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Notice - The Compliance Policy is currently under review and should be amended sometime in the year 2005/2006. Table of Contents1. IntroductionThe Government of Canada, through the Railway Safety Act (RSA), promotes and regulates safe railway operations. In the context of the continuing, rapid change in the railway industry, Transport Canada (TC) is modernizing its regulatory approach to meet the needs of the industry and of Canadians generally. This policy is consistent with the Departments vision, mission, strategic objectives and values. The purpose of the Compliance Policy is to guide Railway Safety Inspectors (RSIs) in the use of their statutory powers and in responding appropriately to instances of non-compliance and threats to safe rail operations. The Policy outlines the Departments responsibilities and assures the Minister that there are consistent and appropriate compliance and enforcement tools applied by the Department to ensure that regulated parties are in compliance with the requirements established under the RSA. This Policy applies to RSIs and all other officials of TC in the regions and Headquarters whose responsibilities include promoting and monitoring compliance, responding to non-compliance with the requirements established under the Act, or approving or supporting related policies. The Policy applies to RSI activity relative to all railways and persons to which the RSA applies. This Policy does not apply to activities under Part II of the Canada Labor Code (CLC) (reference: Human Resources Development Canada) or actions under the Canadian Environmental Assessment Act (reference: Environment Canada). Activities of designated RSIs (Security) are covered under the TC Security and Emergency Preparedness Group Inspection and Enforcement Manual, Part IV. A list of relevant definitions is provided in Appendix A. For further assistance and/or clarification concerning the Policy, contact the nearest office of Transport Canada-Surface (listed in Appendix C) 2. PrinciplesThe principles of the Compliance Policy are to ensure - to the fullest extent possible - that TCs Railway Safety Program
By following these principles, TC believes that consistent exercise of its promotional, monitoring and enforcement practices increases respect for its activities in this regard and thereby encourages those concerned to comply with the requirements established by the Act. In support of these principles, it is the Departments policy to ensure that all staff designated as RSIs are provided with the appropriate training and resources to carry out their assigned mandate. 3. Purpose of the Railway Safety ActThe RSA came into force on January 1, 1989. It was substantially revised June 1, 1999. The objectives of the Act are given in section 3, as follows: The objectives of this Act are to
4. Railway Safety Inspectors Statutory PowersAll RSIs have statutory powers that permit them to a) enter places [paragraph 28(1)(a) of the Act]: for the purpose of ensuring compliance with this Act and with the regulations, emergency directives, rules, and orders made under this Act , enter any place, other than a private dwelling-place, where activities are carried on that relate directly or indirectly to the operation of a railway, including railway equipment, b) inspect [paragraph 28(1)(a) of the Act]: and carry out any inspection that the inspector considers necessary in relation to the matters designated by the Minister under section 27 in respect of which the inspector may exercise the powers of a railway safety inspector; c) take copies or extracts of documents [paragraph 28(1)(a.1) of the Act]: require any person appearing to be in charge of the place to produce any document, regardless of physical form or characteristics, for inspection or for the purpose of making copies or taking extracts; d) seize property [paragraph 28(1)(b) of the Act]: seize any property found in the course of that inspection on the railway work or in the railway equipment that the inspector believes, on reasonable grounds, will afford evidence with respect to an offence under this Act, e) submit property to reasonable tests [paragraph 28(1)(b) of the Act]: and may submit that property to reasonable tests; f) require attendance of persons [paragraph 28(1)(c) of the Act]: require the attendance of persons whom the inspector deems relevant to the carrying out of the inspector's functions. g) question those persons required to attend [paragraph 28(1)(c) of the Act]: and may question those persons. h) issue Notices and Orders [subsections 31(1), (2) and (3) of the Act]: 31.(1) Where a railway safety inspector is of the opinion that the standard of construction or maintenance of a line work or railway equipment of a particular railway company poses a threat to safe railway operations, the inspector
(2) If a railway safety inspector is of the opinion that the standard of construction or maintenance of a crossing work threatens safe railway operations, the inspector, by notice sent to the person responsible for the maintenance of the crossing work and to the railway company concerned,
Subsection 31(4) of the RSA places certain restrictions on issuance of Notices/Orders. RSI will not determine that the standard of construction or maintenance poses a threat if the standards conform to all applicable regulations, rules and emergency directives. In order to ensure the highest level of safety to the industry and the public, a RSI shall follow the application of 31(1) of the RSA, with any objections to be reviewed subsequent to the Notice/Order. Unsafe use of road crossing (2.1) If a railway safety inspector is of the opinion that the method of operating a vehicle over a road crossing threatens safe railway operations, the inspector, by notice sent to the driver or operator of the vehicle,
Inspector may forbid operation of certain works or equipment (3) If a railway safety inspector is of the opinion that the operation of a line work or railway equipment of a particular railway company threatens the safety or security of railway operations, the inspector, by notice sent to the company or to any other person who owns or leases the equipment ,
To ensure the highest level of safety, and where an immediate threat is not resolved in the instant, it is normal procedure for an RSI to issue a Notice and Order. i) carry out an investigation of an offence [subsection 28(2) of the Act]:
Powers to enter, seize and test, similar to 4a), 4d) and 4e) above, are all included in this section as follows: To enter such places, section 28(2)(a) states:
To seize property, section 28(2)(b) states:
To submit property to tests, section 28(2)(b) further states:
Powers 4a) to 4h), as previously noted, are the RSIs powers only when inspecting for the purpose of compliance. The powers under 4i) only apply when the RSI is exercising the functions of an investigator of an offence and, by the provisions of the Act, are more restricted. An RSI should refer to the Railway Safety Compliance Manual for full clarification of these sections. 5. Ministers Statutory Powers/Delegation of AuthorityThe Ministers statutory powers are referred to because they constitute an important set of regulatory tools that are available to increase railway safety. The RSA permits the Minister of Transport, among other things to order the removal or modification of any railway work; subsections 32(1) to (3) states: 32. (1) Where, in the opinion of the Minister,
the Minister may
to order that such action as is necessary be taken to remove a threat where a section 24 regulation (e.g., concerning buildings, structures, anything including trees or brush on adjacent lines) has been contravened, and the Minister believes an immediate threat exists to safe railway operations; section 32(3) reads: (3) Where the Minister is of the opinion that a person has contravened a regulation made under section 24, the Minister
The exercise of the above powers have been delegated by the Minister of Transport to the Deputy Minister, the ADM Safety and Security, and the Director General Rail Safety. to issue an emergency directive where the Minister believes that use of a particular railway work, equipment or practice poses an immediate threat to safety; subsection 33(1) states: Minister may send emergency directives 33. (1) If the Minister is of the opinion that there is an immediate threat to safe railway operations or the security of rail transportation , the Minister may, by emergency directive sent to a railway company, order it
Directive despite compliance with law (1.1) The Minister may issue an emergency directive even though
The exercise of this power has been delegated by the Minister of Transport to the Deputy Minister, the ADM Safety and Security, and the Director General Rail Safety. to order a railway to take the necessary corrective measures where a safety management system has deficiencies; section 32(3.1) reads: 32(3.1) If the Minister is of the opinion that the safety management system established by a railway company has deficiencies that risk compromising railway safety, the Minister may, by notice sent to the company, order the company to take the necessary corrective measures. The exercise of this power has been delegated by the Minister of Transport to the Deputy Minister, the ADM Safety and Security, and the Director General Rail Safety. under legislation outside of the RSA, to designate "Ministers Observer" under Section 23 of the Canadian Transportation Accident Investigation and Safety Board Act (CTAISBA). Section 23 of the CTAISBA reads in part: 23. (1) Where the Board is notified of a transportation occurrence, it shall
23. (2) Observers (2) Subject to any conditions that the Board may impose, a person may attend as an observer at an investigation of a transportation occurrence conducted by the Board if the person
The exercise of this power has been delegated by the Minister of Transport to the Deputy Minister, the ADM Safety and Security, the Director General Rail Safety, and the Regional Directors Surface. 6. Activities to Contribute to Regulatory ComplianceActivities in this category contribute to regulatory compliance by determining/defining the conditions, exceptions and consultations surrounding participation in a regulated activity.
7. RSI ActivitiesCompliance with the RSA is encouraged through information, education, monitoring and enforcement. RSIs plan their compliance activities using risk management concepts. These activities will be adequately supported by TC and conducted by qualified RSIs who are fully conversant with the Act and associated regulations, rules, standards, policies and procedures. In the application of the activities listed below - promotion, monitoring and enforcement - the frequency and nature of interventions by RSIs will be determined according to the stage of development of the company, road authority or third party as well as its type of operation. As well, the following additional factors should be considered when deciding what enforcement response to take:
7.1 Activities for Promoting Compliance and Safety The following activities can be undertaken by RSIs to promote compliance and safety.
7.2 Activities for Monitoring Compliance and Safety It is the Departments policy to monitor overall compliance through data collection and subsequent analysis. Data is mainly collected by audits, inspections and the receipt/review of complaints. Information/data sharing between the regions and Headquarters is carried out in a manner respecting the confidentiality of information and ensuring communication only to those legally entitled to receive it.
7.3 Activities for Enforcing Compliance and Safety RSIs have a range of tools to enable them to respond effectively to non-compliance or unsafe conditions. These include a Letter of Non-Compliance, Notice/Notice and Order, and prosecution. This permits RSIs to react appropriately and proportionately to violations of the Act and threats to safe railway operations. Letter of Non-Compliance - This tool is viewed as both a technique to promote compliance and to respond to non-compliance. A letter of non-compliance shall be issued by the RSI on a standardized form that specifies what the non-compliance is and includes a time frame for the regulated party(ies) to detail their corrective action. Failure to correct the non-compliance will result in either progression towards prosecution or the issuance of a Notice/Notice and Order. RSIs carry out follow-up inspections to verify corrective actions undertaken by the regulated party. Notice/Notice and Order - A Notice is a formal registered warning. Pursuant to section 31, a Notice must be issued when an RSI believes that a threat to safety exists. A Notice and Order, which restricts the use of the line work or railway equipment to remove the threat, may be issued if the threat is perceived as immediate. Failure by the regulated party to carry out the obligations included in the Notice and Order leads to immediate civil and/or criminal enforcement. As noted earlier, subsection 31(4) of the RSA places certain restrictions on issuance of a Notice and Order. Review, Alteration and Revocation of Orders - The Act provides a mechanism for the review of an Order. The Minister, if requested to do so by the person or railway concerned, must review the order "forthwith" (subsection 31(9)). This review is normally carried out by, though it is not restricted to, an RSI delegated by the Minister. The Minister is also empowered to alter or revoke Orders, either after the review or on his/her own initiative. A TC official will be delegated to conduct all such reviews. The Act does not stipulate the delay within which a review may be requested, and a regulated party(ies) would be free to make the request at any time. A request for review does not constitute a stay in the application of the Order. Refer to Appendix B for a flow chart that depicts these compliance activities. 8. Consequences of Continued Non-ComplianceThe following details the consequences of continued non-compliance on the part of a railway authority Prosecution - It is TC policy to investigate for the purpose of prosecuting serious or uncorrected non-compliance or the failure to obey Orders issued by RSIs or the Minister of Transport. Authorization to proceed with prosecution rests with the Regional Director Surface. Detailed instructions are provided in the Railway Safety Compliance Manual. Failure to obey an Order or Emergency Directive of the Minister may result in the Order or directive being made an Order of the Federal Court or a Superior Court (section 34). Recourse to the courts by TC is taken only with the concurrence of the Department of Justice. Appendix A - DefinitionsAct - the Railway Safety Act or RSA. Audit - an objective and systematic assessment of policies, processes and/or procedures and the related risks to monitor compliance. Complaint - a verbal or written request to a Railway Safety Inspector to inquire into an alleged contravention of the requirements of the Act or an alleged violation with respect to safe railway operations. Compliance - conforming to legislative provisions including regulations, rules, standards, orders and emergency directives established under the RSA. Condition - an existing circumstance, situation, state, predicament or case. Emergency Directive - under subsection 33(1) of the RSA means a directive to a railway, with a period not exceeding six months, where the Minister believes that use of a particular railway work, equipment or practice poses an immediate threat to safety, even if the use of the railway work, equipment or practice is in accordance with the law. Enforcement - the measures that are taken to bring about compliance. Hazard - a condition with the potential for causing an undesirable consequence. Inspection - an examination to monitor compliance with legislated requirements by directly measuring a product, process or activity. Letter of Non-Compliance - a standardized letter issued to a regulated party that specifies the details of the non-compliance with a time frame for the regulated party to detail their corrective action. Minister - the Minister of Transport and all persons with delegated authority to act on his/her behalf in railway safety matters. Ministers Observer - a person designated under section 23(2) of the Canadian Transportation Accident Investigation and Safety Board Act (CTAISBA) as an observer at a CTAISBA investigation of a transportation occurrence. Notice - a formal written document, issued under section 31 of the RSA, informing a regulated party that a threat to safe railway operations exists. Notice and Order - a formal written document, issued under Section 31 of the RSA, informing a regulated party that an immediate threat to safe railway operations exists and prescribing specific action to remove the immediate threat. Person - an individual or incorporated group having certain legal rights and responsibilities, as defined in subsection 4.1 of the RSA, which "includes a government of a municipality and a road authority." Railway Safety Inspector - any person designated by the Minister as such under section 27.1 of the RSA. Requirements - all provisions contained in the RSA as well as all regulations, rules, standards, orders, emergency directives, etc. established under the RSA. Road Authority - a public authority having legal authority to open and maintain roads (subsection 4.1 of the RSA). Safety Management System - a formal framework for integrating safety into day-to-day railway operations, which includes safety goals and performance targets, risk assessments, responsibilities and authorities, rules and procedures, and monitoring and evaluation processes (subsection 4.1 of the RSA). Threat - a hazard or condition that could reasonably be expected to develop into a situation in which a person could be injured or made to be ill or damage could be caused to the environment or property (subsection 4(4.1) of the RSA). Immediate Threat a hazard or condition that already exists such that a person could be injured or made to be ill or damage could be caused to the environment or property (subsection 4(4.1) of the RSA). Appendix B - Compliance FlowchartAppendix C - Related InformationList of Transport Canada - Surface OfficesNational Capital Region
Transport Canada Regional Offices Related Documents and Internet Sites
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