) may equip an LVVR system with additional cameras that do not meet those requirements.

Coordinated Universal Time

10 (1) A company must ensure that the voice and video data recorded by an LVVR system has accurate date and time stamps expressed in Coordinated Universal Time (UTC).

Synchronization requirements

(2) The company must ensure that

Playback synchronization

(3) The company must ensure that the voice and video data from an LVVR system are capable of being automatically synchronized when viewed using a playback system.

Synchronization testing and validation

(4) The company must perform a test on each LVVR system at least once every twelve months to verify compliance with the synchronization requirements set out in subsection (2).

Record keeping — six years

(5) The company must keep a record of each test performed under subsection (4) for six years from the day of the test, and provide a copy to the Minister upon request.

Test recordings

11 (1) A company must ensure that test recordings are carried out for each controlling locomotive that it operates that demonstrate that the LVVR system conforms to the requirements of section 8, paragraphs 9(1)(c) and (d) and subsections 9(2), 10(3) and 21(1).

Frequency

(2) The test recordings referred to in subsection (1) must be carried out

Record keeping — six years

(3) The company must keep the test recordings required under subsection (1) for six years from the day on which they are carried out and provide a copy to the Minister upon request.

Data Management Requirements

Policy and procedures

12 (1) A company must develop, document, implement and make available to all employees a policy that includes

Record keeping — six years

(2) The company must keep any policy required under subsection (1) that has been replaced for six years from the day on which it is replaced, and provide a copy of any policy, including the most current version, to the Minister upon request.

Accountable executive

13 (1) A company must designate a member of senior management who is responsible for the operations of the company to be accountable on its behalf for meeting the requirements of these Regulations, including implementing the policy referred to in section 12.

Notice to Minister

(2) The company must submit to the Minister, within 30 days after the designation referred to in subsection (1), the name and title of the accountable executive, and a statement signed by that person confirming that they accept the responsibilities of the position of accountable executive.

Authorized persons — voice and video data

14 (1) A company must keep a record of and designate, by name and position, persons who are authorized to

Prohibition

(2) For the purposes of paragraph (1)(c), the company must not designate any person who directly manages operating employees to access or use data under paragraph 17.91(1)(a) of the Act.

Record keeping — six years

(3) The company must keep the records required under subsection (1) for six years from the day on which the record is revised, and provide a copy of any record, including the most current version, to the Minister upon request.

Authorized persons — training

15 (1) A company must provide to each person designated under subsection 14(1) training on the policy required under section 12, prior to the person exercising any responsibilities referred to in paragraphs 14(1)(a) to (c).

Additional training

(2) If the company makes any changes to the policy required under section 12, the company must provide training to each person designated under subsection 14(1) on the changes.

Safeguards — LVVR system

16 (1) A company must ensure that an LVVR system is installed with physical safeguards designed to prevent tampering, including reducing the view of the cameras.

Safeguards — voice and video data

(2) A company must ensure that crash-protected memory modules, and any other storage devices or locations containing voice and video data, have safeguards designed to prevent unauthorized access to the data, including physical measures such as locked filing cabinets and restricted access to offices, organizational measures such as requiring continuous chain of custody, or technological measures such as the use of passwords and encryption.

Server in Canada

17 (1) A company must ensure that any server used to back up or store voice and video data recorded in accordance with these Regulations is located in Canada.

Virtual storage provider

(2) If the company backs up or stores voice and video data using a virtual storage provider, including in the cloud, the company must ensure that the virtual storage provider is accredited as conforming with a current internationally recognized standard respecting information security management systems.

Record of data access or download

18 (1) A company must ensure that any technology used by the company to access or download voice and video data from a crash-protected memory module or a secondary storage location automatically generates an unalterable record every time the data is accessed or downloaded.

Contents of record

(2) The record referred to in subsection (1) must include the following information:

Monthly report

(3) The company must, on a monthly basis, make available to all operating employees a report that includes all the information required under subsection (2) for the preceding month.

Record keeping — six years

(4) The company must keep the records referred to in subsections (1) and (3) for six years from the day on which they are created, and provide a copy to the Minister upon request.

Communication Requirements

Secure communications

19 A company must ensure that all voice and video data is communicated in a format that prevents unauthorized access.

Communications with TSB

20 (1) When voice and video data is communicated to the TSB, a company must provide the software and equipment required to use the data, either in advance of or at the time that the company communicates the data.

Communications with Minister

(2) When voice and video data is communicated to the Minister, a company must make the data available and, upon request, provide the software and equipment required to use the data.

Communications with railway safety inspector

(3) When voice and video data is communicated to a railway safety inspector, a company must make the data available.

Playback of data

21 (1) A company must ensure that voice and video data is capable of being played back in a way that is intelligible and of quality sufficient

Playback system

(2) A company must ensure that any playback system used to review voice and video data allows for an uninterrupted review of the data and includes play, pause, rewind and fast forward functions.

Prohibition — downloading outside of Canada

22 A company must not download outside of Canada any voice and video data recorded in accordance with these Regulations.

Accident and Incident Investigations

Access and use of data — conditions

23 (1) A company must not access and use voice and video data for the purposes of paragraph 17.91(1)(b) of the Act unless

Access and use of data — types

(2) For the purposes of paragraph 17.91(1)(b) of the Act, the data that a company may access and use is

Prohibition — unidentified controlling locomotive

(3) If, at the time of an accident or incident, a company cannot identify which controlling locomotive was involved, it must not use voice and video data for the purpose of making that determination.

Request from Minister or inspector

24 Upon receipt of a request for voice and video data related to an accident or incident for use by the Minister under subsection 17.92(1) of the Act or for use by a railway safety inspector under subsection 17.93(1) of the Act, a company must ensure that the data is downloaded before it is permanently erased.

Random Selection

Application — random selection

25 Sections 26 to 28 and paragraph 29(1)(c) apply to companies that have 15 operating employees or more and operate controlling locomotives on 20 miles or more of track in Canada.

Random selection

26 (1) For the purposes of subsection 17.91(2) of the Act, a company must develop, document and implement a random selection policy that meets the requirements set out in subsection (2).

Random selection policy

(2) The random selection policy must

Selection of day of the month

(3) For the purposes of subparagraph (2)(a)(i), the company must use the random number generator during the week preceding the beginning of the month.

Selection of controlling locomotives

(4) For the purposes of subparagraph (2)(a)(ii), the company must use a sample size of at least two controlling locomotives, but the sample size must not exceed 10% of the total number of controlling locomotives that the company is scheduled to operate in Canada on the day selected using the process set out in subparagraph 2(a)(i).

Selection of start time

(5) For the purposes of subparagraph (2)(a)(iii), the company may include parameters on the selection process to ensure that the selected start times are from the times that the controlling locomotives are scheduled to operate.

Obligation to download

(6) A company must download all voice and video data selected in accordance with the random selection methodology set out in paragraph (2)(a), beginning from the selected start times, before it is permanently erased from the crash-protected memory module or any secondary storage location.

Prohibition — maximum of thirty minutes

(7) A company must not download more than thirty minutes of voice and video data beginning from each selected start time.

Prohibition — repeated selection process

(8) Subject to a request from the Minister under subsection 29(1), a company must not conduct any selection set out in subparagraphs (2)(a)(i) to (iii) more than once for each month.

Random selection — use of voice and video data

27 For the purposes of paragraph 17.91(1)(a) of the Act, a company

Submission of random selection policy to Minister

28 (1) A company must submit a copy of the random selection policy required under subsection 26(1) to the Minister prior to selecting any voice and video data for the purposes of paragraph 17.91(1)(a) of the Act.

Changes to policy

(2) If a company changes their random selection policy after submitting it to the Minister, the company must submit a copy of the updated policy to the Minister prior to using it to select any voice and video data for the purposes of paragraph 17.91(1)(a) of the Act.

Request by Minister

29 (1) For the purposes of paragraph 17.92(1)(a) of the Act, a company must provide to the Minister, upon request, voice and video data that

Request by Minister — list of controlling locomotives

(2) For the purpose of paragraph (1)(b), a company must provide to the Minister, upon request, a list of their controlling locomotives that are scheduled to be in operation in Canada on any day or in any location selected by the Minister.

Request by Minister — downloading data

(3) A company must download all voice and video data requested under subsection (1) before it is permanently erased from the crash-protected memory module or any secondary storage location.

Threats to the Safety of Railway Operations

Prescribed threats

30 For the purposes of subsection 17.91(3) of the Act, a company may use voice and video data to address the following threats to the safety of railway operations:

Employees access to data

31 If a company identifies a threat specified in section 30 when using voice and video data for the purposes of subsection 17.91(1) of the Act, it must

Preservation and Erasure of Voice and Video Data

Erasure of data — secondary storage locations

32 A company must ensure that voice and video data is permanently erased from any secondary storage location before or at the same time that the corresponding data is permanently erased from a crash-protected memory module in accordance with paragraph 5(e).

Erasure of data — when purposes completed

33 (1) If a company preserves voice and video data for any purpose set out in sections 17.91 to 17.93 of the Act, it must permanently erase the data from all storage locations as soon as the data is no longer required for that purpose.

Exception — paragraph 17.91(1)(a) of the Act

(2) Despite subsection (1), if a company uses voice and video data for the purposes of paragraph 17.91(1)(a) of the Act, it must permanently erase the data from all storage locations within 30 days of downloading the data.

Exception — threat to the safety of railway operations

(3) Despite subsections (1) and (2), if a company preserves voice and video data for any purpose set out in subsection 17.91(1) of the Act and uses the data to address a threat to the safety of railway operations set out in section 30, it must preserve the data for at least two years after the day on which the decision to address the threat was made, and permanently erase the data from all storage locations as soon as the following conditions have been met:

Record Keeping

Accessing or using voice and video data

34 (1) Each time a company accesses or uses voice and video data, it must create a record that sets out

Communication of voice and video data

(2) Each time a company communicates or makes available voice and video data to the TSB, the Minister or a railway safety inspector, it must create a record that sets out

Record keeping — six years

(3) The company must keep the records referred to in subsections (1) and (2) for six years from the day on which they are created, and provide a copy of any record to the Minister upon request.

Record of random selection

35 (1) Each time a company randomly selects voice and video data for the purposes of paragraph 17.91(1)(a) or 17.92(1)(a) of the Act, it must

Record keeping — six years

(2) The company must keep the records referred to in subsection (1) for six years from the day on which they are created, and provide a copy of any record to the Minister upon request.

Data used for threats to safety of railway operations

36 (1) Each time a company uses voice and video data to address a threat to the safety of railway operations set out in section 30, it must create a record that includes the following information:

Record keeping — six years

(2) The company must keep the record referred to in subsection (1) for six years from the day on which it is created, and provide a copy of any record to the Minister upon request.

Erasure of voice and video data

37 (1) Each time a company permanently erases voice and video data in accordance with section 33, it must create a record of the following information:

Record keeping — six years

(2) The company must keep the record referred to in subsection (1) for six years from the day on which it is created, and provide a copy of any record to the Minister upon request.

Consequential Amendments and Coming into Force

38 Part 1 of Schedule 1 to the Railway Safety Administrative Monetary Penalties Regulations footnote 17 is amended by adding the following after item 7:

Item

Column 1



Designated Provision

Column 2

Maximum Amount Payable ($)

Individual

Column 3

Maximum Amount Payable ($)

Corporation

7.1

Subsection 17.31(1)

50,000

250,000

7.2

Subsection 17.31(2)

50,000

250,000

7.3

Subsection 17.31(3)

50,000

250,000

39 Schedule 1 to the Regulations is amended by adding the following after Part 5:

PART 6

Designated Provisions of the Locomotive Voice and Video Recorder Regulations

Item

Column 1



Designated Provision

Column 2

Maximum Amount Payable ($)

Individual

Column 3

Maximum Amount Payable ($)

Corporation

1

Subsection 3(1)

50,000

250,000

2

Section 4

50,000

250,000

3

Section 5

50,000

250,000

4

Section 6

50,000

250,000

5

Section 7

50,000

250,000

6

Section 8

50,000

250,000

7

Subsections 9(1) and (2)

50,000

250,000

8

Subsections 10(1) to (4)

50,000

250,000

9

Subsection 10(5)

5,000

25,000

10

Subsections 11(1) and (2)

5,000

25,000

11

Subsection 11(3)

5,000

25,000

12

Subsection 12(1)

25,000

125,000

13

Subsection 12(2)

25,000

125,000

14

Section 13

25,000

125,000

15

Section 14

50,000

250,000

16

Section 15

25,000

125,000

17

Section 16

50,000

250,000

18

Subsection 17(1)

50,000

250,000

19

Subsection 17(2)

50,000

250,000

20

Subsections 18(1) and (2)

50,000

250,000

21

Subsection 18(3)

50,000

250,000

22

Subsection 18(4)

25,000

125,000

23

Section 19

50,000

250,000

24

Subsection 20(1)

50,000

250,000

25

Subsection 20(2)

50,000

250,000

26

Subsection 20(3)

50,000

250,000

27

Subsection 21(1)

50,000

250,000

28

Subsection 21(2)

50,000

250,000

29

Section 22

50,000

250,000

30

Section 23

50,000

250,000

31

Section 24

50,000

250,000

32

Subsections 26(1) to (7)

50,000

250,000

33

Subsection 26(8)

50,000

250,000

34

Section 27

50,000

250,000

35

Section 28

50,000

250,000

36

Subsections 29(1) and (2)

50,000

250,000

37

Subsection 29(3)

50,000

250,000

38

Section 31

50,000

250,000

39

Section 32

50,000

250,000

40

Subsection 33(1)

50,000

250,000

41

Subsection 33(2)

50,000

250,000

42

Subsection 33(3)

50,000

250,000

43

Subsection 34(1)

50,000

250,000

44

Subsection 34(2)

25,000

125,000

45

Subsection 34(3)

25,000

125,000

46

Subsection 35(1)

25,000

125,000

47

Subsection 35(2)

25,000

125,000

48

Subsection 36(1)

25,000

125,000

49

Subsection 36(2)

25,000

125,000

50

Subsection 37(1)

25,000

125,000

51

Subsection 37(2)

25,000

125,000

Coming into force

40 These Regulations come into force on the second anniversary of the day on which they are published in the Canada Gazette, Part II.