Vol. 145, No. 5 — January 29, 2011
ARCHIVED — Administrative Monetary Penalties Regulations (International Bridges and Tunnels)
Statutory authority
International Bridges and Tunnels Act
Sponsoring department
Department of Transport
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
Issue
Bridges and tunnels are essential components of the Canadian road network, particularly with respect to the trade and transportation of goods and services. Whenever such a structure fails, or its ability to carry the vehicle loads it was designed to carry is diminished, public safety is jeopardized, the efficiency of the transportation network is impaired, and the public is inconvenienced.
There are 34 international bridges and tunnels between Canada and the United States with various governance regimes (i.e. Crown corporations, joint authorities and private companies). Of these bridges and tunnels, 25 are vehicular crossings and 9 are railway crossings.
With the collapse of the De la Concorde overpass in Laval in 2006, and the collapse of the I-35 Bridge in Minneapolis in 2007, the public has looked to various levels of government to ensure the viability of these important elements of Canada’s transportation infrastructure. The International Bridges and Tunnels Act, adopted in 2007, gave the Government of Canada the ability to oversee the operation, maintenance, and security of these international bridges and tunnels.
In order for the Government of Canada to effectively perform this new oversight role, the International Bridges and Tunnels Regulations (Safety Regulations) were introduced in February 2009, which established a consistent approach for reporting on the maintenance and operation of these structures.
The Act also established an administrative monetary penalty system for compliance and enforcement of the Act and the associated Regulations. Now, the Government of Canada is proposing to introduce the Administrative Monetary Penalties Regulations (International Bridges and Tunnels) [proposed Regulations], which will establish monetary fines for contravening the various provisions in the Act and the Safety Regulations.
Objectives
The proposed Regulations are intended to encourage compliance with the Act and the Safety Regulations. The objective of the International Bridges and Tunnels Act is to provide the Government of Canada with assurances that these bridges and tunnels are safe, maintained to maximize their long-term viability and operated in a manner to facilitate the flow of goods and people across the border. The proposed Regulations are needed to promote compliance with the Act and the Safety Regulations.
The International Bridges and Tunnels Act establishes a process which entitles stakeholders who would be subject to a monetary fine under the proposed Regulations to a fair hearing before the Transportation Appeal Tribunal of Canada. The Tribunal or any of its members would adjudicate disputes between Transport Canada and the international bridge and tunnel community relative to the administrative monetary penalties.
The Tribunal is an independent, quasi-judicial body that was established in 2001 under the Transportation Appeal Tribunal of Canada Act. The Tribunal currently adjudicates administrative enforcement decisions made under the Aeronautics Act, the Canada Transportation Act, and the Railway Safety Act. The Tribunal would assume similar responsibilities under the International Bridges and Tunnels Act and its Regulations.
Description
The proposed Regulations establish monetary penalties for violations with the various provisions of the Act and Regulations.
The Act, which came into force on April 25, 2007, authorizes the Governor in Council to make regulations on the recommendation of the Minister of Transport. The Safety Regulations, which deal with the maintenance and repair, and the operation and use of international bridges and tunnels, came into effect on February 18, 2009. The Act, under section 43, further authorizes the Minister of Transport to make regulations establishing monetary penalties for infractions with the Act or related regulations. These proposed Regulations are a result of this authority. Paragraph 43(b) of the Act prescribes the maximum amount of the penalties not to exceed $5,000, in the case of an individual, and $25,000, in the case of a corporation.
Monetary penalties can only be applied to “designated provisions” in the proposed Regulations. Where there has been a contravention of such a provision, the Minister of Transport would decide on the amount of the fine to be charged. Before sending a formal notice of violation to the offender, the Minister may enter into discussion with the individual or corporation to try to have them comply with the provision. If this attempt is unsuccessful, the Minister has the authority to issue a notice of violation, identifying the violation and the monetary penalty. Details concerning the timeframe for payment and how the payment can be made would also be included. If the payment were made as specified, there would be no further proceedings under the Act with respect to that contravention. However, if the individual or corporation objects to the notice of violation, they have the right to request a review by the Transportation Appeal Tribunal of Canada.
In the event that the monetary penalty is not paid within 30 days and the stakeholder does not file a request for review by the Tribunal, the person or corporation would be considered guilty of the violation, and the Minister of Transport could obtain from the Tribunal a certificate confirming the amount of the penalty to be paid.
If the person requests a review within the 30 days, a member of the Tribunal, as the case may be, would review the case and render a decision. Both the person and the Minister would be informed of any decision issued. If a member of the Tribunal, appointed to conduct a review, disagreed with the notice of violation, and unless the Minister appealed the decision, no further action would be taken. If the member of the Tribunal agreed with the notice of violation, it would establish the penalty to be paid, which could be the same as previously established by the Minister or could be a different amount. Both the Minister and the person could then appeal the decision of the Tribunal member to the Tribunal.
Rationale
On November 23, 2006, the Government of Canada presented Advantage Canada, a forward-looking plan. It recognized that for Canada — a trade-dependent nation — to remain competitive, it must create world-class infrastructure that ensures the seamless flow of people, goods and services across its roads and bridges, through its ports and gateways, and via its public transit. (see footnote 1)
While the proposed Regulations are not expected to have a direct or immediate impact on safety and security, such a tool would assist the Government of Canada in promoting compliance with the reporting requirements, which would in turn provide for a better understanding of the operation and viability of these crossings. It would also help the Government of Canada to be in a better position to support the enhancement of the long-term safety and security of international bridges and tunnels.
The proposed administrative scheme is considered, in most instances, preferable to instituting judicial proceedings for regulatory infractions, as it is typically more expedient and economical than judicial proceedings. The objective of the proposed Regulations is to establish the administrative penalty system. In cases where proceeding with issuing a notice of violation or laying criminal charges is not considered necessary, alternative procedures exist to address violations by entering into an assurance of compliance with the individual or corporation. Assurances of compliance are written agreements under which the individuals or corporations acknowledge that there has been a contravention and undertake the necessary steps to bring themselves into compliance within a specific period of time.
In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, and the Transport Canada Policy Statement on Strategic Environmental Assessment, the strategic environmental assessment (SEA) process was followed for this proposed Regulation and a preliminary scan was completed. The preliminary scan concluded that the proposal is not likely to have significant environmental effects.
Consultation
In developing the Safety Regulations, Transport Canada officials consulted stakeholders regularly, including owners, operators, affected provinces, as well as federal authorities of the United States.
When the Act was adopted, two separate workshops were held to engage stakeholders in discussions on the nature and extent of the proposed provisions in the regulations. Most stakeholders attended, including international bridge and tunnel owners and operators, provincial government officials, other federal department and agency officials, federal officials from the United States and some bordering states’ departments of transportation (e.g. Michigan, Minnesota).
The discussions at the workshops were helpful in the development of a regulatory framework that would satisfy the Government of Canada’s objectives while not interfering in the day-to-day operation of the crossings. The regulations support the uninterrupted flow of goods and people across the border and ensure that the crossings are operated and maintained in a safe and efficient manner.
During the workshops, Transport Canada officials highlighted that administrative monetary penalties regulations were being considered and that they could be published in the Canada Gazette, Part I, in 2009. It was explained that the intent was to encourage compliance with the Safety Regulations and the various provisions of the Act.
Details on the development of the regulations were included in the “Implementation, enforcement and service standards” section of the regulatory proposal for the Safety Regulations, published in the Part I of the CanadaGazette as well as in the final publication in the Canada Gazette, Part II, on February 18, 2009.
Implementation, enforcement and service standards
It is proposed that the Administrative Monetary Penalties Regulations (International Bridges and Tunnels) come into effect on the date they are published in the Canada Gazette, Part II.
The Act contains provisions with respect to enforcement and administrative monetary penalties, which detail the process to be followed in a case of contravention of any provisions of the Act, the Safety Regulations, and any order or directive made under the Act. If an owner or an operator of an international bridge or tunnel does not comply with the applicable provisions set out in the Act, the owner or operator may be subject to a monetary penalty as prescribed in the Act.
Sections 38 to 42 of the Act lay out the enforcement framework when there is contravention to the Act. Furthermore, section 43 provides for the contravention regime, which gives the Minister of Transport the power to designate provisions that, when violated, could subject the alleged offender to sections 43 to 55 of the Act. They stipulate that the maximum allowable monetary penalties are up to $5,000 in the case of an individual and up to $25,000 in the case of a corporation. Furthermore, an incremental approach would be used for the enforcement of the Act and the Safety Regulations, meaning that the amounts of penalty would increase from a first offence, a second offence and subsequent offences. The amount of penalty for a third and subsequent offences would be the maximum specified for violations of the designated provisions set out in the schedule.
If a proponent is served with a notice of violation and does not pay the fine within allocated time (i.e. 30 days), and no request for review was received by the Tribunal, the proponent would be deemed to have committed the contravention alleged in the notice and the Tribunal would then be asked to issue a certificate that would indicate the amount payable. This certificate for a default of payment would then be registered. Additional costs for registration could also be added to the amount.
The proposed Regulations are expected to promote compliance with the Safety Regulations as well as the Act. This would help improve governance and accountability of key transportation infrastructure. The receipt of reports, required under the Safety Regulations, would have the expected result of verifying that a consistent application of safety and security standards is being applied and would help in the assurance that these international crossings are operated and maintained in accordance with government objectives.
Contact
For further information, please contact
Brian E. Hicks, P.Eng
Director
Bridge Policy and Programs
Airport and Port Programs Directorate
Transport Canada
112 Kent Street
Ottawa, Ontario
K1A 0N5
Telephone: 613-998-1900
Fax: 613-990-8889
Email: brian.hicks@tc.gc.ca
Notice is hereby given that the Minister of Transport, pursuant to section 43 of the International Bridges and Tunnels Act (see footnote a), proposes to make the annexed Administrative Monetary Penalties Regulations (International Bridges and Tunnels).
Interested persons may make representations with respect to the proposed Regulations to the Minister of Transport within 30 days after the date of publication of this notice. All such representations must be in writing and cite the Canada Gazette, Part I, and the date of publication of this notice, and be sent to Brian E. Hicks, Director, Bridge Policy and Programs, Airport and Port Programs, Department of Transport, Place de Ville, Tower C, 330 Sparks Street, Ottawa, Ontario K1A 0N5 (tel.: 613-998-1900; fax: 613-990-8889; e-mail: brian.hicks@tc.gc.ca).
Ottawa, January 17, 2011
CHUCK STRAHL
Minister of Transport
ADMINISTRATIVE MONETARY PENALTIES REGULATIONS (INTERNATIONAL BRIDGES AND TUNNELS)
INTERPRETATION
Meaning of “Act”
1. In these Regulations, “Act” means the International Bridges and Tunnels Act.
DESIGNATED PROVISIONS
Provisions of the Act and Regulations
2. (1) The provisions of the Act set out in column 1 of Part 1 of the schedule and the provisions of the International Bridges and Tunnels Regulations set out in column 1 of Part 2 of the schedule are designated as provisions the contravention of which is a violation that may be proceeded with in accordance with sections 45 to 55 of the Act.
Corporation
(2) An amount set out in column 2 of the schedule is prescribed as the maximum penalty payable by a corporation in respect of a contravention of the designated provision set out in column 1.
Individual
(3) An amount set out in column 3 of the schedule is prescribed as the maximum penalty payable by an individual in respect of a contravention of the designated provision set out in column 1.
Orders and directives
3. (1) The provisions of an order made under section 9, 13, 15.1 or 26 of the Act and the provisions of a directive made under section 17 or 18 of the Act are designated as provisions the contravention of which may be proceeded with as a violation in accordance with sections 45 to 55 of the Act.
Maximum penalty
(2) The maximum amount of a penalty payable in respect of a contravention of a designated provision referred to in subsection (1) is $25,000 in the case of a corporation and $5,000 in the case of an individual.
COMING INTO FORCE
Publication
4. These Regulations come into force on the day on which they are published in the Canada Gazette, Part II.
SCHEDULE
(Section 2)
PART 1
DESIGNATED PROVISIONS OF THE INTERNATIONAL BRIDGES AND TUNNELS ACT
|
Item |
Column 1 |
Column 2 |
Column 3 |
|---|---|---|---|
|
1. |
Section 6 |
25,000 |
3,000 |
|
2. |
Subsection 8(3) |
15,000 |
3,000 |
|
3. |
Subsection 23(1) |
15,000 |
3,000 |
|
4. |
Subsection 25(3) |
15,000 |
3,000 |
|
5. |
Subsection 38(1) |
25,000 |
5,000 |
|
6. |
Subsection 38(2) |
25,000 |
5,000 |
PART 2
DESIGNATED PROVISIONS OF THE INTERNATIONAL BRIDGES AND TUNNELS REGULATIONS
|
Item |
Column 1 |
Column 2 |
Column 3 |
|---|---|---|---|
|
7. |
Subsection 4(1) |
15,000 |
3,000 |
|
8. |
Subsection 4(2) |
15,000 |
3,000 |
|
9. |
Subsection 5(1) |
25,000 |
5,000 |
| 10. | Subsection 5(2) | 25,000 | 5,000 |
|
11. |
Subsection 6(1) |
25,000 |
5,000 |
|
12. |
Subsection 6(2) |
25,000 |
5,000 |
|
13. |
Subsection 7(2) |
10,000 |
2,000 |
|
14. |
Section 8 |
25,000 |
5,000 |
|
15. |
Paragraph 9(1)(a) |
5,000 |
1,000 |
|
16. |
Paragraph 9(1)(b) |
10,000 |
2,000 |
|
17. |
Paragraph 9(1)(c) |
10,000 |
2,000 |
|
18. |
Paragraph 9(1)(d) |
15,000 |
3,000 |
|
19. |
Paragraph 9(1)(e) |
15,000 |
3,000 |
|
20. |
Paragraph 9(1)(f) |
15,000 |
3,000 |
|
21. |
Paragraph 9(1)(g) |
15,000 |
3,000 |
|
22. |
Paragraph 9(1)(h) |
15,000 |
3,000 |
|
23. |
Paragraph 9(1)(i) |
15,000 |
3,000 |
|
24. |
Subsection 9(2) |
25,000 |
5,000 |
|
25. |
Section 10 |
5,000 |
1,000 |
|
26. |
Section 11 |
5,000 |
1,000 |
|
27. |
Section 12 |
15,000 |
3,000 |
|
28. |
Subsection 13(1) |
25,000 |
5,000 |
|
29. |
Subsection 13(3) |
25,000 |
5,000 |
|
30. |
Subsection 14(1) |
15,000 |
3,000 |
|
31. |
Subsection 14(3) |
10,000 |
2,000 |
|
32. |
Paragraph 15(1)(a) |
10,000 |
2,000 |
|
33. |
Paragraph 15(1)(b) |
10,000 |
2,000 |
|
34. |
Paragraph 15(1)(c) |
10,000 |
2,000 |
|
35. |
Paragraph 15(1)(d) |
10,000 |
2,000 |
|
36. |
Paragraph 15(1)(e) |
10,000 |
2,000 |
|
37. |
Subsection 15(2) |
10,000 |
2,000 |
|
38. |
Section 16 |
15,000 |
3,000 |
[5-1-o]
Footnote 1
Transport Canada’s 2007-2008 Estimates Report on Plans and Priorities
Footnote a
S.C. 2007, c. 1