Proposed Information-sharing Amendments to the Railway Safety Management System Regulations, 2015

From: Transport Canada

Background

Since 2001, all federal railway companies have been required to implement and maintain a safety management system (SMS) for integrating safety into their day-to-day operations.  On April 1, 2015, the 2001 SMS Regulations, made under the Railway Safety Act, were repealed and replaced by the Railway Safety Management System Regulations, 2015 (the Regulations).  These Regulations compel federally-regulated railway companies and local railway companies to take responsibility for managing the safety of their operations, including the identification of hazards, as well as the assessment and mitigation of risks.

As part of their SMS, all companies that fall under the Railway Safety Act are required to conduct risk assessments when the company:

  • Identifies a safety concern as a result of an analysis of its railway operations;
  • Intends to start transporting dangerous goods or a different type of dangerous goods; or
  • Proposes an operational change that may affect safety of the public or the personnel, or the protection of property or the environment.

When conducting a risk assessment, companies must describe the circumstances that triggered the requirement to conduct a risk assessment, identify risks associated with those circumstances, factors taken into account including the persons who may be affected by the risks, the likelihood that the risk will occur, the severity of its consequences, and actions they will take to address risks that require remedial action.

Following the tragic derailment in Lac Mégantic, public concern increased the demand for greater access to information related to potential risks presented by rail transportation near populated areas.  Companies are not currently required to share any safety management system information with communities in which they conduct railway operations.  Under the Regulations, companies must submit elements of their SMS documentation to Transport Canada; however, without authorization from the company, the department cannot disclose the information as it is subject to limitations of the Canada Transportation Act through subsection 37(3) of the RSA and the Access to Information Act. 

Legislative amendments to the Railway Safety Act, which came into force on June 18, 2015, introduced the authority to regulate the submission of information relevant to the safety of railway operations from one third party to another, such as from a railway company to a municipality.

Objective

The objective of the proposed amendments to the Regulations is to increase municipalities' awareness of railway operations that could present safety risks to their communities, and to inform municipalities of measures taken by companies to reduce or eliminate those risks.

Authority

Subsection 37(1) of the Railway Safety Act (the Act) allows the Governor-in-Council to make regulations:

  1. (a) respecting the keeping and preservation by any person of information, records and documents that are relevant to the safety of railway operations, including a complete set of the regulations, emergency directives, rules and orders made under this Act that apply to that person;
    1. (a.1) respecting the submission of information, records and documents that are relevant to the safety of railway operations by any person other than the Minister to any person specified in the regulations;
  2. (b) respecting the filing with the Minister, including at the Minister’s request, of information, records and documents kept and preserved under regulations made under paragraph (a); and
  3. (c) respecting notification to the Minister by companies of information suitable for monitoring safety performance or predicting potential changes in levels of safety, including information about any accident or incident associated with railway safety or any situation that could have a detrimental impact on safety performance.

Subsection 47.1(1) of the Act allows the Governor-in-Council to make regulations respecting safety management systems including, but not limited to, regulations respecting

  1. (a) the establishment by companies of safety management systems that include
    1. (i) the designation of an executive who is
      1. (A) responsible for operations and activities of a company, and
      2. (B) accountable for the extent to which the requirements of the safety management system have been met,
    2. (ii) the implementation, as a result of a risk management analysis, of the remedial action required to maintain the highest level of safety,
    3. (iii) the continuous monitoring and regular assessment of the level of safety achieved,
    4. (iv) in the case of a railway company, the implementation of non-punitive internal reporting and confidential reporting to the Department of Transport by employees of contraventions of this Act or of any regulations, rules, certificates, orders or emergency directives under this Act relating to safety, or of other safety concerns, and
    5. (v) in the case of a railway company, the involvement of employees and their collective bargaining agents in the ongoing operation of the safety management system;
  2. (b) the development and implementation of safety management systems by companies, including the involvement of employees and their collective bargaining agents in the case of railway companies; and
  3. (c) the criteria to which a safety management system must conform as well as the components that must be included in the system, including the management of employee fatigue.

Overview

The proposed amendments to the Railway Safety Management System Regulations, 2015 (the Regulations) introduce new documentation and information-sharing requirements.  Under the amended Regulations, all local railway companies operating on main track and federally-regulated railway companies will be required to inform affected municipalities of safety risks identified and measures taken to reduce or eliminate those risks, by developing and sharing summaries of risk assessments they are already required to conduct as part of their SMS under certain circumstances.

Companies will be required to prepare summaries of risk assessments triggered by circumstances that may affect the safety of the public, property, or the environment. These circumstances include a proposal to change railway operations, begin transporting dangerous goods, begin transporting a different type of dangerous goods, or increase the volume of the dangerous goods transported.

Summaries will need to include, at a minimum, a description of the issue, risks identified and remedial actions that have been and will be taken to reduce the risks, as well as an attestation signed by the company’s accountable executive, or delegate, that the summary is accurate, complete, and representative.

Before making the change that prompted the risk assessment, companies will be required to share risk assessment summaries with municipalities that may be affected by the risks. Depending on the nature of the safety risk identified, this may include those through which railway operations are conducted, as well as others located nearby. Since unincorporated areas in Canada are governed directly by the province or territory, companies may also be required to inform affected provinces or territories in some instances.

Companies will have the flexibility to determine how they will share the summaries (e.g. by publishing them on the company web site and notifying the Federation of Canadian Municipalities, or sending them to the Chief Administrative Officer of the municipality by email or mail).

Finally, under the proposed amendments companies will be required to keep records of summaries and when, how and with whom they are shared, and provide copies to Transport Canada upon request. In accordance with the Regulations, companies are required keep records for six years after the day on which they are created.

Proposed amendments

The following proposed amendments to the Railway Safety Management System Regulations, 2015 apply to railway companies and local railway companies operating on main trackFootnote 1 that fall under the federal Railway Safety Act. Except where otherwise noted, these additional requirements will be the same for railway companies and local railway companies operating on main track.

Note that this initial draft of new regulatory text is subject to change once revised by legal counsel.

Interpretation

The following definitions will apply to the proposed amendments.

"Chief Administrative Officer" means the person holding the most senior staff position within a municipality, whether that office bears that title or an equivalent one.

“Municipality” means the lowest level of local government having jurisdiction over any place in or near where railway operations occur.

Information Sharing

1.  The company must include, in its safety management system, a planFootnote 2 for sharing information with municipalities, provinces and territories.

Risk Assessment Summary

2.  The company must prepare a summary of a risk assessment conducted under the Regulations when the company:

  1. (a) proposes to begin transporting dangerous goods, or to begin transporting dangerous goods different from those it already transports; or
  2. (b) proposes a change to its railway operations, including a change set out below, that may affect the safety of the public or the protection of property or the environment:
    1. (i) the introduction or elimination of a technology, or a change to a technology,
    2. (ii) the addition or elimination of a railway work, or a change to a railway work,Footnote 3
    3. (iii) an increase in the volume of dangerous goods it transports,
    4. (iv) a change to the route on which dangerous goods are transported, or
    5. (v) a change affecting personnel including an increase or decrease in the number of employees or a change in their responsibilities or duties.

Summary Components

3. (1) The summary of a risk assessment must, at a minimum, include the following information:

(2) The company’s accountable executive must attest that all information included in a risk assessment summary is accurate, complete, and representative by signing and dating the summary.Footnote 4

  1. (a) a concise description of the circumstances that triggered the risk assessment;
  2. (b) a summary of the risks identified; and
  3. (c) a summary of the remedial actions that have been and will be taken to reduce or eliminate risks identified.

Dissemination

4. (1) A company that proposes to make a change referred to in subsection 2(a) or 2(b) must, before making the change, submit the risk assessment summary to the Chief Administrative Officer of each municipality that may be affectedFootnote 5 by the risks identified.

(2) If the company posts a summary of a risk assessment on a public website, and notifies the Federation of Canadian Municipalities when and where the summary is posted, then the company is not required to submit the summary to the Chief Administrative Officer under subsection 4(1).

RecordsFootnote 6

5. (1) The company must keep records of risk assessment summaries prepared under section 2.

(2) For each instance in which the company disseminates a risk assessment summary under section 4, the company must keep a record of:

  1. (a) the date and manner in which the summary was disseminated, and the names of the municipalities to whom the summary was submitted under subsection 4(1); or
  2. (b) the date and location where the summary was posted on the web, and the date and manner in which the Federation of Canadian Municipalities was notified under subsection 4(2).

Filing with Minister

6. The company must, at the request of the Minister, file records kept under section 5 with the Minister.

Coming into Force

7. These amendments come into force one month after the day on which they are registered.

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