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Printable Version Guideline on Applying for an Exemption or Filing of a Notice of Exemption is available in PDF format (file size 175kb) which will download in approximately 52 seconds on a 28.8 connection and may be viewed using Acrobat Reader. Note: Portable Document Format (PDF) formats may be viewed using version 3.0 or higher of the Adobe® Acrobat Reader. This reader may be downloaded free of charge by visiting the Adobe® web site. Table of Contents
Appendix Note: Users of this guide are reminded that it has been prepared for the convenience of reference only and, as such, is not legally binding. The procedures and forms recommended in this document are provided solely as a guide and should not be quoted or considered as legal authority. Transport Canada welcomes further comments and input into future revisions of this guidance document as part of the ongoing improvement process with this as well as other publications. I. Background:Subsection 22(4) of the Railway Safety Act1 (RSA) provides railway companies with a mechanism whereby they may apply to the Minister of Transport (the Minister) for an exemption from a specified provision of regulations made under subsections 18(1) or (2.1) or rules in force under sections 19, or 20 of the RSA2. The Minister may grant an exemption application if satisfied that the exemption would be in the public interest and not likely to threaten safe railway operations. Subsection 22.1(1) of the RSA makes provision for railway companies to file a notice of exemption for the purpose of conducting testing related to rail transportation or for an immediate exemption of short duration, in order to be exempted from the application of any provision of standards formulated under section 7, regulations made under subsections 18(1) or (2) or 24(1), or rules in force under sections 19 or 20 of the RSA. The Minister may prevent such an exemption from becoming effective if the Minister is of the opinion that the exemption would not be in the public interest or likely to threaten safety. When a railway company seeks an exemption under subsection 22(4) of the RSA or files a notice of exemption under subsection 22.1(1) of the RSA, the company should provide all of the information and documentation necessary to substantiate their application and help the Minister determine whether the exemption would be in the public interest and not likely to threaten safe railway operations. II. Purpose:The purpose of this guideline is to clarify:
III. Scope:This guideline applies to all railway companies operating in Canada under the legislative authority of Parliament regarding any application for an exemption filed under subsection 22(4) of the RSA, or a notice of exemption filed under subsection 22.1(1) of the RSA. IV. Authority:This guideline is issued under the authority of the Director General, Rail Safety. V. Definitions:For the purposes of this guideline, the following definitions will apply: "Exemption" means an exemption under sections 22 or 22.1 of the RSA. "Minister" means the Minister of Transport, and includes persons designated in writing under section 45 of the RSA to act on the Minister's behalf, as specified in the Transport Canada (TC) Designation Schedule document. "Railway company" means a railway company operating in Canada under the legislative authority of Parliament, and subject to the provisions of the Railway Safety Act. "Railway work" means a line work or any part thereof, a crossing work or any part thereof, or any combination of the foregoing;3 "Relevant associations and organizations" means an association or organization that has been formed to represent the interests of
"RSA" means Railway Safety Act, R.S.C. 1985, c.32 (4th Supp.). VI. Assumptions:This guideline has been developed based on the following assumptions:
Note: Failure to provide all necessary information and documentation might result in the application being refused or its processing being delayed. VII. Required and Recommended Information:When a railway company applies for an exemption or files a notice of exemption, there is particular information and documentation that the railway company is required to provide by the RSA, as well as additional information and documentation that Transport Canada recommends that it provide, to substantiate its proposal and facilitate the Minister’s assessment of it. Required Information:With respect to required information, in accordance with the RSA, when applying for an exemption under subsection 22(4) or filing a notice of exemption under 22.1, a railway company must provide the Minister with the following information and documentation:
Note: Section 11 of the RSA requires the following: "All the engineering work relating to railway works, including design, construction, evaluation or alteration, shall be done in accordance with sound engineering principles. A professional engineer shall take responsibility for the engineering work." Recommended Information:With respect to recommended information, to facilitate the Minister’s assessment of whether a proposed exemption is in the public interest and not likely to threaten safe railway operations, it is strongly recommended that a railway company provide the Minister, at the time of application or filing, with the following information and documentation: Description of the Proposal
Implementation Details
Risk Assessment
Note: It is recommended that the railway utilize the Canadian Standard Association (CSA) Standard CAN/CSA-Q850-97 Risk Management Guideline for Decision-Makers, as amended from time to time. The CSA guideline is intended to assist decision-makers in effectively managing all types of risk issues, including injury or damage to health, property, the environment, or something else of value. Other risk assessment methodologies may also be used. Consultation
Notes:
VIII: Consideration of the Application or Notice:Upon receiving an application for an exemption or a notice of exemption, the Minister considers whether, in the Minister’s opinion, the exemption would be in the public interest and not likely to threaten safe railway operations. In making this determination, the Minister may take into consideration the information provided by the railway (as listed above), and any other factors the Minister considers relevant, such as whether:
TC Rail Safety may contact the filing railway company to discuss its exemption application or notice after it has been filed (e.g., to request further information or clarification with respect to the proposal or its supporting documentation). If TC Rail Safety determines that it requires further information to evaluate such an application or notice, it seeks to request that information in a timely manner. A railway company may likewise contact TC Rail Safety officials to discuss its proposal after filing it. However, if a railway company chooses to contact TC regarding its proposal, it is advised to seek to complete such discussions at least ten (10) working days before the end of the applicable assessment period; after which time, additional information might not be accepted. In the case of an application for an exemption under subsection 22(4), the Minister has a period of 60 days to consider the application and provide the applicant notice of the Minister’s decision. However, the Minister may, for any reason (e.g., to provide a railway company additional time to provide further information requested by TC Rail Safety), extend the 60-day period for granting an application for an additional period of up to 60 days. The Minister's decision with respect to an application for an exemption under subsection 22(4) will be conveyed to the applicant railway company in the form of a notice. If the Minister decides to grant the application, the notice may specify terms or conditions upon which the exemption application is being granted. Terms and conditions so specified are binding on the railway company in the implementation of the particular exemption. Before recommending that the Minister approve an application on certain terms and conditions, TC Rail Safety may, when practicable and appropriate, endeavor to contact the railway company in a timely manner to inform it of those possible terms and conditions. In the case of a notice of exemption filed by a railway company under subsection 22.1(1), the exemption is effective only if within 21 days after filing the notice with the Minister and each relevant association and organization likely to be affected by it: the company receives a response from the Minister and each of those associations and organizations indicating that they do not object to the exemption; or, no objections are either confirmed or made by the Minister. Each relevant association and organization may object, on the grounds of safety, to an exemption proposed under subsection 22.1(1) within fourteen days after the notice was filed. The Minister may: confirm such an objection within seven days of it being filed; or, object to the proposed exemption if the Minister is of the opinion that it would not be in the public interest or that it is likely to threaten safety. IX. Administrative SuggestionsThe following suggestions are offered as a means of facilitating the administrative aspects of processing an application or filing a notice of exemption:
X. Review:
XI. Contact:Questions, comments or suggestions on improving this guideline should be directed to the office of:
Mr. Don Pulciani Telephone: 613-990-8690 Appendix I: Rail Safety – Contact InformationRegional Offices:AtlanticRegional Director OntarioRegional Director PacificRegional Director QuébecRegional Director Prairie & NorthernRegional Director Headquarters:Director, Safety Policy & Regulatory Affairs Appendix II: Summary of Relevant RSA Provisions7Guide to Exemptions of Section 22 to 24 8
Notes: 1. More information on the RSA can be found at: http://laws.justice.gc.ca/en/R-4.2/index.html 2. For information on requesting approval of a non-standard railway work, please consult the Guideline on Requesting Approval to Undertake Certain Railway Works at: http://www.tc.gc.ca/railway/guideline/railway_works.htm 3. Definitions of “crossing work” and “line work” can be found at: http://laws.justice.gc.ca/en/R-4.2/index.html 4. Refer to the Guideline - Engineering Work Related to Railway Works (Section 11- RSA) available at the following web site http://www.tc.gc.ca/railway/RSA/RSA_english.htm 5. Refer to the Guideline - Engineering Work Related to Railway Works (Section 11- RSA) available at the following web site http://www.tc.gc.ca/railway/RSA/RSA_english.htm 6. The list of Rail Safety offices is found in Appendix I. 7. For more detailed information see: http://laws.justice.gc.ca/en/R-4.2/index.html 8. Notes:
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