SOR/2016-317: Prevention and Control of Fires on Line Works Regulations
REGISTRATION OF FEDERAL REGULATION - VIA OIC DATABASE, PRIOR TO PART II OF THE GAZETTE
December 16, 2016
REGULATORY IMPACT ANALYSIS STATEMENT (This statement is not part of the Regulations.) Issues Fires caused by railway operations can become a significant threat to public safety and the environment. The Rules for the Control and Prevention of Fires on Railway Rights-of-Way (the Rules) lack clear compliance and enforcement provisions and are outdated. For example, many provisions are subjective, ma... (Click for more)
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Published on December 16, 2016
SOR/2016-317: Prevention and Control of Fires on Line Works Regulations
REGULATORY IMPACT ANALYSIS STATEMENT (This statement is not part of the Regulations.) Issues Fires caused by railway operations can become a significant threat to public safety and the environment. The Rules for the Control and Prevention of Fires on Railway Rights-of-Way (the Rules) lack clear compliance and enforcement provisions and are outdated. For example, many provisions are subjective, making enforcement difficult. Not all companies that are subject to the Railway Safety Act (RSA) are subject to the Rules. Furthermore, affected third parties were not consulted during the drafting of the Rules. Background Under the Railway Safety Act, the Rules for the Control and Prevention of Fires on Railway Rights-of-Way were developed in 1995 by the Railway Association of Canada on behalf of railway companies. In its report, Stronger Ties: A Shared Commitment to Railway Safety, the 2007 RSA review panel noted that the Rules were not effective. The RSA review panel also commented that since the Rules involved third parties, they should be replaced by regulations so that relevant stakeholders are consulted. Subsequently, the RSA was amended in 2012 to expand regulation-making authorities regarding the prevention and control of fires on railway works. Furthermore, the 2013 report from the Office of the Auditor General (OAG) regarding rail safety oversight recommended that Transport Canada accelerate the resolution of important long-standing safety issues and implement the recommendations raised in the RSA review. The OAG also noted that regulations should be developed for the prevention and control of fires on railway property to replace the Rules. On May 1, 2013, local railway companies became subject to the RSA when operating on federally regulated railway lines. As it stands, local railway companies are not subject to the Rules. Objectives The key objectives of this initiative are to enhance rail safety by reducing the likelihood of fires occurring on line works; clarify the requirements with respect to the prevention and control of fires to facilitate compliance and enforcement; and extend requirements for the prevention and control of fires to all companies that fall under federal jurisdiction. Description The Prevention and Control of Fires on Line Works Regulations (the Regulations) are designed to improve upon the Rules by enhancing the planning and preventative measures railway companies must follow, which will reduce the likelihood of fires caused by railway operations. The Regulations intend to replace the Rules and include the following changes: revise the existing requirements by providing more detail to regulatory objectives in order to enhance compliance and enforceability; introduce new requirements for railway companies in regard to the control and prevention of fires; and expand the scope of the existing regime to include all companies under federal jurisdiction. Rules revisions Fire preparedness plans Under the Rules, railway companies are required to develop fire prevention and control plans. The Regulations maintain this requirement but give greater precision as to the content of those plans and require railway companies to update their plans every five years. For example, the Regulations specify that a railway company’s fire preparedness plan must include procedures for extinguishing or controlling a fire, internal notification procedures, and procedures for notifying fire services. Along with their plans, railway companies are also required to keep up-to-date emergency contact information. Fire hazard reduction plans Under the Rules, railway companies are required to have fire prevention and hazard reduction practices as well as a plan that demonstrates how they comply with this requirement. The Regulations formalize the requirement that railway companies must develop fire hazard reduction plans and go further by specifying the content of those plans. For example, a railway company’s fire hazard reduction plan must contain a process for identifying fire hazards, measures for reducing or eliminating fire hazards when they are identified, and a breakdown, for each level of fire danger, of the fire prevention measures and fire suppression equipment that will be used when conducting high-risk work. Under the Regulations, these plans are to be updated every five years. Training While the Rules required that railway companies provide training for employees, the Regulations are more specific by requiring that railway companies ensure employees performing high-risk work (defined below) or who supervise contractors who perform high-risk work are trained on the prevention and control of fires. The Regulations also require that railway companies keep training records which enable better compliance and enforcement of the Regulations. New regulatory requirements High-risk work The Regulations introduce the concept of high-risk work, defined as work that involves the use of rail grinding trains and the controlled burning of brush, as well as a number of requirements that companies must comply with when conducting this type of work. For example, when undertaking operations considered high-risk work, railway companies are required to notify the relevant fire service if the level of fire danger is rated as high to extreme on the Canadian Wildland Fire Information System interactive map that is published on the Natural Resources Canada website. Railway companies are required to keep records of their communications with fire services. Fire suppression equipment Railway companies are required to ensure that employees and contractors who perform high-risk work have the fire suppression equipment as set out in the railway company’s fire hazard reduction plan. Moreover, railway companies are required to maintain their fire suppression equipment and conduct annual inspections to ensure it is in good working order. Record keeping Railway companies are required to keep all records, plans or documents required under the Regulations for five years from the day on which they were created and to provide copies to the Minister of Transport upon request. Expansion of the scope to include all companies under federal jurisdiction Local railway companies Local railway companies operating on federally regulated track were not subject to any regulatory requirements regarding the control and prevention of fires. The Regulations apply in part to local railway companies. Local railway companies are required to adhere to the same requirements concerning the control and extinguishment of fires as railway companies, to develop fire preparedness plans, and to keep up-to-date emergency contact information. Local railway companies are required to keep all plans and records related to the Regulations for five years from the day on which they are created. Consultation Transport Canada consulted with the following stakeholders during the development of the Regulations: the Canadian railway industry, including all railway companies under federal jurisdiction and the Railway Association of Canada; labour organizations including, but not limited to, Unifor, the Teamsters Canada Rail Conference, the United Transportation Union, and the Brotherhood of Locomotive Engineers; representatives of provincial governments; and the representative of the Federation of Canadian Municipalities. In March 2015, the above-mentioned stakeholders were initially consulted on this regulatory proposal and no major concerns were raised. Minor issues that arose included general application questions, such as the scope and intent of the Regulations. Examples of the issues raised included preventing overlap between requirements in the Regulations and clarifying the respective obligations for railway companies and local railway companies. The comments submitted by industry in these initial consultations were considered and addressed during policy development and regulatory drafting processes. The Regulations were also presented during a teleconference with the Federal Provincial Working Group on Rail Safety at which time no concerns were raised. Consultation following publication in the Canada Gazette, Part I The Regulations were published in the Canada Gazette, Part I, on May 21, 2016. One written submission was received during the 30-day comment period. The majority of comments were interpretation issues. All concerns raised in the stakeholder submission were carefully considered and addressed as set out below. Transport Canada agreed with the stakeholder that fire plans do not have a prescribed format and the use of the terms “record” or “document” could be more than a single record or a single document. It was further explained that “employees who conduct railway operations” does not need to be defined as the broader term provides railway companies more flexibility. Transport Canada did change the regulatory text from “contact list” to “contact information” to clarify that the information could be in the preferred format of the company. Transport Canada disagrees with the comments that the Regulations do not take into consideration the concept of seasonality. When the interactive map is not available, and if the fire risk is unknown, the railway company will have to assume at least a moderate fire danger level and comply with subsections 14(2), 16(2) and 17(2). However, during the winter months, if the map is available and indicates a low or non-existent fire danger level, a railway company does not need to comply with the above-noted subsections. This approach will eliminate unnecessary burden on companies while still ensuring that they are taking necessary precautions if the fire danger level is unknown. The Canadian Wildland Fire Information System interactive map is a national system accessible via the Internet and is updated daily. A comment suggested that local railway companies (LRCs) should only be required to know what to do when they observe a fire while operating on the host railway and that any additional requirements create an unnecessary administrative burden and should be removed. Transport Canada agrees that LRCs should know what to do when they observe a fire, but in order to ensure compliance with this requirement, LRCs are required to have documented procedures as set out in their fire prevention plans. It should also be noted that Part 2 of the Regulations contains partial requirements for LRCs recognizing that they only operate on track owned by railway companies. Four of the comments were regarding alignment of these Regulations with provincial regulatory requirements. These Regulations apply in respect of fires on line works regardless of who caused them, how they were caused or where they started. Specifically, the intent of the Regulations is to ensure the control and prevention of fires on federally regulated track, an area where provincial jurisdiction does not apply. Although provincial regimes contain similar fire prevention and hazard reduction plans, these are not geared to the same type of fire or risk. Provincial fire prevention is mainly geared to forest fires or environmental protection and there is no consistency across provinces. Concern was expressed regarding the protection of the plans, risk assessments or records from disclosure, as they may contain sensitive information from a safety and security standpoint. This information is protected from disclosure under subsection 37(3) of the RSA, which deems information provided to the Minister as if it were provided under the Canada Transportation Act. Another comment suggested that the notification to fire services is an unnecessary burden and that addressing it as part of the plan would deliver the same safety benefit. Transport Canada believes that the benefit of notifying the fire service prior to performing high-risk work increases rail safety, public safety, environmental protection and may prevent catastrophic incidents. This is an enhancement to the Rules as both railway employees and fire services would be aware of potential fire risks. This requirement will further allow better enforcement of fire prevention measures across Canada and close the gap identified in the panel report recommendation. Two comments suggested that keeping records of notices to fire services and of training providers do not offer safety benefits. These types of records allow better oversight by Transport Canada and will address the enforcement gap identified in the panel report recommendation. With respect to costs and administrative burden, the stakeholder commented that the wage rates were understated, did not include overhead, and that the costs for LRCs were also understated. Like any regulations, the costing of regulatory requirements only pertains to incremental costs; those that are over and above existing requirements. In this case, railway companies are already complying with the Rules. However, LRCs are required to comply with less requirements. Transport Canada utilizes the wage rates based on Statistics Canada and the Regulatory Cost Calculator set out by the Treasury Board Secretariat. Following the comments, Transport Canada reviewed overall costing. It was determined that wage rates and overhead costs required updating. Initially, the Regulations proposed that the plans be updated annually. However, based on stakeholder comments, the requirement was adjusted for every five years. As a result, this change has decreased the cost of the hazard reduction plans. “One-for-One” Rule Transport Canada has considered the potential impacts of all provisions of the Regulations on administrative burden, and it determined that the “One-for-One” Rule applied to these Regulations, with an annualized “IN” value of $3,251. The total administrative burden for the 36 local railway companies and the 31 railway companies is estimated to have a present value of $26,143 over a 10-year period. The administrative costs from these Regulations stem from the requirement for companies to keep records of all documents and plans for five years from the day on which they were created. An hourly wage rate of $22.09 (or $27.61 with 25% overhead) for non-supervisory personnel was used. It is assumed that it will take railway companies two hours annually to file and store these records. Since local railway companies have less record-keeping obligations, it is assumed that it will take them one hour annually to file and store these records. Initial costing assumptions developed by Transport Canada were shared with the Regulatory Development Working Group of the Advisory Council on Rail Safety. Transport Canada also worked closely with industry to develop the cost assumptions. Given that this is a new regulation that imposes an administrative burden on business, the Department of Transport will be required to repeal a regulation as per subsection 5(2) of the Red Tape Reduction Act. Small business lens The small business lens does not apply to this proposal, as the cost is estimated to be below $1 million annually. The Regulations are designed to impose minimal administrative burden on companies and to ensure that a disproportionate burden will not fall on small businesses. Of the 67 companies impacted by the Regulations, Transport Canada estimates that 5 are small businesses. Rationale The Regulations address the recommendations of the RSA review panel and the 2013 OAG audit, as well as close the existing gap with regard to local railway companies. The Regulations also formalize and enhance several elements from the Rules to clarify the roles of companies in regard to the prevention and control of fires, thereby increasing rail and public safety. Furthermore, by clarifying the Regulations, in terms of specifying the content of the fire preparedness plans and fire hazard reduction plans, enforcement and compliance with the Regulations will be easier. The cost to comply with the Regulations has been estimated in consultation with the stakeholders and varies according to the requirements for larger Class 1 railway companies that operate across the country, smaller railway companies, and local railway companies. There are currently 2 Class 1 companies, 29 smaller railway companies, and 36 local railway companies. Costs are associated with the incremental costs to meet the requirements of the Regulations. These incremental costs include initial, ongoing and administrative costs assumed on a regular basis. Costs were not calculated for requirements that companies must already comply with under the Rules or for provisions which are triggered by events. For smaller railway companies and local railway companies, assumptions are based on average costs. Some companies may have slightly larger operations than others, which can give rise to slightly higher costs, whereas others may have smaller operations and therefore lower costs than average. Assuming an average hourly wage rate of $27.61 for non-supervisory personnel and $37.38 for supervisory personnel (this includes 25% overhead), the present value (PV) of the costs to Class 1 railway companies is estimated to be $84,984 over a 10-year period, which corresponds to an annualized value of $12,100. The present value of the cost to smaller railway companies is estimated to be $208,564, with an annualized value of $29,695; for local railway companies, the present value of the cost is estimated to be $67,082, with an annualized value of $9,551. Therefore, the present value of the total cost to industry is estimated to be $360,630 over a 10-year period, which corresponds to an annualized value of $51,346. This corresponds to an average present value of $42,492 and annualized value of $6,050 per Class 1 railway company, an average present value of $7,192 and annualized value of $1,024 per smaller railway company, and an average present value of $1,863 and annualized value of $265 per local railway company. Table of estimated costs by provision This table shows the estimated costs by provision. Total incremental costs (in 2015 $) Total incremental costs (in 2015 $) Total incremental costs (in 2015 $) Total incremental costs (in 2015 $) Total incremental costs (in 2015 $) Regulatory Provision Class 1 Railway Companies (PV) Smaller Railway Companies (PV) Local Railway Companies (PV) Total (PV) Control and extinguishment of fires N/A N/A N/A N/A High-risk work N/A N/A N/A N/A Hazard reduction plans $4,212 $8,725 N/A $12,937 Fire preparedness plans N/A N/A $37,482 $37,482 Communication of plans to employees $857 $12,428 $7,714 $21,000 Records of communication to employees $857 $12,428 $7,714 $21,000 Training N/A N/A N/A N/A Training records $857 $12,428 N/A $13,615 Fire suppression equipment $66,491 $137,731 N/A $204,222 Fire suppression equipment inspection records $4,433 $9,182 N/A $13,615 Record keeping $6,000 $12,428 $7,714 $26,143 Contact information $1,277 $3,212 $6,458 $10,946 Total costs to industry $84,984 $208,564 $67,082 $360,630 Requiring that companies take a more proactive approach to fire prevention enhances rail safety by reducing the likelihood of fires caused by railway operations. Furthermore, the Regulations are designed in such a way that the burden imposed on stakeholders is commensurate with the size and complexity of their operations. For example, smaller railway companies require less effort to prepare their fire preparedness plans. This approach is favoured because it increases rail safety while not imposing undue burden on smaller companies. The requirements for local railway companies are designed with the knowledge that they do not own the federally regulated track they operate on, that they generally operate on shorter portions of federally regulated track and that they do not perform high-risk work. As a result, a number of the provisions that apply to railway companies do not apply to local railway companies. This helps reduce the burden on local railway companies. The Regulations are also in line with other recent rail safety regulatory initiatives and respect the intent of the RSA. The objectives of the RSA include the promotion and provision of safety and security to the public and personnel, the protection of property and the environment in railway operations, the recognition of the responsibility of companies to demonstrate that they continuously manage risks related to safety matters, and the facilitation of a modern, flexible and efficient regulatory scheme that will ensure the continuing enhancement of railway safety and security. Implementation, enforcement and service standards The Regulations will come into force six months after the day on which they are registered. Although railway companies are already largely compliant with most of the provisions, local railway companies will be able to use this time to prepare their fire preparedness plans. To ensure that Regulations are applied in a fair, impartial, predictable and nationally consistent manner, guidance material will be developed to align with Rail Safety’s existing compliance and enforcement regime. Training will also be provided to Rail Safety officials within the national track inspection program. Adding this guidance to the existing training program will ensure that departmental officials take a standard approach in similar circumstances to achieve consistent results. Contact Any questions related to the Prevention and Control of Fires on Line Works Regulations should be directed to Susan Archer Director Regulatory Affairs Transport Canada Telephone: 613-990-8690 Email: [email protected] Footnote a S.C. 2012, c. 7, s. 13(2) Footnote b S.C. 2015, c. 31, s. 31 Footnote c R.S., c. 32 (4th Supp.)
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