Vol. 151, No. 12 — June 14, 2017
SOR/2017-116 June 2, 2017
CANADA-NOVA SCOTIA OFFSHORE PETROLEUM RESOURCES ACCORD IMPLEMENTATION ACT
Regulations Amending the Canada – Nova Scotia Offshore Marine Installations and Structures Occupational Health and Safety Transitional Regulations
P.C. 2017-575 June 2, 2017
Whereas, pursuant to subsection 210.127(1) (see footnote a) of the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act (see footnote b), a copy of the proposed Regulations Amending the Canada – Nova Scotia Offshore Marine Installations and Structures Occupational Health and Safety Transitional Regulations, substantially in the annexed form, was published in the Canada Gazette, Part I, on December 31, 2016 and a reasonable opportunity was given to interested persons to make representations to the Minister of Natural Resources with respect to the proposed Regulations;
And whereas, the Minister of Natural Resources, pursuant to subsection 6(2) (see footnote c) of that Act, has consulted the minister of the Government of Nova Scotia who is responsible for occupational health and safety with respect to the proposed Regulations and that minister has approved the making of the proposed Regulations;
Therefore, His Excellency the Governor General in Council, on the recommendation of the Minister of Natural Resources and the Minister of Labour, pursuant to section 210.126 (see footnote d) of the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act (see footnote e), makes the annexed Regulations Amending the Canada – Nova Scotia Offshore Marine Installations and Structures Occupational Health and Safety Transitional Regulations.
Regulations Amending the Canada – Nova Scotia Offshore Marine Installations and Structures Occupational Health and Safety Transitional Regulations
1 (1) The definitions Canadian Electrical Code, CCBFC, National Building Code of Canada, National Fire Code of Canada, National Plumbing Code of Canada and ULC Standard in section 1 of the Canada – Nova Scotia Offshore Marine Installations and Structures Occupational Health and Safety Transitional Regulations (see footnote 1) are repealed.
(2) The definition CPR course in section 1 of the Regulations is replaced by the following:
CPR course means a training course in cardiopulmonary resuscitation based on the publication of the Journal of the American Medical Association entitled Standards and Guidelines for Cardiopulmonary Resuscitation (CPR) and Emergency Cardiac Care (ECC) as reprinted by the American Heart Association. (cours RCR)
(3) Section 1 of the Regulations is amended by adding the following in alphabetical order:
ULC means the Underwriters’ Laboratories of Canada. (ULC)
2 The Regulations are amended by adding the following after section 1:
1.1 In these Regulations, any reference to a standard is to be read as a reference to the most recent version of that standard.
3 Subsection 17(3) of the Regulations is replaced by the following:
(3) A portable fire extinguisher that has not less than a 10B rating as defined in the ULC Standard CAN/ULC S508, Rating and Fire Testing of Fire Extinguishers, must be readily accessible from the location of the heating device when the device is in use.
4 Subsection 29(1) of the Regulations is replaced by the following:
29 (1) Commercially manufactured portable ladders must meet the standards set out in CSA Standard Z11, Portable Ladders.
5 Subsection 31(2) of the Regulations is replaced by the following:
(2) The design, construction and installation of a safety net referred to in subsection (1) must meet the standards set out in ANSI Standard ANSI/ASSE A10.11, Safety Requirements for Personnel Nets.
6 Subsection 34(2) of the Regulations is replaced by the following:
(2) For the purposes of subsection (1), the following standards apply:
- (a) for elevators, dumbwaiters, escalators and moving walks, ASME Standard ASME A.17.1/CSA B44, Safety Code for Elevators and Escalators (Bi-National standard, with ASME A17.1);
- (b) for manlifts, CSA Standard CAN/CSA B311, Safety Code for Manlifts; and
- (c) for elevating devices for persons with physical disabilities, CAN/CSA Standard B355, Lifts for Persons with Physical Disabilities.
7 The definition inspector in section 41 of the Regulations is replaced by the following:
inspector means a person recognized under the laws of Canada or of a province as qualified to inspect boilers, pressure vessels or piping systems or a representative of one of the organizations referred to in the definition of certifying authority in section 2 of the Nova Scotia Offshore Certificate of Fitness Regulations who is qualified to perform that function. (inspecteur)
8 Section 50 of the Regulations is replaced by the following:
50 In addition to the requirements of sections 47 to 49, every boiler, pressure vessel and piping system in use at a workplace must be inspected by an inspector as frequently as is necessary to ensure that the boiler, pressure vessel and piping system is safe for its intended use.
9 (1) The portion of subsection 51(1) of the Regulations before paragraph (b) is replaced by the following:
51 (1) A record of each inspection carried out under sections 44 and 47 to 50 must be completed and
- (a) must be signed by the inspector; and
(2) Subparagraphs 51(1)(b)(v) to (vii) of the Regulations are replaced by the following:
- (v) a declaration as to whether, in the inspector’s opinion, the boiler, pressure vessel or piping system is safe for its intended use,
- (vi) if appropriate in the inspector’s opinion, recommendations regarding the need for more frequent inspections or tests than are required by section 47, 48 or 49, and
- (vii) any other observation that the inspector considers relevant to the safety of employees.
10 Section 52 of the Regulations is replaced by the following:
52 This Part does not apply to the lighting of the bridge of a mobile offshore drilling unit, or of the bridge of any ship used for construction, production or diving or for geotechnical or seismic work.
11 Section 58 of the Regulations is replaced by the following:
58 In this Part, sound level meter means an instrument for measuring levels of sound and impulse sound that meets the standards set out in ANSI Standard ANSI/ASA S1.4, American National Standard Specification – Sound Level Meters, and is referred to in that Standard as type 0, 1 or 2.
12 Subparagraph 59(3)(b)(i) of the Regulations is replaced by the following:
- (i) meets the standards set out in CSA Standard Z94.2, Hearing Protection Devices – Performance, Selection, Care, and Use, and
13 Paragraph 61(a) of the Regulations is replaced by the following:
- (a) meets the standards set out in CSA Standard Z94.2, Hearing Protection Devices – Performance, Selection, Care, and Use; and
14 Subsection 74(1) of the Regulations is replaced by the following:
74 (1) All electrical equipment in a hazardous location, as defined in the Canadian Electrical Code, published by the CSA, must be constructed, certified and marked in accordance with that code.
(1.1) However, if the hazardous location is on any ship used for construction, production or diving or for geotechnical or seismic work, the equipment must be constructed, certified and marked in accordance with the standards established by the American Bureau of Shipping, Bureau Veritas, DNV GL or Lloyd’s Register.
15 Subsection 92(4) of the Regulations is replaced by the following:
(4) For the purposes of subsection (3), the minimum capacity of a wash basin must be determined by reference to the applicable municipal by-laws or provincial regulations or, if there are no such by-laws or regulations, by reference to the National Plumbing Code of Canada, published by the Canadian Commission on Building and Fire Codes.
16 Section 97 of the Regulations is replaced by the following:
97 Every employer must provide potable water for drinking, personal washing and food preparation that meets the standards set out in the Guidelines for Canadian Drinking Water Quality, published by Health Canada.
17 Section 102 of the Regulations is replaced by the following:
102 If drinking water is supplied by a drinking fountain, the fountain must meet the standards set out in ARI Standard 1010, Self-Contained, Mechanically-Refrigerated Drinking-Water Coolers.
18 Section 106 of the Regulations is replaced by the following:
106 If food is served in a workplace, the employer must adopt and implement a food safety program that is in accordance with the Guide to Food Safety published by the Canadian Food Inspection Agency.
19 Section 129 of the Regulations is replaced by the following:
129 If a hazardous substance is capable of combining with another substance to form an ignitable combination and a hazard of ignition of the combination by static electricity exists, the employer must adopt and implement the standards set out in the United States National Fire Protection Association publication NFPA 77, Recommended Practice on Static Electricity.
20 (1) Paragraph 135(1)(a) of the Regulations is replaced by the following:
- (a) an airborne chemical agent, other than grain dust, in excess of the value for that chemical agent adopted by the American Conference of Governmental Industrial Hygienists in its publication entitled Threshold Limit Values and Biological Exposure Indices;
(2) Paragraph 135(2)(a) of the Regulations is replaced by the following:
- (a) the standards set out by the United States National Institute for Occupational Safety and Health in its publication entitled NIOSH Manual of Analytical Methods; or
21 Paragraph 136(3)(a) of the Regulations is replaced by the following:
- (a) the workplace is a hazardous location as defined in the Canadian Electrical Code, published by the CSA;
22 (1) Paragraphs 140(2)(a) and (b) of the Regulations are replaced by the following:
- (a) in respect of radiofrequency and microwave devices in the frequency range 10 MHz to 300 GHz, Safety Code 6;
- (b) in respect of X-ray equipment in medical diagnosis, Safety Code 35;
(2) Paragraphs 140(2)(e) and (f) of the Regulations are replaced by the following:
- (e) in respect of ultrasound, Guidelines for the Safe Use of Diagnostic Ultrasound and Safety Code 24; and
- (f) in respect of short-wave diathermy, Safety Code 25.
23 The portion of section 161 of the Regulations before paragraph (a) is replaced by the following:
161 If the conditions set out in paragraphs 160(1)(a), (c), (e) and (f) in the confined space or the nature of the work to be performed in the confined space are such that those paragraphs cannot be complied with, the following procedures apply:
24 Section 170 of the Regulations is replaced by the following:
170 If there is a hazard of head injury in a workplace, the employer must provide to every person granted access protective headwear that meets the standards set out in CSA Standard Z94.1, Industrial Protective Headwear – Performance, Selection, Care and Use.
25 Subsection 171(1) of the Regulations is replaced by the following:
171 (1) If there is a hazard of a foot injury or electric shock through footwear in a workplace, the employer must provide to every person granted access protective footwear that meets one of the following standards:
- (a) CSA Standard Z195, Protective Footwear;
- (b) ASTM International F2413, Standard Specification for Performance Requirements for Protective (Safety) Toe Cap Footwear;
- (c) ANSI Standard Z41, Personal Protection – Protective Footwear; or
- (d) ISO 20345, Personal protective equipment – Safety footwear.
26 Section 172 of the Regulations is replaced by the following:
172 If there is a hazard of injury to the eyes, face, ears or front of the neck of an employee in a workplace, the employer must provide to every person granted access eye or face protectors that meet the standards set out in CSA Standard Z94.3, Eye and Face Protectors.
27 Subsections 173(1) to (3) of the Regulations are replaced by the following:
173 (1) Subject to subsection (4), if there is a hazard of an airborne hazardous substance or an oxygen-deficient atmosphere in a workplace, the employer must provide to every person granted access a respiratory protective device that is listed in the United States National Institute for Occupational Safety and Health’s NIOSH Certified Equipment List.
(2) A respiratory protective device referred to in subsection (1) must be selected, fitted, cared for, used and maintained in accordance with the standards set out in CSA Standard CAN/CSA Z94.4, Selection, Use and Care of Respirators.
(3) If air is provided for the purpose of a respiratory protective device, the air must meet the standards set out in CSA Standard Z180.1, Compressed Breathing Air and Systems and the system that supplies air must be constructed, tested, operated and maintained in accordance with that standard.
28 Paragraphs 176(2)(a) to (i) of the Regulations are replaced by the following:
- (a) CSA Standard Z259.1, Body Belts and Saddles For Work Positioning and Travel Restraint;
- (b) CSA Standard CAN/CSA Z259.2.2, Self-Retracting Devices;
- (c) CSA Standard CAN/CSA Z259.2.3, Descent Devices;
- (d) CSA Standard Z259.2.4, Fall Arresters and Vertical Rigid Rails;
- (e) CSA Standard CAN/CSA Z259.2.5, Fall Arresters and Vertical Lifelines;
- (f) CSA Standard CAN/CSA Z259.10, Full Body Harnesses;
- (g) CSA Standard Z259.11, Personal Energy Absorbers and Lanyards;
- (h) CSA Standard Z259.12, Connecting Components for Personal Fall-Arrest Systems (PFAS);
- (i) CSA Standard Z259.13, Manufactured Horizontal Lifeline Systems; and
- (j) CSA Standard Z259.16, Design of Active Fall-protection Systems.
29 Paragraph 178(1)(a) of the Regulations is replaced by the following:
- (a) a life jacket or personal flotation device that meets
- (i) the Canadian General Standards Board Standard CAN/CGSB 65.7, Life Jackets, or, if the workplace is a ship used for diving, for construction or for geotechnical or seismic work, the International Maritime Organization’s Resolution MSC.81(70), Revised Recommendation on Testing of Life-Saving Appliances, or
- (ii) the Canadian General Standards Board Standard CAN/CGSB 65.11, Personal Flotation Devices; or
30 Subsections 182(1) to (3) of the Regulations are replaced by the following:
182 (1) Every marine installation or structure must be equipped with the fire protection equipment that is appropriate for fighting any class of fire that may occur.
(2) Fire protection equipment must be installed, inspected and maintained in every workplace in accordance with the standards set out in Parts 6 and 7 of the National Fire Code of Canada, published by the Canadian Commission on Building and Fire Codes.
(3) However, if the marine installation or structure is a ship used for diving, construction, geotechnical or seismic work, fire protection equipment may instead be installed, inspected and maintained in accordance with the following standards:
- (a) the standards set out in regulation 10, Fire fighting, of Chapter II-2 of the International Convention for the Safety of Life at Sea (SOLAS), 1974;
- (b) the standards set out in the International Maritime Organization’s International Code for Fire Safety Systems; and
- (c) the standards of the American Bureau of Shipping, Bureau Veritas, DNV GL or Lloyd’s Register.
31 Subsection 185(3) of the English version of the Regulations is replaced by the following:
(3) Every person granted access to a workplace must be instructed in respect of the written emergency procedures referred to in paragraph 178(2)(d).
32 Section 190 of the Regulations is replaced by the following:
190 All portable electric tools used by employees must meet the standards applicable to the particular tool that are set out in CSA Standard C22.2 No. 60745-2, ULC Standard 60745-2 and International Electrotechnical Commission Standard 60745-2.
33 Paragraph 191(c) of the Regulations is replaced by the following:
- (c) are used in a location where reliable grounding cannot be obtained if the tools are supplied from a double-insulated portable ground fault circuit interrupter of the class A type that meets the standards set out in CSA Standard CAN/CSA C22.2 No. 144, Ground Fault Circuit Interrupters.
34 Subsection 194(1) of the Regulations is replaced by the following:
194 (1) All explosive actuated fastening tools that are used by employees must meet the standards set out in ANSI Standard ANSI/ASSE A10.3, Safety Requirements for Powder-Actuated Fastening Systems.
35 Section 195 of the Regulations is replaced by the following:
195 All chainsaws that are used by employees must meet the standards set out in CSA Standard Z62.1, Chain Saws.
36 The heading before section 204 of the French version of the Regulations is replaced by the following:
37 Sections 204 to 207 of the Regulations are replaced by the following:
204 (1) Abrasive wheels must be inspected by a qualified person for defects, cracks or other problems before their installation.
(2) Abrasive wheels must be used only on machines that are equipped with machine guards, mounted between flanges and operated and maintained in accordance with the manufacturer’s specifications.
(3) A bench grinder must be equipped with a work rest or other device that prevents the work piece from jamming between the abrasive wheel and the wheel guard and that does not make contact with the abrasive wheel at any time.
205 A grinder may only be used with an abrasive wheel if the grinder is rated to provide a number of revolutions per minute that is no more than the rating of the abrasive wheel.
Mechanical Power Transmission Equipment
206 All equipment that is used in the mechanical transmission of power must be guarded in accordance with one of the following standards:
- (a) CSA Standard Z432, Safeguarding of Machinery;
- (b) ANSI Standard B11 B15.1, Safety Standard for Mechanical Power Transmission Apparatus; or
- (c) ISO Standard 14120, Safety of machinery – Guards – General requirements for the design and construction of fixed and movable guards.
207 Punch presses must meet the standards set out in CSA Standard Z142, Code for the Power Press Operation: Health, Safety and Safeguarding Requirements.
38 Subsection 209(2) of the Regulations is replaced by the following:
(2) The design and construction of offshore cranes must meet the standards set out in API Standard Spec 2C, Offshore Pedestal-mounted Cranes.
39 Section 218 of the Regulations is replaced by the following:
218 Mobile equipment that is used or operated for transporting or handling combustible or flammable substances must be equipped with a portable dry chemical fire extinguisher that has not less than a 5B rating, as defined in ULC Standard CAN/ULC S508, Standard for the Rating and Testing of Fire Extinguishers, and must be so located that it is readily accessible to the operator while the operator is in the operating position of the equipment.
40 Section 228 of the Regulations is replaced by the following:
228 The design, construction, installation, operation and maintenance of each conveyor, cableway or other similar materials handling equipment must meet the standards set out in ASME Standard B20.1, Safety Standards for Conveyors and Related Equipment.
41 Sections 231 to 233 of the Regulations are replaced by the following:
231 (1) The operation, maintenance and inspection of all draw works and associated equipment must meet the following standards:
- (a) API Standard RP 8B, Inspections, Maintenance, Repair and Remanufacture of Hoisting Equipment; and
- (b) API Standard Spec 8C, Specification for Drilling and Production Hoisting Equipment (PSL 1 and PSL 2).
(2) The operation, maintenance and inspection of offshore cranes must meet the standards set out in API Standard RP 2D, Operation and Maintenance of Offshore Cranes.
Slings and Rigging Hardware
232 The use and maintenance of any sling must meet the standards set out in ASME Standard B30.9, Slings.
233 The use and maintenance of any rigging hardware and other attachments used with materials handling equipment must meet the standards set out in ASME Standard B30.26, Rigging Hardware.
42 Section 273 of the Regulations is replaced by the following:
273 (1) At a workplace in which the total number of employees set out in column 1 of Schedule 5 is normally working, the total number of those employees who must be first aid attendants is set out in columns 2 to 4.
(2) If a physician is available in a workplace, the requirements respecting the presence of a medic do not apply.
Coming into Force
43 These Regulations come into force on August 23, 2017, but if they are registered after that day, they come into force on the day on which they are registered.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the regulations.)
On December 31, 2014, the Offshore Health and Safety Act (OHSA) came into force, amending the Canada–Newfoundland and Labrador Atlantic Accord Implementation Act and the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act (the Accord Acts) with the addition of Part III.1 in each Act. The OHSA and supporting transitional occupational health and safety regulations created a new statutory occupational health and safety (OHS) regime in the Canada-Newfoundland and Labrador and the Canada-Nova Scotia offshore areas (Accord areas).
Since the coming into force of the transitional regulations, there have been a high number of applications for regulatory substitution from the transitional regulations made by proponents of offshore exploration and development activities. The high number of applications for regulatory substitution stems from a limited number of sections of the transitional regulations that relate to requirements that can be unsuitable and unnecessarily burdensome for short-term workplaces (e.g. ships involved in exploration and construction activities), thereby creating challenges with respect to compliance. In addition, the transitional regulations incorporate by reference, in a static manner, a number of technical codes or standards that have been either superseded or withdrawn and not supported any longer by the standard-setting body. Amendments to the transitional regulations are needed to address these unintended consequences.
The new OHS regime applies to all workplaces that have employees involved in the exploration or drilling for, construction and development, production, conservation or processing of petroleum in the offshore area, and also to employees and other passengers in transit to and from offshore workplaces, and between those workplaces.
The OHSA provided for a suite of transitional regulations for each of the Accord areas to enter into force on the same day to support the new regime while new and modernized regulations are developed. The suite of transitional regulations includes, for each of the respective Accord areas, the Offshore Marine Installations and Structures Occupational Health and Safety Transitional Regulations, the Offshore Marine Installations and Structures Transitional Regulations and the Diving Operations Safety Transitional Regulations (collectively referred to herein as the “transitional regulations” or “TOHSR”). The TOHSR are in effect until they are replaced with permanent regulations or five years after their entry into force (December 31, 2019), whichever comes sooner.
The TOHSR are largely based on existing federal regulatory requirements, including the Oil and Gas Occupational Safety and Health Regulations, which are made under the Canada Labour Code and apply to employees working in petroleum resource activities in Canada’s frontier lands and offshore areas outside of the Accord areas. The TOHSR are prescriptive in nature and include static references to a vast number of technical codes and standards.
Part III.1 of the Accord Acts includes a provision that permits the Chief Safety Officer (CSO) of one of the offshore Boards (i.e. the Canada–Newfoundland and Labrador Offshore Petroleum Board (C-NLOPB) or the Canada-Nova Scotia Offshore Petroleum Board) to permit a substitution for any given requirement in the TOHSR, provided the proponent has demonstrated to the satisfaction of the CSO that health and safety will be maintained. The process for requesting regulatory substitution is known as a regulatory query (RQ).
Every application for regulatory substitution received by the offshore Board must be posted publicly for a period of 30 days to allow for public comment. In addition, the application for regulatory substitution must be posted in printed form in a prominent place at the affected workplace and a copy provided to the established workplace committee and to any union representing employees in the offshore area.
In 2015, more than 135 applications from industry proponents requesting regulatory substitution were received by the two offshore regulators, with the majority being received by the C-NLOPB, relating to exploration and development activities. The RQs were predominantly related to the 11 geophysical and construction programs planned for the 2015 season in the Canada-Newfoundland and Labrador offshore area, involving 10 ships (i.e. ships used for construction or for seismic or geotechnical work). All of these programs were considered to be “short-term” programs, each lasting less than six months.
Following the public notice period, and upon review of the extensive supporting technical material, the CSOs approved (some with conditions) nearly all of the processed applications for regulatory substitution related to exploration and development programs planned for the 2015 season.
The TOHSR have requirements that apply not only to the health and safety of the employees on board an offshore marine installation or structure, but also requirements related to aspects of the design, inspection and maintenance of the marine installation or structure. Ships used for construction or for seismic or geotechnical work are types of offshore marine installations or structures that present short-term workplace settings that differ in many ways from a long-term workplace setting, such as an onshore building or a longer-term offshore marine installation or structure.
Ships are generally designed, built and maintained in accordance with classification society rules (class rules). Classification societies are international, nongovernmental organizations that establish and maintain technical standards for the construction and operation of ships. In addition, these ships generally operate under international standards for maritime safety and/or flag state requirements for occupational health and safety.
Compliance with domestic codes and standards related to design, operation and maintenance of the marine installation or structure, particularly those that relate more to long-term workplaces, can often pose difficulty, where the workplace in question is a ship. Ship configuration and design/operation/maintenance standards cannot easily or quickly be changed to meet the regulatory requirements without it being cost-prohibitive and potentially hazardous to do so for short-duration programs.
By contrast, longer-term workplaces, such as fixed and floating production installations, are generally designed and built to operate their full life in the offshore areas, which allows for domestic codes and standards to be the basis of the design criteria; therefore, compliance with domestic requirements is achievable.
As a result, in order for these short-term workplaces to be compliant with the regulatory requirements in the offshore areas, the industry proponent must first identify areas of non-compliance and make an application to the regulator for permission to deviate from the regulatory requirement. Each section of the regulations that requires substitution must be applied for under its own separate application, for each ship, and the proponent must provide sufficient technical demonstration, as well as information regarding the health and safety consequences that might reasonably be anticipated, that the health and safety of employees at the workplace would not be compromised should a substitution be granted.
The vast majority of requests for regulatory substitution stemmed from 14 sections of the transitional regulations. These were noted to be high-volume “repeat” regulatory substitution areas, and are the primary focus area of these amendments, with some regulatory requirements involving as many as 13 separate applications for regulatory query. Regulatory requirements related to food handling/safety, marking of electrical hazardous areas, firefighting and fire-protection equipment, immersion suits and portable tools are a few of the areas that were subject to over 10 separate applications each in 2015, with many of the applications consistently proposing substitutes that are aligned with internationally accepted standards for maritime safety.
The process for having a regulatory substitution approved requires significant attention and time from both the industry proponent and the regulator in order to determine, through sufficient technical demonstration, that the health and safety of employees in the workplace would not be compromised should a substitution be granted. Given that select sections of the TOHSR are unsuitable for ships, the regulatory substitution process required for these particular short-term workplaces created an administrative burden on proponents of exploration and development programs and the regulator, constituting an unintentional barrier to exploration in the region.
Industry proponents were vocal in their concern that the process for application and approval of regulatory substitution applications had the potential to create project delays and result in a significant increase in exploration costs. Given the short weather window available in the Accord areas to acquire seismic or geotechnical data, concern was also raised that the additional administrative burden related to the RQ process may result in compressed timelines to acquire the full data set, potentially jeopardizing or unnecessarily extending some exploration programs.
Some industry proponents looked to means other than the RQ process to bring their ship into compliance with the transitional regulations in areas where the regulatory requirement did not pertain to design or fixed equipment. These industry proponents chose to withdraw their application for regulatory substitution and, rather, purchase/rent new equipment that would comply with the regulations. Portable tools, and protective headwear, eyewear and footwear were some examples of the equipment that industry proponents chose to store and replace with new equipment instead of going through the lengthy RQ process. However, the process of substituting familiar equipment and tools with new and unfamiliar equipment and tools also has the potential to create a new hazard, as the familiarity of employees with the material is potentially reduced.
The objective of these amendments is to reduce unnecessary burden on industry, while maintaining an equivalent level of protection of employee health and safety. Specifically, these amendments seek to ensure that the regulatory requirements can reasonably be met by all offshore workplaces and seek to avoid creating new hazards caused by the introduction of unfamiliar tools and equipment to workplaces involved in short-term activities.
The amendments provide greater flexibility in the regulatory requirements for those sections of the regulations that have been subject to repeat applications for regulatory substitution, so that all offshore workplaces can reasonably meet the requirements while ensuring an equivalent level of protection of employees’ health and safety.
Flexibility for industry has been accomplished in three ways, depending on the nature of the requirement:
- recognition of international standards for maritime safety for the shipping industry;
- recognition of international equivalencies for technical standards; and
- modernization of regulatory requirements to allow for more appropriate application and updating of references to technical standards to allow for the most recent version of the standard to prevail.
Recognition of international standards for maritime safety for the shipping industry
Where a regulatory requirement was deemed to be unsuitable for short-term workplaces (i.e. ships), an alternate requirement has been included in the regulations as an option for compliance. This provides an equivalent level of protection for employees’ health and safety and is appropriate for ships operating both domestically and internationally under short-term programs, such as seismic, construction and geotechnical ships.
The International Convention for the Safety of Life at Sea (SOLAS), a convention to which Canada is a signatory, prescribes minimum safety standards for ships; these standards are recognized in select areas of the TOHSR. For other areas, standards developed by the International Maritime Organization (IMO), a special agency of the United Nations responsible for developing standards for international shipping safety, have been recognized. These areas include fire-protection and firefighting equipment, marine abandonment immersion suits and life-saving appliances (i.e. life jackets).
Where appropriate, these international standards have been supplemented with additional requirements necessary to ensure the amended regulations are appropriate for the unique hazards that exist in the offshore areas.
Recognition of international equivalencies for technical standards
The application of the TOHSR to short-term workplaces, such as the seismic and construction programs carried out in 2015, highlighted the need for recognition of international equivalencies of certain domestic standards referenced within the regulations. Regulatory substitutions were required in order for these short-term workplaces to avoid having to replace existing tools and equipment with new tools and protective equipment that would comply with the domestic standards referenced in the transitional regulations.
Globally, there are many technical standard publishing bodies that produce standards for the specification, guidelines or characteristics for materials, products and processes, and, in the case of standards related to occupational health and safety, many of these are considered to provide an equivalent level of protection for workers. Moreover, progress has been made by many of these standards organizations to move toward harmonizing standards, to ensure a globally consistent practice that reduces barriers to trade.
Where international standards have been deemed through the RQ review process to be equivalent to the respective referenced standard in the transitional regulations, these amendments recognize many of these equivalencies by permitting compliance with either the domestic or equivalent international standard(s). This recognition provides flexibility for the workplace to comply with one of the multiple equivalent standards listed in the amended regulations, thereby reducing the likelihood that new and unfamiliar tools and equipment will be introduced to the workplace.
Modernizing of requirements
Experience with the transitional regulations highlighted that a number of regulatory requirements were in need of modernization, either
- to update a version of the technical standard referenced, to ensure the requirement could be more appropriately applied to all types of workplaces identified under the Accord Acts; or
- to provide a performance-based requirement that sets a goal to be achieved, rather than requiring a prescriptive means of achieving the goal.
Where standards have been incorporated by reference, the amendments update the reference to be ambulatory in nature, allowing the most recent version of the technical code or standard to prevail.
Finally, these amendments correct a small number of minor errors that existed in the original publication of the regulations: incorrect numbering referencing and/or incomplete sentences.
The OHSA introduced transitional regulations that increased administrative burden on business. The administrative burden associated with the transitional regulations was not monetized, nor was it disclosed in a publicly available Regulatory Impact Analysis Statement. While these amendments relieve some of that burden, Natural Resources Canada will not be given credit for an “OUT” under the “One-for-One” Rule.
Industry and stakeholders were consulted on the draft regulatory amendments, to seek their views on the removal of unnecessary administrative burden introduced by the transitional regulations. During the July 2015 stakeholder consultation session, industry was very clear that the issues related to the application of the transitional regulations to short-term workplaces, and the related RQ process, was an administrative burden that had the potential to raise exploration costs significantly. For example, anecdotal evidence provided by the C–NLOPB indicated that one operator stated that their estimated costs associated with RQs for one seismic program were approximately $250,000, which included RQ administrative and technical work, occupational health and safety inspections and renting or buying additional equipment.
Assuming exploration activity levels remain constant in the next three years while permanent regulations are developed, and using the 2012–2015 average number of seismic/geotechnical programs, the annual cost relief to industry for exploration activities could be estimated at $250,000 per seismic program for an estimated total cost savings of $2 million per year. Given this annual estimate, the estimated cumulative cost burden relief to industry for exploration activities during the remaining transitional period is in the range of $6 million. In addition to the cost burden relief for exploration activities, there will also be a cost burden relief for planned construction programs.
The burden relief is not limited to industry. The C–NLOPB estimated that its staff spent a total of 525 hours, or 70 days, of the 2015 seismic season working on the RQs related to the transitional regulations. This is estimated to be equivalent to approximately $85,000 in total cost of staff time. Given this value, the estimated cumulative cost burden relief to the regulator during the remaining transitional period is $255,000.
Total estimated cost burden relief for the remaining transitional period is estimated to be at least $6.255 million.
Small business lens
The small business lens does not apply to the TOHSR amendments, as they do not impact small businesses.
A stakeholder consultation session was carried out in July 2015 to provide stakeholders with an opportunity to provide in-person input to the three governments (Canada, Newfoundland and Labrador, and Nova Scotia) on industry’s experience to date with the transitional regulations. Industry clearly communicated its desire to see changes to the existing issue of applying the transitional regulations to transient ships. It was expressed that an interim solution, such as a regulatory amendment, should be strongly considered.
Labour groups present at the stakeholder consultation session did not express any concern that the substitutions from the regulatory requirements, or the draft amendments, would pose new risks to the health and safety of employees.
In December 2015, key stakeholders were engaged to obtain feedback on the draft amendments. Teleconference sessions were held with the Canadian Association of Petroleum Producers (CAPP), Unifor, the Newfoundland and Labrador Federation of Labour, various geophysical contractor companies with previous and/or planned work in the region, the Newfoundland & Labrador Oil & Gas Industries Association (Noia) and The Maritimes Energy Association. In addition, the draft amendments were provided in electronic format to each of the existing workplace committees in the two Accord areas.
Feedback during the engagement sessions was positive, with stakeholders acknowledging their support of the action the three governments were taking in proposing amendments to the TOHSR. Stakeholders noted that the amendments were reasonable and provided necessary flexibility for workplaces in meeting regulatory requirements.
CAPP and Noia provided written feedback and recommendations on the draft amendments. This feedback was considered and, where appropriate, incorporated into the draft amendments.
In addition, and as part of the RQ process, the general public was provided a 30-day opportunity to comment on each of the processed applications for regulatory substitution. There were no comments received on any of the proposed substitutions.
Pursuant to subsection 6(2) of the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act, the Government of Nova Scotia was consulted prior to prepublication of the draft regulations, and remains supportive of the regulatory amendments.
Pursuant to subsection 7(2) of the Canada–Newfoundland and Labrador Atlantic Accord Implementation Act, the Government of Newfoundland and Labrador was consulted prior to prepublication of the draft regulations, and remains supportive of the regulatory amendments.
Both of the offshore Boards were also consulted on the draft amendments, and remain supportive of them.
Canada Gazette, Part I
These amendments were prepublished in the Canada Gazette, Part I, on December 31, 2016. Four submissions were received during the 30-day public comment period, including the Government of Newfoundland and Labrador, The Maritimes Energy Association, CAPP, and a combined submission from Noia and Subsea 7. The comments provided were all supportive of the action being taken by the Government of Canada and its provincial government partners to amend the transitional regulations in the interim to provide greater flexibility for all workplaces to comply.
Stakeholders noted that those sections of the regulations that were causing the high volume of RQs were appropriately addressed in the amendments. Concerning the amendments that relate to updating the reference to standards from static to ambulatory, feedback was provided from certain stakeholders on ways to further modernize these requirements. This feedback will be considered in the ongoing development of the permanent regulations that will replace the TOHSR by the end of 2019.
Following consideration of stakeholder comments, three revisions were made to the draft amendments:
- Part 6 of the Offshore Marine Installations and Structures Occupational Health and Safety Transitional Regulations prescribes the levels of lighting required in an offshore workplace in Nova Scotia and Newfoundland and Labrador. Section 52, within Part 6, specifically exempts the application of these lighting requirements to the bridge of an offshore drilling unit or a flotation production facility. At the request of stakeholders, this section has been modified to clarify that only offshore drilling units that are considered “navigable” (i.e. that are mobile) are exempted from the lighting requirements, and not those offshore drilling units that are fixed. This change was required so that fixed installations, which may also have drilling units, are not included in this exemption as they, unlike navigable drilling units, have been and can be designed to meet the requirements of Part 6. Fixed installations are usually designed to spend their entire lifecycle in one offshore area, whereas floating installations can jump from jurisdiction to jurisdiction and are therefore equipped to meet baseline international standards. It is therefore possible to design a permanent installation from the outset to meet the requirements, and less so for temporary mobile units.
- Subsection 3(1)(b) of the transitional regulations, which relates to firefighters helmets and visors, has been revised to reference the National Fire Protection Association (NFPA) standard 1971, Standard on Protective Ensembles for Structural Firefighting and Proximity Fire Fighting, rather than the Canadian Standards Association (CSA) standard Z94.1, Industrial Protective Headwear – Performance, Selection, Care and Use, as the CSA standard explicitly excludes firefighting helmets from the scope of its standard. Stakeholders, as well as the Government of Nova Scotia (during the development of their mirror provincial regulations), noted that the more appropriate standard to reference for this purpose was NFPA 1971.
- The Canada-Nova Scotia versions of the amendments to the transitional regulations were revised to reflect a set coming-into-force date of August 23, 2017, or if they are registered after that day, on the day they are registered. This change allows the federal versions of the amendments to enter into force concurrently with the provincial versions. The draft amendments previously indicated that the coming-into-force date of the federal regulations would be the day on which the regulations are registered. For the Canada-Newfoundland and Labrador versions, this continues to be the coming-into-force date. The Government of Newfoundland and Labrador have not published their own mirror regulations, but rather, have directly referenced the federal versions for the interim period.
These regulatory amendments provide more suitable requirements for all offshore workplaces to comply, while maintaining an equivalent level of safety for employees.
Although the current transitional regulations are designed and intended to protect the health and safety of employees who work in the offshore, for short-term workplaces that are ships, the transitional regulations require, at times, replacing familiar tools and equipment on board with new and potentially unfamiliar tools and equipment. This has the potential to introduce more risk to both the workplace and the employee, as their competence and familiarity with the tool or equipment may be reduced, therefore increasing the potential for an incident to occur. These amendments provide flexibility for compliance that would permit the use of certain tools and equipment certified to equivalent international standards, thereby enhancing the level of safety in those workplaces that are involved in short-term petroleum activities in the Accord areas.
In addition, the transitional regulations imposed certain requirements that were unsuitable, and potentially unachievable, for short-term workplaces. This created unnecessary administrative burden for industry proponents, requiring that they make detailed technical applications for regulatory substitution, and for the regulator, who had to analyze and process the applications, for areas that were recognized to be unsuitable and potentially reasonably unachievable for ships. These amendments modify requirements that were deemed unsuitable for certain workplaces by providing alternate requirements that maintain the safety and security of employees.
Industry proponents clearly communicated to governments that the issues related to the application of the transitional regulations to ships, and the related RQ process, were an administrative burden that had the potential to raise exploration costs significantly, should planned seismic programs be delayed due to the administrative process related to RQs. The cost of having a seismic or construction ship moored in port awaiting an authorization could prove extremely expensive, thereby increasing the overall cost of petroleum exploration in the Accord areas.
These amendments provide immediate burden relief to impacted parties, by reducing the administrative burden associated with the RQ process. This will, arguably, reduce costs and unnecessary barriers to offshore exploration. In addition, it is expected that these amendments will reduce the strain on resources experienced by the offshore Boards, thereby reducing operational costs and allowing resources to be allocated to other core mandate duties.
The continued experience with the transitional regulations will help to inform the development of the permanent regulations.
Implementation, enforcement and service standards
The Canada–Newfoundland and Labrador Offshore Petroleum Board and the Canada-Nova Scotia Offshore Petroleum Board are the joint independent agencies of the Government of Canada and Newfoundland and Labrador and Nova Scotia, respectively, which are responsible for the enforcement of the Accord Acts and the regulations that fall thereunder.
Senior Regulatory Officer
Offshore Petroleum Management Division
Natural Resources Canada
1801 Hollis Street, Suite 700
Halifax, Nova Scotia