Canada Gazette, Part I, Volume 149, Number 26: Regulations Amending the Railway Safety Administrative Monetary Penalties Regulations (Grade Crossings Regulations)
June 27, 2015
Railway Safety Act
Department of Transport
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
The Railway Safety Administrative Monetary Penalties Regulations (AMPs Regulations), which came into force on April 1, 2015, do not contain designated provisions for the recently published Grade Crossings Regulations (GCRs). Amendments are required to close the current enforcement gap, and would complement the existing railway safety oversight regime by providing a full set of compliance and enforcement tools to the Minister of Transport to effectively deal with safety enforcement.
The AMPs Regulations were published in the Canada Gazette, Part II, on October 22, 2014, and included designated provisions for the Railway Safety Act, the 2001 Railway Safety Management System Regulations, the Mining Near Lines of Railways Regulations and the Railway Prevention of Electric Sparks Regulations.
Subsequent amendments to the AMPs Regulations were made following the coming into force of new Railway Safety Act provisions in January 2015 and the coming into force of the Railway Safety Management System Regulations, 2015 in April 2015.
The objective of the proposed amendments is to provide the Minister of Transport with the necessary compliance and enforcement tools by expanding the scope of the existing administrative monetary penalties regime to encompass the recently published GCRs.
The proposed amendments would modify Schedule 1 of the AMPs Regulations by adding a new Part 5 that would include the designated provisions for the recently published GCRs.
The schedules 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.
Level of Risk
Maximum Payable Amount ($)
Maximum Payable Amount ($)
If violation is low-level risk
If violation is medium-level risk
If violation is high-level risk
Examples of designated provisions of the Grade Crossings Regulations and the maximum payable amounts prescribed are as follows:
- Subsection 110(2) requires a railway company to keep records of any warning system malfunction or failure for two years after the day on which the railway company was advised or became aware of any condition that exists that may cause a malfunction or failure: maximum payable amount — $5,000/$25,000.
- Section 92 requires a railway company to ensure that the instrument housing for a warning system is locked when it is unattended: maximum payable amount — $25,000/$125,000.
- Paragraph 103(a) requires a railway company or road authority to notify the other party of a traffic control device that is interconnected with a warning system malfunction even if the malfunction, condition or failure is not confirmed: maximum payable amount — $50,000/$250,000.
Under the Act, 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 the TATC is a quasi-judicial body, its review process is less formal than court proceedings. Thus, an 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.
Industry has been aware of Transport Canada's intentions to introduce an administrative monetary penalties regime to the Rail Safety Program since the 2007 recommendation of the Railway Safety Act Review Panel Final Report. In October 2014, the initial AMPs Regulations were introduced and subsequently published in the Canada Gazette, Part II, on October 22, 2014.
Stakeholders were also informed of the Department's intentions to continually amend the AMPs Regulations to reflect new regulatory requirements at the May 28, 2014, meeting of the Advisory Council on Railway Safety. During February and March 2015, Transport Canada consulted with the following stakeholders on the proposed amendments to the Railway Safety Administrative Monetary Penalties Regulations:
- Canadian railway industry, including all companies under federal jurisdiction, and the Railway Association of Canada;
- Labour organizations including, but not limited to, Unifor, Teamsters Canada Rail Conference, and United Steelworkers;
- Road authorities, municipalities, associations, band councils;
- Representatives of provincial governments; and
- Members of the public.
As a result of the consultations, Transport Canada received one letter from a municipality that was outside the scope of this regulatory amendment. The municipality acknowledged the overall objective of providing an enforcement tool to improve rail safety. The stakeholder requested that Transport Canada establish a reasonable cost-sharing mechanism to mitigate the additional financial burden of complying with the Grade Crossings Regulations.
The “One-for-One” Rule does not apply to this proposal, as there is no change in administrative burden.
Small business lens
The small business lens does not apply to this proposal, as no incremental costs will be imposed on small businesses that comply with the Act and its related instruments.
The amendments to the AMPs Regulations would address existing gaps in the current AMPs regime by capturing the Grade Crossings Regulations. These amendments complement the existing railway safety oversight regime by providing a full set of compliance and enforcement tools to the Minister of Transport to effectively deal with safety enforcement.
The amendments to the AMPs Regulations benefit the Canadian public by allowing Transport Canada to enforce requirements with respect to the GCRs using an administrative process rather than resorting to prosecution in the courts. Criminal proceedings often result in considerable costs to the federal government and to the individual and/or corporation involved.
All government departments, and more specifically Transport Canada, have adopted what is termed a progressive or graduated approach to the compliance or enforcement activities under their authority. Where AMPs are proposed, they are invariably suggested as a complement or supplement to other compliance and enforcement tools. These amendments expand the application of the Minister of Transport's compliance and enforcement tools, thereby increasing rail safety and public confidence.
The objectives of the Act include the promotion and provision of safety and security to the public and personnel, and the protection of property and the environment, in railway operations; the recognition of the responsibility of companies to demonstrate that they continuously manage risks related to safety matters; and the facilitation of a modern, flexible and efficient regulatory scheme that will ensure the continuing enhancement of railway safety and security.
Implementation, enforcement and service standards
The proposed Regulations would modify the existing Schedule 1 by adding Part 5 for the designated provisions for the new GCRs, which came into force on November 28, 2014.
To ensure that AMPs with respect to the new Regulations are applied in a fair, impartial, predictable and nationally consistent manner, guidance materials will be developed to align with Rail Safety's existing compliance and enforcement regime. Training will be provided to Rail Safety officials within existing programs. Adding these guidance materials to the existing training program will ensure that departmental officials take a standard approach in similar circumstances to achieve consistent results.
Any questions related to the amendments to the Railway Safety Administrative Monetary Penalties Regulations should be directed to
PROPOSED REGULATORY TEXT
Notice is given that the Governor in Council, pursuant to section 40.1 (see footnote a) of the Railway Safety Act (see footnote b), proposes to make the annexed Regulations Amending the Railway Safety Administrative Monetary Penalties Regulations (Grade Crossings Regulations).
Interested persons may make representations with respect to the proposed Regulations within 30 days after the date of publication of this notice. All such representations must be in writing and cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Susan Archer, Director, Regulatory Affairs, Rail Safety, Department of Transport, Place de Ville, Tower C, 330 Sparks Street, Ottawa, Ontario K1A 0N5 (tel.: 613-990-8690; fax: 613-990-7767; email: firstname.lastname@example.org).
Ottawa, June 16, 2015
Assistant Clerk of the Privy Council
REGULATIONS AMENDING THE RAILWAY SAFETY ADMINISTRATIVE MONETARY PENALTIES REGULATIONS (GRADE CROSSINGS REGULATIONS)
1. Schedule 1 to the Railway Safety Administrative Monetary Penalties Regulations (see footnote 1) is amended by adding the following after Part 4:
Maximum Amount Payable ($)
Maximum Amount Payable ($)
|1.||Sections 4 and 11||5,000||25,000|
|2.||Sections 5 and 11||25,000||125,000|
|3.||Sections 6 and 11||50,000||250,000|
|4.||Sections 8 and 11||5,000||25,000|
|5.||Sections 9 and 11||50,000||250,000|
|7.||Sections 12 and 18||5,000||25,000|
|8.||Sections 13 and 18||25,000||125,000|
|9.||Sections 14 and 18||50,000||250,000|
|10.||Sections 15 and 18||25,000||125,000|
|15.||Subsections 21(1) and (4)||50,000||250,000|
|16.||Subsections 21(2) and (4)||25,000||125,000|
|17.||Subsections 21(3) and (4)||50,000||250,000|
|59.||Sections 59 and 60||25,000||125,000|
|60.||Sections 59 and 61||50,000||250,000|
|61.||Sections 59 and 62||25,000||125,000|
|62.||Sections 59 and 63||25,000||125,000|
|63.||Section 59 and subsection 64(1)||50,000||250,000|
|64.||Section 59 and subsection 64(2)||50,000||250,000|
|65.||Sections 59 and 65||50,000||250,000|
|66.||Section 59 and subsection 66(1)||50,000||250,000|
|67.||Section 59 and subsection 66(2)||25,000||125,000|
|68.||Section 59 and subsection 67(1)||50,000||250,000|
|69.||Section 59 and subsection 67(2)||25,000||125,000|
|70.||Section 59 and subsection 68(1)||50,000||250,000|
|71.||Section 59 and subsection 68(2)||50,000||250,000|
|72.||Sections 59 and 69||50,000||250,000|
|73.||Sections 59 and 70||50,000||250,000|
|74.||Sections 59 and 71||50,000||250,000|
|77.||Sections 74 and 76||25,000||125,000|
|78.||Sections 74 and 77||50,000||250,000|
|79.||Sections 74 and 78||50,000||250,000|
|80.||Sections 74 and 79||50,000||250,000|
|81.||Section 74 and subsection 80(1)||50,000||250,000|
|82.||Section 74 and subsection 80(2)||25,000||125,000|
|83.||Section 74 and subsection 81(1)||50,000||250,000|
|84.||Section 74 and subsection 81(2)||50,000||250,000|
|85.||Section 75 and subsection 82(1)||50,000||250,000|
|86.||Section 75 and subsection 82(2)||50,000||250,000|
|87.||Sections 75 and 83||50,000||250,000|
|88.||Sections 75 and 84||50,000||250,000|
|89.||Sections 75 and 85||50,000||250,000|
COMING INTO FORCE
2. These Regulations come into force on the day on which they are registered.