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Index
INTRODUCTION Citizens expect laws and regulations by government to protect them or to define their activities within socially acceptable limits. In the case of the automotive industry, the federal government creates laws and regulations to set standards for the safety and environmental performance of new vehicles manufactured in or imported into Canada, and for used vehicles imported from the United States. To be effective, these regulations must be enforced fairly, firmly and consistently across the nation. Those who enforce the law and regulations, and those who must comply, need to understand how they will be applied. These Guidelines on Enforcement and Compliance Policy for the Motor Vehicle Safety Act (MVSA) are intended to inform everyone who shares responsibility for the safety of motor vehicles--governments, industry and individuals--about what is expected of them. They also make clear what may be expected from Transport Canada officials who enforce the MVSA and its regulations. THE MOTOR VEHICLE SAFETY ACT The full title of the legislation is "an Act to regulate the manufacture and importation of motor vehicles and motor vehicle equipment to reduce the risk of death, injury and damage to property and the environment". The Act empowers Transport Canada to issue Canada Motor Vehicle Safety Standards (CMVSS) which regulate the safety and emission performance of new vehicles. Other regulations address proof of compliance and retention of records, and the requirement for companies to issue Notices of Defect according to procedures established by the department. The Act applies to manufacturers engaged in interprovincial trade and importers of vehicles or components into Canada. Key Elements The Act applies only to certain defined classes of vehicles and vehicle components including:
It applies to specified items of motor vehicle equipment such as tires and child restraint systems. The National Safety Mark (NSM) is a Crown trademark. New motor vehicles, tires and child restraints manufactured in Canada and shipped inter-provincially must bear the NSM and must comply with applicable safety standards and regulations. The Minister of Transport authorizes its use and a company must apply for permission to use it. Certification of compliance to applicable standards and regulations is the responsibility of the manufacturer or importer ("self-certification"). Affixing a Statement of Compliance label (SOC) to the vehicle affirms that vehicles bearing the NSM, or imported into Canada, comply with the appropriate standards. When companies become aware of safety-related defects in
their products, they must provide Notices of Defect to Transport Canada and to the owners
of the product. Copies of the Act and Regulations can be obtained from:
AUTHORITIES RESPONSIBLE FOR THE ADMINISTRATION OF THE MOTOR VEHICLE SAFETY ACT Minister of Transport The Minister of Transport has responsibility for the administration of the MVSA. The Minister must act in accordance with the legislation and is accountable to Parliament for his or her actions. Transport Canada The Road Safety and Motor Vehicle Regulation Directorate is the organization within Transport Canada assigned the tasks of administering the MVSA. The Directorate conducts research, develops, incorporates into regulations, promulgates, and enforces standards, and also carries out safety programs. Enforcement Officials : Enforcement officials are individuals designated as inspectors under the MVSA to ensure that companies certifying vehicles and equipment to be in compliance are doing so correctly and that companies are following Notice of Defect provisions. Inspectors will have the most frequent and regular contact with companies affected by the legislation. They are required to identify themselves by a badge and identity card, which must be produced on request. Their role is to:
The specific powers of inspectors include entry, search, seizure and detention of items related to the enforcement of the MVSA, and the authority to require the production of documents and electronically stored data. Defect Investigators
Attorney General And Officials Of The Department Of The Attorney General The Attorney General has responsibility for all litigation relating to the MVSA. Transport Canada enforcement officials recommend prosecutions and present information to the Department of the Attorney General which decides whether to proceed with a prosecution. The courts make the final decisions regarding prosecutions for non-compliance or failing to issue Notice of Defect, including what penalty to impose or what remedy to order. COMPLIANCE AND ENFORCEMENT Compliance means a state of conformity with the law. While certification of compliance is a company responsibility, Transport Canada will monitor and ensure compliance with the MVSA through two types of activity: promotion and enforcement. Measures to promote compliance will include:
To promote the understanding of the regulations respecting the importation of vehicles from the U.S., various publications are distributed to the public and information agents are available to handle inquiries (1-800-511-7755 (english); 1-800-311-8855 (french)). Enforcement activities include:
GUIDING PRINCIPLES The general principles governing the enforcement of the regulations are:
CERTIFICATION TESTING Under the Motor Vehicle Safety Act and regulations made thereunder, the responsibility for certifying compliance of vehicles and equipment rests with the company manufacturing in Canada, or importing into Canada, such vehicles or equipment. The company is prohibited by law to apply a national safety mark to any vehicle or equipment, sell any vehicle or equipment to which a national safety mark has been applied, or import into Canada any vehicle or equipment of a prescribed class unless, amongst other things, records are maintained and furnished in the prescribed form and manner in relation to the testing done by the company on the vehicle or equipment, for the purpose of enabling an inspector to determine whether the vehicle or equipment conforms to all prescribed standards applicable to it. Any testing done by the manufacturer is called certification testing. Canada Motor Vehicle Safety Standards (CMVSS) prescribe the minimum performance levels that vehicles and equipment must meet. To support compliance certification, each CMVSS will either include directly within the standard, or indirectly by reference to another document, the performance requirements against which the vehicles and equipment manufactured or imported are to be measured and compliance determined in an objective manner. These other documents may include an Approved Motor Vehicle Safety Test Method, a Technical Standards Document, and/or another third party published test methodology, and are essential to remove ambiguities about the specified tests and testing methodologies to be used in certification testing. Engineering analyses, computer simulations and other methodologies are useful tools used in the development of vehicles and equipment. However, they are not substitutes for the specified tests and testing methodologies. Unlike the compliance tests conducted by Transport Canada, companies should ensure that their certification testing are conducted at levels slightly higher than the standard to allow for equipment limitations and manufacturing tolerances. Section 10 of the Motor Vehicle Safety Regulations requires that a company maintains records that show that the vehicles and equipment it manufactures or imports conform to all prescribed standards applicable to it and retains those records for at least five years after the date of manufacture or importation. These records must be presented upon demand by an inspector. Results of certification testing conducted as per the specified tests and testing methodologies speak by themselves and will allow a Transport Canada inspector to determine that the vehicles and equipment that the company manufactures or imports conform to all prescribed standards applicable to it. For this reason, Transport Canada considers that results obtained in certification testing conducted as per specified tests and testing methodologies as the only unequivocal manner by which to substantiate the compliance of vehicles and equipment with the prescribed standards. Conversely, certification testing conducted using tests and testing methodologies other than the one prescribed, is not regarded as being adequate to enable a Transport Canada inspector to determine the compliance of a vehicle or equipment. In any audit, companies must be able to demonstrate the compliance of all vehicles or equipment they manufacture or import. However, this does not necessarily require the testing of every vehicle. As an example, the demonstration of compliance for various models of vehicles built on a common platform and sharing identical critical features can be achieved by testing selective representative sample(s) of one of the models. The results of the test(s) can then be extended to cover the other models provided the company can demonstrate a clear, logical and unambiguous link between the test vehicle(s) and the other models built on the same platform. The same approach can also be used for vehicles of different model years where the company can establish the same link. In all cases, the onus of proving the applicability of the test results to the other models for which compliance is being demonstrated rests with the company that manufactured or imported the product. ENFORCEMENT PROGRAM Monitoring and enforcement of industrys self-certification with the Motor Vehicle Safety Act, regulations and non-regulatory industry commitments takes three main forms which provide the de facto basis upon which compliance is assured:
Importation of used vehicles under the provisions of the Free Trade Agreement is controlled by the MVSA. Specific regulations have been established to permit the entry of certain used vehicles in a non-complying state, provided that they are brought into compliance and properly certified prior to being presented to a provincial or territorial licensing agency for registration. Compliance Testing Vehicles and equipment are selected for compliance testing from products offered at the retail level, to ensure that samples are representative of products offered for sale to the public. Samples are selected based on a number of factors, such as market penetration, new technology or new product-line, public-complaint history, and past performance on tests. Compliance tests are performed at levels slightly below the stated standard requirement, to allow for the precision of the test equipment. For example, vehicle barrier compliance tests are performed at an impact speed of 47.5 km/hr, not the 48 km/hr required by the standard.
Test failures in themselves do not necessarily mean a non-compliance situation exists. There is always the possibility of errors in the test program or in the preparation of the vehicle, equipment or component. Each test failure is investigated and discussed with company representatives to establish the cause of failure prior to determination that a non-compliance situation exists. Generally, test results outside a normal statistical variation will be considered sufficient evidence of failure. Marginal failures will normally result in a retest of the product under the same conditions, with a second failure representing a greater level of confidence in the test results. Again, both tests will be investigated to establish cause of failure. It is common practice to have company representatives present during confirmation testing. If, at the completion of the investigation into a test failure, there is a difference of opinion between the company and Transport Canada officials concerning non-compliance, the department may recommend that the situation be resolved in the courts. The Attorney General will be requested to prosecute the company for producing, importing or selling a product not in compliance with CMVSS. Compliance Audits Audits are conducted both on major companies (those building large volumes of vehicles using assembly-line processes) and on smaller companies (those building fewer vehicles, many on a one of basis). In the case of major companies, audits generally concentrate on reviewing certification records, quality-control procedures and running-change documents. Although each sample product purchased is inspected for compliance with visually inspectable standards, the main method of assessing compliance is representative testing as described above. In the case of smaller companies, the primary method of assessing compliance is the review of company records of testing performed to establish compliance. Greater emphasis is placed on inspecting the company products, given that variations between models may exist. Unlike in the U.S., proof of compliance in Canada must be established by testing to the standards. Engineering analysis and judgments, no matter how well documented, are insufficient to confirm compliance according to the MVSA, unless these are backed up by test records. Commercial importers must have access to manufacturing records and be able to produce them upon request. Transport Canada inspectors will normally contact companies and make arrangements to visit at a mutually convenient time, although spot-checks may be made. Companies should be prepared with the necessary information and products for inspection. Another audit method is to inspect at trade shows where many products are on display at one time. This may generate a visit to the company. The MVSA requires that records are maintained and furnished in the prescribed form and manner and that in the case of equipment, the company maintain a registration system. Regulations require that records be maintained for a period of five years. Failure to maintain such records constitutes an offense. Transport Canada inspectors will offer assistance to companies in interpreting the regulations and advise how to correct certain non-compliance situations. Inspectors do not approve products or certify that a product is in compliance. This responsibility rests with the company. It is recognized that certification testing is expensive
and product development can often require several tests. Transport Canada is prepared to
accept representative certification testing on behalf of a group of companies, either as a
consortium or under the auspices of an industry association. A representative product can
be tested and the test records used by all parties, provided that evidence is available
that a companys product is identical in critical features to the test
representative. This type Similarly, Transport Canada is prepared to accept certification testing performed by first- stage manufacturers or equipment suppliers of products such as lamps, axles, brakes, engine emission systems, etc., provided that the second-stage manufacturer does not modify the vehicle or equipment to negate the original certification. An example of this would be a second-stage manufacturer who finishes the vehicle in a manner whereby it exceeds the gross vehicle weight established by the chassis manufacturer. Again, evidence must be supplied that the finished product is within the parameters established by the Original Equipment Manufacturer (OEM). OEM records need not be held by the second-stage manufacturer. Defect Investigations The MVSA requires companies on becoming aware of a defect in the design, construction or functioning of the vehicle or equipment that affects or is likely to affect the safety of any person, cause notice of the defect to be given in the prescribed manner. A safety-related defect is not defined in the MVSA or regulations, but certain criteria have evolved over the years, including several court rulings in Canada and the U.S., that help to describe it:
Transport Canada monitors company compliance with this MVSA
provision by investigating complaints alleging a safety-related defect. Complaints come
from the general public, police agencies, Transport Canada collision investigators,
coroners, consumer agencies, provincial and municipal transportation departments, trade
associations, unions, lawyers, other federal government departments and, in some
instances, from other countries. While the responsibility for determination of a safety-related defect rests with the company, Transport Canada investigators will independently gather evidence to assist in the determination of a safety-related defect in a group of vehicles. If it is believed that the situation is such that a safety-related defect may exist, Transport Canada will develop evidence to confirm its position through vehicle or component inspection, testing and other proven investigative techniques. Further description of these activities is contained in the Defect Investigation Procedures Manual, TP 6891, obtainable from the department. If a company and the department cannot come to an agreement about the existence of a safety-related defect, Transport Canada will prepare a case-file alleging non-compliance with the Notice of Defect provision of the MVSA, and submit it to the Attorney General for prosecution in the courts. Where a company initiates or agrees to take action under the Notice of Defect and Recall provisions, the department will notify provincial authorities, gather and maintain all information necessary to inform the public and publish a recall register giving details about recalls. The department may analyze the proposed corrective action by auditing the success of the recall in terms of number of vehicles corrected, technical adequacy of the repair, methods used to contact owners, and the systems employed by the company to provide reliable data as required by the MVSA Vehicle Importation The Free Trade Agreement applies only to vehicles imported from the U.S. Vehicles designed for sale in Europe are not generally constructed to North American standards and are not normally capable of being modified to meet Canadian requirements. Only manufacturers can certify compliance and most are reluctant to attempt modifications. The MVSA permits certain non-complying American-specification vehicles to enter Canada provided that they are modified to comply prior to being presented for registration with a province or territory. The following enforcement criteria will be used for the importation of American- specification vehicles from the U.S.:
Transport Canada has established a pre-clearance system for new, Canadian-specification vehicles, whereby the importer of vehicles for which the manufacturer has established proof of compliance will be entered on a list and issued a letter permitting direct clearance through Customs. Importers of new vehicles without this pre-clearance will either have the vehicles denied entry or will have the option of entering them into the Inspection and Certification program operated by the Registrar of Imported Vehicles. RESPONSES TO VIOLATIONS Enforcement officials will examine every suspected violation of the MVSA of which they are aware. If they are able to establish that a violation took place and there is sufficient evidence to proceed, they will take action consistent with the criteria outlined below and choose an appropriate response. Responses available to deal with violations of the MVSA are warnings, administrative actions and prosecution. In determining the most appropriate action officials will examine each case on its merits, consistent with the Guiding Principles described earlier. There are some general criteria applied in the determination of what response to implement. These include:
Inspectors may use warnings when:
Warnings will normally be given in writing and will contain the section of the Act or Regulations involved; a description of the alleged offense; a time limit, if appropriate, within which the company must comply with the warning, and the statement that, if the warning is not heeded, enforcement officials will take further action. Defect Investigation officials may also issue public warnings of potentially high-risk situations uncovered during investigations into alleged safety-related defects. In these cases, the company will be notified of the action prior to the warning, or issuance of a press release requesting public cooperation in aiding the investigation. Administrative Actions Enforcement officials may resort to certain administrative actions when:
Administrative actions may include:
Enforcement officials will recommend prosecution of a company to the Attorney General when:
A prosecution under the MVSA may be instituted, tried and determined by a court in any province or territory in which the accused carries on business, regardless of where the subject matter of the prosecution arose. PENALTIES AND COURT ORDERS UPON CONVICTION Penalties prescribed by the MVSA are:
In addition, enforcement officials may request the court to order the issuance of Notice of Defect for all affected vehicles. CONFIDENTIALITY AND PUBLIC DISCLOSURE OF INFORMATION The department must respect a number of statutory requirements in deciding how much information about compliance matters under the MVSA should be disclosed to the public. Both public and private interests must be balanced; industry confidential business information must be considered as well as the publics right to know if situations exist that could compromise safety. Each situation must be judged on its individual merits. In general:
FOR MORE INFORMATION Anyone who has questions about the Enforcement and Compliance Policy or who wishes further information about enforcement procedures should contact:
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