Vol. 145, No. 36 — September 3, 2011

ARCHIVED — Transportation Safety Board Regulations

Statutory authority

Canadian Transportation Accident Investigation and Safety Board Act

Sponsoring agency

Canadian Transportation Accident Investigation and Safety Board

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Executive summary

Issue: The Transportation Safety Board of Canada (TSB) was created by an Act of Parliament in 1990. Sections 31 and 34 of the Canadian Transportation Accident Investigation and Safety Board Act (CTAISB Act) permit the Board, subject to the approval of the Governor in Council, to make regulations. The Transportation Safety Board Regulations (the Regulations) were approved in 1992 and have not been amended since that date. Over the years, there have been many changes in the transportation industry, changes to the CTAISB Act, changes to other government department’s legislation and regulations, and changes to international agreements.

Description: It is proposed to repeal and replace the Regulations in a new format which would make the Regulations more user friendly and bring them up to date with all the changes to the transportation industry in the last 19 years. There would be some changes to what is required to be reported to the TSB in the event of an accident or incident. The definitions would be modified to coincide with other federal statutes and international agreements. The proposed Regulations have changes that stem from TSB policies and procedures such as the rights of observers that should be put into regulation, while others stem from concerns raised by investigators over the years that would make their job easier by better defining the processes during the interviewing of witnesses. Most of the changes provide clarity in areas that were identified as somewhat problematic, in that they were open to various interpretations.

Cost-benefit statement: The proposed Regulations would not result in any change to costs as they do not delete any activities that were previously required. Additional resources should not be required as the information is already being collected. The TSB and the various industry stakeholders currently have personnel and administrative systems in place to report and follow up on transportation occurrences. For years, transportation companies have been keeping detailed records of their transportation occurrences, well beyond those that are required by TSB’s existing and proposed regulations. Therefore, appreciable costs to the industry should be negligible. Furthermore, the implementation of Safety Management System regulations by Transport Canada obligated transportation companies to identify, record, and follow up on all accidents and incidents. Also, the ever-increasing advancements in electronic data exchange (by emails, and mobile/portable devices) provide opportunities for companies to offset any minor increase in costs that might occur in reporting requirements.

Business and consumer impacts: The Regulations apply to transportation occurrences in Canada; therefore, there would be no effect on competitiveness. Any foreign transportation company operating in Canada would be required to adhere to these Regulations.

Domestic and international coordination and cooperation: The Regulations are strictly focused on safety, and have little impact on foreign trade relations. The proposed Regulations are in agreement with international standards such as those of the International Civil Aviation Organization and the International Maritime Organization.

Performance measurement and evaluation plan: In accordance with subsection 13(3) of the CTAISB Act, the TSB is required to submit its annual report to Parliament. Also, the TSB submits Departmental Performance Reports which include occurrence reporting statistics and performance measurements of accident investigations.

Issue

The existing Transportation Safety Board Regulations (the Regulations) describe the requirements for reporting of transportation accidents and incidents and the requirements to be followed in an investigation or public inquiry. They were approved in 1992 and have not been amended since that date. Over the last 19 years, there have been terminology, technical and modernization changes made to the Canadian Transportation Accident Investigation and Safety Board Act, the Canada Shipping Act, 2001, the Aeronautics Act and their associated regulations, and to international agreements.

In addition, the existing TSB Regulations have been subject to misinterpretation regarding the reporting of occurrences, the conduct of witness interviews, and the protection of evidence.

Objectives

The objective is to bring the Regulations up to date with existing acts. The Regulations would be more clearly defined with the aim of preventing confusion or difference of opinion between the industry and the TSB.

Description

This proposal would repeal and replace the Regulations and reorganize them from six sections into two parts: “Reports” and “Investigations of Transportation Occurrences and Public Inquiries.”

The “Interpretations” (definitions) would all be relocated to the beginning of each specific subsection in the reporting requirements. This would eliminate confusion when consulting the Regulations for mode-specific definitions and definitions would be aligned to coincide with other federal statutes (e.g. Canada Shipping Act, 2001) and international agreements (e.g. International Civil Aviation Organization — Annex 13, Standards and Recommended Practices for Aircraft Accident and Incident Investigation).

The first part, “Reports,” would explain the mandatory reporting requirements for aviation, marine, pipeline, and railway occurrences. There would be some additional reporting requirements such as the phone number of the person making the report, a list of any multi-media material relevant to the occurrence, and actions being taken to protect persons, properties and the environment. For pipeline occurrences, there is a requirement to report the estimated time required to complete the clean-up and repairs and to restart the pipeline system or facility. For railway occurrences, more detailed information on dangerous goods and weather conditions is to be reported. Finally, the first part would include the requirement for “Keeping and Preservation of Evidence.” This has been re-written to make it easier to understand and it proposed to keep records at the Board for 10 years instead of 20 years. Over the years, the Board has found that there are almost no requests for records after 10 years; the records would be sent to Archives Canada.

The second part, “Investigations of Transportation Occurrences and Public Inquiries,” would explain the requirements for persons required to attend interviews, the requirements for persons to attend the testing (examination) of items seized during an investigation, and rights and privileges for observers attending investigations. This second part would also explain the requirements for the “Keeping and Preservation of Information,” for “Warrants” and for “Investigator’s Notices.” Finally, the second part would explain the requirements for “Public Inquiries” and “Witness Fees and Allowances.” This part would regroup and simplify existing requirements and no substantive changes have been made.

Some of the proposed amendments stem from TSB policies and procedures that should be put into regulation to clearly outline the requirements for witness interviews, while others stem from concerns raised by investigators over the years that would make their job easier.

The Act states that “No person shall refuse to attend before an investigator and give a statement.” However, the current process of stipulating the conditions during interviews in policy documents has, at times, been met with challenge. The proposed Regulations would give TSB investigators the ability to record the interview on an audio tape and would stipulate that the person being interviewed is permitted to have one representative of their choice present.

Regulatory and non-regulatory options considered

Updating the existing Regulations would leave some of the unclear sections intact and the organization of the Regulations would still lead to some confusion. TSB policies currently in place stipulate many of the proposed additions (e.g. conduct of witness interviews). However, they are not enforceable, and therefore updating policy will not solve the problems that have been encountered. A full repeal and replace of the Regulations has been recommended due to the fact that the proposed Regulations would lead to ease of use and reduced confusion.

Benefits and costs

The TSB and the various stakeholders, companies, and industries currently have personnel and administrative systems in place to report and follow up on transportation occurrences. For years, transportation companies have been keeping detailed records of their transportation occurrences, well beyond those that are required by TSB’s existing and proposed Regulations. Therefore, there should not be appreciable costs to the industry. Furthermore, the implementation of Safety Management System regulations by Transport Canada obligated transportation companies to identify, record, and follow up on all accidents and incidents, and beyond that, moved them towards a more advanced safety management approach of risk management, with the identification of job tasks, assessment of the associated hazards, and implementation of appropriate safety controls. Also, the ever-increasing advancements in electronic data exchange (by email, BlackBerry, and other mobile/portable devices) provide opportunities for companies to offset any minor increase in costs that might occur in reporting requirements.

The benefits would be improved clarity in areas that were identified as problematic, in that they were open to various interpretations. The improved Regulations would also save time in collecting the data required when reporting occurrences. Therefore, the proposed Regulations would be seen as positive.

Rationale

The amendments would provide clarity in areas that were identified as problematic, in that they were open to various interpretations. These procedures were not part of the Regulations and are being added to prevent confusion and difference of opinion between the industry and the TSB.

The current Regulations do not stipulate the conditions during interviews. When investigators conducted an interview with a witness to an accident or incident, it was TSB procedure for the investigator to record the interview on an audio tape and to permit the witness to have a representative present at the interview. These procedures were not part of the Regulations and are being added in order to obtain accurate details of an occurrence.

The proposed Regulations would allow the person being interviewed to have one representative of their choice present at the interview. Some transportation employers request legal counsel to be present during an interview. It is important that witnesses are not intimidated by the number of people in attendance and speak openly without having numerous representatives who interrupt the interview which currently takes place. This practice is not part of the Regulations and is being added for the protection of the witness.

Consultation

In developing the revisions to the Regulations, the TSB consulted with more than 225 transportation stakeholders in 2007, such as Transport Canada, provincial governments, transportation industry associations, transportation companies, and transportation industry interest groups. The stakeholders were asked to submit written submissions with their comments on the proposed revisions. Forty-two stakeholders submitted comments and most were very supportive.

Some stakeholder responses suggest that these amendments may result in an increased administrative burden. For years, the industry has been keeping detailed records of all its transportation occurrences, well beyond those that are covered by the Regulations. Furthermore, the implementation of Safety Management System regulations by Transport Canada obligated transportation companies to identify, record, and follow-up on all accidents and incidents, and beyond that, moved them towards a more advanced safety management approach of risk management, with the identification of job tasks, assessment of the associated hazards, and implementation of appropriate safety controls. These administration systems are already in place.

A number of stakeholder comments centred on the interviewing of witnesses. The purpose of the interview is to obtain facts relating to a transportation occurrence for advancing safety; it is not a legal or disciplinary hearing. One stakeholder objected to the regulatory requirement regarding audio recording of witness statements even though witness statements from this group in the past have been recorded on audio tape. In accordance with the CTAISB Act, witness statements are protected and therefore cannot be released.

Several stakeholder groups object to restricting only one representative to attend the interview. They request that other interested parties be permitted to attend an interview. The number of representatives attending the interview must be limited so the witness is not intimidated, especially if the representative is an employer. Several stakeholders object to the proposal that the representative cannot intervene during the interview. Representatives cannot intervene as this could influence the outcome of the interview.

Implementation, enforcement and service standards

The TSB would provide briefings and have meetings with various transportation stakeholders indicating the changes to the Regulations. Notice of the new Regulations would be published in various trade magazines and on the TSB Web site.

There are no new proposed compliance or enforcement strategies. The TSB would continue to monitor compliance to the proposed Regulations. The proposed Regulations would be enforced through judicial action introduced by way of summary conviction as per subsection 35(2) of the CTAISB Act.

Performance measurement and evaluation

The outcomes of TSB activities (such as occurrence investigations and data gathering) that are driven by the Regulations are designed to reduce or eliminate safety deficiencies. This will be a measure of the Regulations’ performance which will have some positive effect on safety improvement for the transportation industry and Canadians.

In accordance with subsection 13(3) of the CTAISB Act, the TSB is required to submit its annual report to Parliament. Also, the TSB submits Departmental Performance Reports which include occurrence reporting statistics and performance measurements of accident investigations.

Contact

Mr. Allen C. Harding
Senior Legal Counsel
Legal Services
Transportation Safety Board of Canada
Place du Centre
200 Promenade du Portage
Gatineau, Quebec
K1A 1K8
Telephone: 819-994-8078
Fax: 819-994-9759
Email: allen.harding@tsb.gc.ca

PROPOSED REGULATORY TEXT

Notice is hereby given, pursuant to subsection 34(3) of the Canadian Transportation Accident Investigation and Safety Board Act (see footnote a), that the Canadian Transportation Accident Investigation and Safety Board, pursuant to subsections 31(1) and (3) and 34(1) (see footnote b) of that Act, proposes to make the annexed Transportation Safety Board Regulations.

Interested persons may make representations concerning the proposed Regulations within 90 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Allen C. Harding, General Counsel, Legal Services, Transportation Safety Board of Canada, Place du Centre, 200 Promenade du Portage, Gatineau, Quebec K1A 1K8 (tel.: 819-994-8078; fax: 819-994-9759; e-mail: Allen.Harding@tsb.gc.ca).

Ottawa, July 15, 2011

WENDY TADROS
Chair of the Board

TABLE OF CONTENTS

(This table is not part of the Regulations.)

TRANSPORTATION SAFETY BOARD REGULATIONS

INTERPRETATION

1.  Definitions

PART 1

REPORTS

MANDATORY REPORTING

Aviation Occurrences

2.  Report to Board

Marine Occurrences

3.  Report to Board

Pipeline Occurrences

4.  Report to Board

Railway Occurrences

5.  Report to Board

VOLUNTARY REPORTING

6.  Report to Board

7.  Protection of identity

KEEPING AND PRESERVATION OF EVIDENCE

8.  Evidence

PART 2

INVESTIGATIONS OF TRANSPORTATION OCCURRENCES AND PUBLIC INQUIRIES

INVESTIGATIONS

Interviews

9.  In camera

Presence at Tests

10.  Representation and record

Rights and Privileges of Observers Attending an Investigation

11.  Activities of observers

Keeping and Preservation of Information

12.  Investigation file

Warrants

13.  Warrant

Investigator’s Notices

14.  Statutory summons

PUBLIC INQUIRIES

15.  Public hearing

16.  Establishment of technical panel

17.  Participants in public inquiry

18.  Pre-inquiry conference

19.  Time and place

20.  Responsibilities of Presiding Officer

21.  Report

WITNESS FEES AND ALLOWANCES

22.  Fees and allowances

REPEAL

23.  Repeal

COMING INTO FORCE

24.  Registration

SCHEDULE

TRANSPORTATION SAFETY BOARD REGULATIONS

INTERPRETATION

Definitions

1. The following definitions apply in these Regulations.

“Act”
« Loi »

“Act” means the Canadian Transportation Accident Investigation and Safety Board Act.

“dangerous goods”
« marchandises dangereuses »

“dangerous goods” has the same meaning as in section 2 of the Transportation of Dangerous Goods Act, 1992, and, when transported by ship, has the same meaning as in the International Maritime Dangerous Goods Code.

“multi-media material”
« matériel multimédia »

“multi-media material” means any still images, video, graphics or audio, other than on-board recordings and communication records, as defined, respectively, in subsections 28(1) and 29(1) of the Act.

“serious injury”
« blessure grave »

“serious injury” means

• (a) a fracture of any bone, except simple fractures of fingers, toes or the nose;
  
• (b) lacerations that cause severe hemorrhage or nerve, muscle or tendon damage;
  
• (c) an injury to an internal organ;
  
• (d) second or third degree burns, or any burns affecting more than five per cent of the body surface;
  
• (e) a verified exposure to infectious substances or injurious radiation; or
  
• (f) an injury that is likely to require hospitalization.
  

PART 1

REPORTS

MANDATORY REPORTING

Aviation Occurrences

Report to Board

2. (1) When an aviation occurrence takes place, the owner, operator, pilot-in-command, any crew member of the aircraft and any person providing air traffic services having direct knowledge of the occurrence shall report the occurrence to the Board if it results directly from the operation of an aircraft and if

• (a) in the case of an accident
  
  • (i) a person is killed or sustains a serious injury as a result of
    
    • (A) being on board the aircraft,
      
    • (B) coming into direct contact with any part of the aircraft, including parts that have become detached from the aircraft, or
      
    • (C) direct exposure to jet blast, rotor down wash or propeller wash,
      
  • (ii) the aircraft sustains structural failure or damage that adversely affects the aircraft’s structural strength, performance or flight characteristics and would normally require major repair or replacement of any affected component, except for
    
    • (A) engine failure or damage, when the damage is limited to the engine, its cowlings or accessories, or
      
    • (B) damage limited to propellers, wing tips, antennae, tires, brakes, fairings or small dents or puncture holes in the aircraft’s skin, or
      
  • (iii) the aircraft is missing or inaccessible; and
    
• (b) in the case of an incident involving an aircraft having a maximum certificated take-off weight greater than 2 250 kg, or of an aircraft being operated under an air operator certificate issued under Part VII of the Canadian Aviation Regulations,
  
  • (i) an engine fails or is shut down as a precautionary measure,
    
  • (ii) a power train transmission gearbox malfunction occurs,
    
  • (iii) smoke or fire occurs on board,
    
  • (iv) difficulties in controlling the aircraft are encountered owing to any aircraft system malfunction, weather phenomena, wake turbulence, uncontrolled vibrations or operations outside the flight envelope,
    
  • (v) the aircraft fails to remain within the intended landing or take-off area, lands with all or part of the landing gear retracted or drags a wing tip, an engine pod or any other part of the aircraft,
    
  • (vi) a crew member, whose duties are directly related to the safe operation of the aircraft, is unable to perform their duties as a result of a physical incapacitation that poses a threat to the safety of any person, property or the environment,
    
  • (vii) depressurization of the aircraft occurs which necessitates an emergency descent,
    
  • (viii) a fuel shortage occurs that necessitates a diversion or requires approach and landing priority at the destination of the aircraft,
    
  • (ix) the aircraft is refuelled with the incorrect type of fuel or contaminated fuel,
    
  • (x) a collision, a risk of collision or a loss of separation occurs,
    (xi) a crew member declares an emergency or indicates an emergency that requires priority handling by air traffic services or the standing by of emergency response services,
    (xii) a slung load is released unintentionally or as a precautionary or emergency measure from the aircraft, or
    (xiii) any dangerous goods are released in or from the aircraft.
    

Information in report

(2) The report shall contain the following information:

• (a) the type, model, nationality and registration marks of the aircraft;
  
• (b) the name of the owner, operator, pilot-in-command and, if applicable, hirer of the aircraft;
  
• (c) the last point of departure and the intended destination of the aircraft, including the date and time of the departure;
  
• (d) the date and time of the occurrence;
  
• (e) the name of the person providing air traffic services related to the occurrence;
  
• (f) the number of crew members, passengers and other persons involved in the occurrence and the number of those that were killed or sustained a serious injury;
  
• (g) if the aircraft is located and accessible
  
  • (i) the location of the occurrence by reference to an easily defined geographical point, or by latitude and longitude,
    
  • (ii) a description of the occurrence and the extent of any resulting damage to the environment and to the aircraft and any other property,
    
  • (iii) a list of any dangerous goods carried on board, or released from, the aircraft, including the shipping name or UN number and consignor and consignee information, and
    
  • (iv) a list of any multi-media material relevant to the occurrence;
    
• (h) if the aircraft is not located or is inaccessible
  
  • (i) the last known position of the aircraft by reference to an easily defined geographical point, or by latitude and longitude, including the date and time that the aircraft was at that position,
    
  • (ii) a list of any dangerous goods carried on board the aircraft, and
    
  • (iii) the action being taken to locate, or gain access to, the aircraft;
    
• (i) a description of any action taken to protect persons, property and the environment; and
  
• (j) the name and title of the person making the report and the phone number and address where they can be reached.
  

Time limit

(3) The person making the report shall send to the Board

• (a) as soon as possible and by the quickest means available, all the information required under subsection (2) that is available at the time of the occurrence; and
  
• (b) the remainder of that information as soon as it becomes available within 30 days after the occurrence.
  

Agreement

(4) The Board and any person mentioned in subsection (1) may enter into an agreement regarding an alternative format and time frame for reporting aviation occurrences that are not likely to require immediate Board response.

Exemption

(5) If a person making a report has sent any information described in subsection (2) to the Board

• (a) the Board may exempt other persons from the requirement to send that information to the Board; and
  
• (b) if the person is a member of a company, any other person from that company is exempt from the requirement to send that information to the Board.
  

Definitions

(6) The following definitions apply in this section.

“air traffic services”
« services de la circulation aérienne »

“air traffic services” has the same meaning as in the Canadian Aviation Regulations.

“collision”
« collision »

“collision” means an impact, other than an impact associated with normal operating circumstances, between aircraft or between an aircraft and another object or terrain.

“loss of separation”
« perte d’espacement »

“loss of separation” means a situation in which the distance separating two aircraft is less than the minimum established in the Canadian Domestic Air Traffic Control Separation Standards.

“operation”
« exploitation »

“operation” means the activities for which an aircraft is used from the time any person boards the aircraft with the intention of flight until they disembark.

“operator”
« utilisateur »

“operator” has the same meaning as in the Canadian Aviation Regulations.

“owner”
« propriétaire »

“owner” has the same meaning as in the Canadian Aviation Regulations.

“risk of collision”
« risque de collision »

“risk of collision” means a situation in which an aircraft comes so close to being involved in a collision that a threat to the safety of any person, property or the environment exists.

Marine Occurrences

Report to Board

3. (1) When a marine occurrence takes place, the operator of the ship, whether or not they are the owner, the master and the pilot of the ship, any crew member of the ship and the harbour master having direct knowledge of the occurrence shall report the occurrence to the Board if

• (a) in the case of an accident
  
  • (i) a person is killed or sustains a serious injury as a result of
    
    • (A) boarding, being on board or falling overboard from the ship, or
      
    • (B) coming into direct contact with any part of the ship or its contents, or
      
  • (ii) the ship
    
    • (A) sinks, founders or capsizes,
      
    • (B) is involved in a collision,
      
    • (C) sustains a fire or an explosion,
      
    • (D) goes aground,
      
    • (E) sustains damage that affects its seaworthiness or renders it unfit for its purpose, or
      
    • (F) is missing or abandoned; and
      
• (b) in the case of an incident
  
  • (i) a person falls overboard from the ship,
    
  • (ii) the ship makes unforeseen contact with the bottom without going aground,
    
  • (iii) the ship fouls a utility cable or pipe, or an underwater pipeline,
    
  • (iv) the ship is involved in a risk of collision,
    
  • (v) the ship sustains a total failure of
    
    • (A) navigation equipment,
      
    • (B) main or auxiliary machinery, or
      
    • (C) propulsion, steering, or deck machinery if the failure poses a threat to the safety of any person, property or the environment,
      
  • (vi) all or part of the ship’s cargo shifts or falls overboard,
    
  • (vii) the ship is anchored, grounded or beached to avoid an accident,
    
  • (viii) a crew member, whose duties are directly related to the safe operation of the ship, is unable to perform their duties as a result of a physical incapacitation that poses a threat to the safety of any person, property or the environment, or
    
  • (ix) any dangerous goods are released on board or from the ship.
    

Information in report

(2) The report shall contain the following information:

• (a) the name or identification number, nationality and type of the ship;
  
• (b) the name of the operator, whether or not they are the owner, the master and pilot of the ship and any of their authorized representatives or agents;
  
• (c) the technical specifications of the ship, such as its tonnage, length and type of propulsion, and a list of the navigational aids on board the ship;
  
• (d) the last point of departure and the intended destination of the ship, including the date and time of the departure;
  
• (e) the date and time of the occurrence;
  
• (f) the number of crew members, passengers and other persons involved in the occurrence and the number of those that were killed or sustained a serious injury;
  
• (g) a list of any dangerous goods carried on board, or released from, the ship, including the shipping name or UN number, consignor and consignee information and a list of the cargo on board the ship;
  
• (h) the weather and sea conditions at the time of the occurrence;
  
• (i) the location of the occurrence by reference to an easily defined geographical point, or by latitude and longitude, or, if the ship is missing or inaccessible, the last known position of the ship by reference to an easily defined geographical point, or by latitude and longitude, including the date and time that the ship was at that position;
  
• (j) a description of the occurrence and the extent of any resulting damage to the environment and to the ship and any other property;
  
• (k) if the ship is missing or inaccessible, the action being taken to locate or access the ship;
  
• (l) a list of any multi-media material relevant to the occurrence;
  
• (m) a description of any action taken to protect persons, property and the environment; and
  
• (n) the name and title of the person making the report and the phone number and address where they can be reached.
  

Time limit

(3) The person making the report shall send to the Board

• (a) as soon as possible and by the quickest means available, all the information required under subsection (2) that is available at the time of the occurrence; and
  
• (b) the remainder of that information as soon as it becomes available within 30 days after the occurrence.
  

Agreement

(4) The Board and any person mentioned in subsection (1) may enter into an agreement regarding an alternative format and time frame for reporting marine occurrences that are not likely to require immediate Board response.

Exemption

(5) If a person making a report has sent any information described in subsection (2) to the Board

• (a) the Board may exempt other persons from the requirement to send that information to the Board; and
  
• (b) if the person is a member of a company, any other person from that company is exempt from the requirement to send that information to the Board.
  

Report to radio ship reporting station

(6) A report made to a radio ship reporting station is considered to have been made to the Board.

Towing ship

(7) In this section, a reference to an operator, whether or not the owner, or a master of a ship includes, in the case of a ship being towed by another ship, the operator, whether or not the owner, and master of the towing ship.

Definitions

(8) The following definitions apply in this section.

“authorized representative”
« représentant autorisé »

“authorized representative” has the same meaning as in the Canada Shipping Act, 2001.

“collision”
« abordage »

“collision” means an impact between ships, other than an impact associated with normal operating circumstances.

“master”
« capitaine »

“master” means the person in command and charge of a ship, but does not include a licensed marine pilot while the pilot is performing pilotage duties under the Pilotage Act.

“operation”
« exploitation »

“operation” means the activities for which a ship is used at any time other than when the ship is in dry dock or laid-up.

“pilot”
« pilote »

“pilot” means any person who is not a member of the ship’s crew and who has the conduct of the ship.

“pleasure craft”
« embarcation de plaisance »

“pleasure craft” means a ship that is used for pleasure and not for a commercial purpose.

“radio ship reporting station”
« station de radiocommunications maritime »

“radio ship reporting station” means a Canadian Coast Guard radio station, a Marine Communications and Traffic Services Centre, a Canadian marine radio station operated by the St. Lawrence Seaway Management Corporation or a Canadian harbour radio station.

“risk of collision”
« risque d’abordage »

“risk of collision” means a situation in which a ship comes so close to being involved in a collision that a threat to the safety of any person, property or the environment exists.

Pipeline Occurrences

Report to Board

4. (1) When a pipeline occurrence takes place, the operator of the pipeline and any employee of the operator having direct knowledge of the occurrence shall report the occurrence to the Board if it results directly from the operation of the pipeline and if

• (a) a person is killed or sustains a serious injury;
  
• (b) the safe operation of the pipeline is affected by
  
  • (i) damage sustained when another object comes into contact with it,
    
  • (ii) damage sustained because of a change in its surrounding environment,
    
  • (iii) damage sustained because of a failure of an adjacent pipeline,
    
  • (iv) a fire or explosion or an ignition that is not associated with normal pipeline operations, or
    
  • (v) damage sustained that results in the release of any product;
    
• (c) an event or an operational malfunction results in an unintended, uncontained or uncontrolled release of a product;
  
• (d) the pipeline is operated beyond design limits or any operating restrictions imposed by the National Energy Board;
  
• (e) the pipeline restricts the safe operation of any mode of transportation;
  
• (f) a defect has reduced the structural integrity of the pipeline to a level that would result in
  
  • (i) operating restrictions being imposed on the pipeline,
    
  • (ii) operating pressure being reduced on the pipeline, or
    
  • (iii) the need for immediate repairs to the pipeline;
    
• (g) an unauthorized third party activity within the safety zone jeopardizes the safe operation of the pipeline;
  
• (h) a geotechnical, hydraulic or environmental activity jeopardizes the safe operation of the pipeline;
  
• (i) the operation of a portion of the pipeline is interrupted as a result of a situation or condition that poses a threat to any person, property or the environment; or
  
• (j) an unintended fire or explosion has occurred.
  

Information in report

(2) The report shall contain the following information:

• (a) the name of the operator and a unique identifier of the pipeline, such as its name or number;
  
• (b) the date and time of the occurrence;
  
• (c) the names and titles of persons involved in the occurrence who were killed or sustained a serious injury;
  
• (d) a list of any product or dangerous goods contained in, or released from, the pipeline together with an estimate of the volume of product or dangerous goods lost and the volume recovered;
  
• (e) the location of the occurrence by reference to a specific designation point such as the operator’s facility, the closest town, village or city or the pipeline’s kilometre post location;
  
• (f) a description of the occurrence and the extent of any resulting damage to the environment and to the pipeline and any other property;
  
• (g) a list of any multi-media material relevant to the occurrence;
  
• (h) the anticipated arrival time of maintenance and repair crews and equipment;
  
• (i) an estimate of the time required to complete the clean-up and repairs and to re-start the pipeline system or facility;
  
• (j) a description of any action taken to protect persons, property and the environment; and
  
• (k) the name and title of the person making the report and the phone number and address where they can be reached.
  

Time limit

(3) The person making the report shall send to the Board

• (a) as soon as possible and by the quickest means available, all the information required under subsection (2) that is available at the time of the occurrence; and
  
• (b) the remainder of that information as soon as it becomes available within 30 days after the occurrence.
  

Agreement

(4) The Board and any person mentioned in subsection (1) may enter into an agreement regarding an alternative format and time frame for reporting pipeline occurrences that are not likely to require immediate Board response.

Exemption

(5) If a person making a report has sent any information described in subsection (2) to the Board

• (a) the Board may exempt other persons from the requirement to send that information to the Board; and
  
• (b) if the person is a member of a company, any other person from that company is exempt from the requirement to send that information to the Board.
  

Definitions

(6) The following definitions apply in this section.

“defect”
« défaut »

“defect” means an anomaly or condition of the pipeline which an engineering assessment has shown could lead to a failure of any portion of the pipeline and requires immediate action to ensure the safe operation of the pipeline.

“design limits”
« limites de calcul »

“design limits”, in respect of a pipeline, means the design limits and criteria for the pipeline that are prescribed by the standards and codes under which the pipeline is designed, constructed and operated.

“engineering assessment”
« évaluation technique »

“engineering assessment” means a documented assessment of variables using engineering principles.

“safe operation”
« exploitation en toute securité »

“safe operation” means operation within the design limits.

“safety zone”
« zone de sécurité »

“safety zone” means the area extending 30 m perpendicularly from the center of a pipeline on either side of the pipeline.

Railway Occurrences

Report to Board

5. (1) When a railway occurrence takes place, the operator of the rolling stock, the operator of the track and any crew member having direct knowledge of the occurrence shall report the occurrence to the Board if

• (a) a person is killed or sustains a serious injury as a result of
  
  • (i) getting on or off or being on board the rolling stock, or
    
  • (ii) coming into contact with any part of the rolling stock or its contents;
    
• (b) the rolling stock or its contents
  
  • (i) is involved in a collision or derailment,
    
  • (ii) causes any damage to the track infrastructure that requires repairs or operating restrictions for the safe passage of rolling stock,
    
  • (iii) sustains damage that would be considered a safety defect as defined in the Railway
    Locomotive Inspection and Safety Rules, Railway Freight Car Inspection and Safety Rules or Railway Passenger Car Inspection and Safety Rules,
    
  • (iv) causes or sustains a fire or explosion, or
    
  • (v) causes damage that poses a threat to the safety of any person, property or the environment;
    
• (c) a risk of collision occurs between rolling stock;
  
• (d) a main track switch is left in an abnormal position;
  
• (e) a railway signal displays a less restrictive indication than that required for the intended movement of rolling stock;
  
• (f) rolling stock occupies a main track or track work takes place without the required authorization or permission;
  
• (g) a movement of rolling stock passes a signal indicating stop without the required authorization;
  
• (h) there is an unexpected, unplanned or uncontrolled movement of rolling stock resulting in or having the potential to result in an unsafe situation;
  
• (i) a crew member, whose duties are directly related to the safe operation of the rolling stock, is unable to perform their duties as a result of a physical incapacitation that poses a threat to any person, property or the environment;
  
• (j) any dangerous goods are released;
  
• (k) a main track is closed as a result of a washout or slope instability;
  
• (l) an automated grade crossing warning system fails to indicate the approach of a train at least 20 seconds before the train’s arrival at the crossing, or to indicate the presence of a train occupying the crossing, unless the crossing is equipped with an alternative means of active warning to highway users of approaching trains; or
  
• (m) the railway sustains damage that poses a threat to the safety of any person, property or the environment.
  

Information in report

(2) The report shall contain the following information:

• (a) the train’s number, direction, tonnage, length and authorized speed;
  
• (b) the number of loaded cars and empty cars on each train and cut of cars;
  
• (c) the names of the operator of the rolling stock and the operator of the track;
  
• (d) the date and time of the occurrence;
  
• (e) the number of crew members, passengers and other persons involved in the occurrence and the number of those that were killed or sustained a serious injury;
  
• (f) the number of rolling stock or intermodal platforms damaged or derailed and their reporting marks;
  
• (g) if rolling stock is damaged or has derailed,
  
  • (i) the total quantity of dangerous goods that is on board the rolling stock,
    
  • (ii) a list of the dangerous goods including the shipping name or UN number and the classification under the Transportation of Dangerous Goods Regulations, and
    
  • (iii) whether the cars of the rolling stock were loaded, empty or contained residue;
    
• (h) if dangerous goods are released from rolling stock,
  
  • (i) the total volume of dangerous goods that was on board the rolling stock,
    
  • (ii) the volume of dangerous goods that was released or, if that volume is unknown, the rate at which the dangerous goods were released,
    
  • (iii) a list of the dangerous goods that were released including the shipping name or UN number and the classification under the Transportation of Dangerous Goods Regulations, and
    
  • (iv) whether the cars of the rolling stock were loaded, empty or contained residue;
    
• (i) the weather conditions at the time of the occurrence, and any climatic conditions such as snow, ice, wind, fog, dust and severe heat that are considered to be a contributing factor;
  
• (j) the location of the occurrence including the mile, the subdivision and the track designation;
  
• (k) a description of the occurrence and the extent of any resulting damage to the environment and to the rolling stock, the railway and other property;
  
• (l) a list of any multi-media material relevant to the occurrence;
  
• (m) a description of any action taken to protect persons, property and the environment, including any evacuation as a result of the occurrence;
  
• (n) any supporting information specific to the occurrence that the Board requires; and
  
• (o) the name and title of the person making the report and the phone number and address where they can be reached.
  

Time limit

(3) The person making the report shall send to the Board

• (a) as soon as possible and by the quickest means available, all the information required under subsection (2) that is available at the time of the occurrence; and
  
• (b) the remainder of that information by the end of the calendar month following the month of the occurrence.
  

Time limit — exception

(4) In the case of an occurrence mentioned in paragraph (1)(l), the person making the report shall send all the information required under subsection (2) to the Board by the end of the calendar month following the month of the occurrence.

Agreement

(5) The Board and any person mentioned in subsection (1) may enter into an agreement regarding an alternative format and time frame for reporting railway occurrences that are not likely to require immediate Board response.

Exemption

(6) If a person making a report has sent any information described in subsection (2) to the Board

• (a) the Board may exempt other persons from the requirement to send that information to the Board; and
  
• (b) if the person is a member of a company, any other person from that company is exempt from the requirement to send that information to the Board.
  

Definitions

(7) The following definitions apply in this section.

“collision”
« collision »

“collision” means an impact, other than an impact associated with normal operating circumstances, between

• (a) rolling stock;
  
• (b) rolling stock and a person or vehicle; or
  
• (c) rolling stock and an object or animal, if there is damage to the rolling stock or a derailment.
  

“derailment”
« déraillement »

“derailment” means any time one or more wheels of rolling stock come off the normal running surface of the rail.

“main track”
« voie principale »

“main track” means a track on which

• (a) train or track unit movements or track work are governed by one or more methods of control as defined in the Canadian Rail Operating Rules; or
  
• (b) train or track unit movements are governed by operating rules applicable to a track designated by a railway company as a subdivision track.
  

“risk of collision”
« risque de collision »

“risk of collision” means a situation in which rolling stock comes so close to being involved in a collision that a threat to the safety of any person, property or the environment exists.

VOLUNTARY REPORTING

Report to Board

6. Any person having knowledge of a transportation occurrence, other than those persons required to report the occurrence to the Board, may voluntarily report to the Board any information that they believe to be relevant.

Protection of identity

7. If a person making a report under section 6 requests that the Board protect their identity, the Board shall protect their identity.

KEEPING AND PRESERVATION OF EVIDENCE

Evidence

8. (1) Every person having access to, or control over, evidence relating to a transportation occurrence shall keep and preserve the evidence unless the Board provides otherwise.

Safety

(2) Subsection (1) shall not be construed as preventing any person from taking the necessary measures to ensure the safety of any person, property or the environment.

Record the evidence

(3) Any person who takes those measures shall, to the extent possible in the circumstances and before taking those measures, record the evidence by the best means available and shall advise the Board of their actions.

Exemption

(4) The Board may exempt any person from the requirement to keep and preserve evidence if another person has already kept or preserved that evidence.

PART 2

INVESTIGATIONS OF TRANSPORTATION OCCURRENCES AND PUBLIC INQUIRIES

INVESTIGATIONS

Interviews

In camera

9. (1) An interview of a person required to attend before an investigator in accordance with subparagraph 19(9)(a)(i) of the Act shall be held in camera.

Persons to attend interview

(2) Only the following persons may attend an interview:

• (a) a person requested by the investigator to attend; and
  
• (b) subject to the approval of the investigator, one person chosen by the person being interviewed.
  

Intervention

(3) Unless permitted by the investigator, the person chosen to attend an interview shall not intervene at any time during the interview.

Recording of statements

(4) Any statement of a person attending before an investigator shall be recorded by any method that the investigator considers appropriate to obtain a complete and usable record of the statement.

Copies

(5) On written request, a person making a statement shall be provided with a copy of that statement.

Presence at Tests

Representation and record

10. When a person is invited to be present at a test in accordance with subparagraph 19(5)(b)(i) of the Act, that person may

• (a) be represented by a person having technical knowledge and expertise in the subject matter of the test; and
  
• (b) record or cause to be recorded the condition of the thing being tested before, during and after the test.
  

Rights and Privileges of Observers Attending an Investigation

Activities of observers

11. (1) When the Board is conducting an investigation of a transportation occurrence, the Board may authorize an observer referred to in paragraph 23(2)(b) or (d) of the Act to undertake any or all of the following activities, under the supervision of an investigator:

• (a) attending at the location of the transportation occurrence;
  
• (b) examining the means of transportation involved in the occurrence and its component parts and contents;
  
• (c) examining the information relating to
  
  • (i) the transportation activity during which the occurrence took place,
    
  • (ii) the means of transportation and its component parts and contents, and
    
  • (iii) any person directly involved in the occurrence; and
    
• (d) attending the laboratory tests or analyses.
  

Confidentiality

(2) An observer shall not knowingly communicate or use, or knowingly permit to be communicated or used, any information that the observer has obtained during the investigation without the express authorization of the Board.

Keeping and Preservation of Information

Investigation file

12. (1) If the Board conducts an investigation into a transportation occurrence, the Board shall open and maintain a file relating to the investigation.

Contents of file

(2) An investigation file shall contain all of the information relevant to the accident and records of representations required to be kept by the Board under paragraph 24(4)(b) of the Act.

Period of preservation

(3) An investigation file shall be preserved by the Board for a period of not less than 10 years after the date of the transportation occurrence.

Warrants

Warrant

13. (1) A warrant issued to an investigator under subsection 19(3) of the Act shall be as set out in Form 1 of the schedule.

Specific form

(2) A warrant issued in accordance with the procedures referred to in subsection 19(4) of the Act shall be as set out in Form 5.1 of the Criminal Code with any modifications that the circumstances require.

Investigator’s Notices

Form 2

14. (1) If an investigator requires, under subparagraph 19(9)(a)(i) of the Act, the production of information or attendance before the investigator, the investigator’s notice shall be as set out in Form 2 of the schedule.

Form 3

(2) If an investigator requires, under paragraph 19(9)(b) of the Act, that a person involved in the operation of an aircraft, ship, rolling stock or pipeline submit to a medical examination, the investigator’s notice shall be as set out in Form 3 of the schedule.

Form 4

(3) If an investigator requires, under paragraph 19(9)(c) of the Act, that a physician or other health practitioner provide information concerning a patient, the investigator’s notice shall be as set out in Form 4 of the schedule.

Form 5

(4) If an investigator requires, under paragraph 19(9)(d) of the Act, that a person having custody of the body of a deceased person or of human remains permit the performance of an autopsy on the body or the carrying out of other medical examinations of those human remains, as the case may be, the investigator’s notice shall be as set out in Form 5 of the schedule.

PUBLIC INQUIRIES

Public hearing

15. (1) If the Board holds a public inquiry, conducted in accordance with subsection 21(1) of the Act, it shall proceed, for the purpose of ascertaining facts and circumstances relating to the transportation occurrence, by way of a public hearing during which witnesses may be examined.

Presiding officer

(2) If, under subsection 21(1) of the Act, the Chairperson designates a person to conduct a public inquiry, that person shall act as the presiding officer or, if more than one person is designated to conduct a public inquiry, the Chairperson shall designate one of those persons to act as the presiding officer.

File

(3) If the Board holds a public inquiry, it shall open and maintain a file relating to the public inquiry and that file shall contain all of the records relevant to the inquiry.

Establishment of technical panel

16. The Director of Investigations (Air), the Director of Investigations (Marine) or the Director of Investigations (Rail and Pipelines), as the case may be, shall, for the purposes of a public inquiry, establish a technical panel and designate investigators or persons referred to in subsection 9(2) of the Act to be members of the panel.

Participants in public inquiry

17. The Board may permit any person having an interest in the matter to participate in a public inquiry.

Pre-inquiry conference

18. (1) The presiding officer may hold a pre-inquiry conference at a time and place determined by the presiding officer and shall give notice of the pre-inquiry conference to the participants.

Extent of the public inquiry

(2) At the pre-inquiry conference and after consulting with the participants, the presiding officer shall determine the extent of the public inquiry and the facts and the safety matters to be addressed, including the witnesses to be examined, the order in which the witnesses may be examined, the areas in respect of which the witnesses may be examined and the exhibits to be produced.

Time and place

19. The presiding officer shall determine the time and place for a public inquiry and give notice of the public inquiry to the participants.

Responsibilities of presiding officer

20. (1) The presiding officer is responsible for resolving questions of admissibility of evidence, disposing of procedural matters and adjourning the public inquiry from time to time and from place to place, compelling the attendance of witnesses by issuing subpoenas, keeping appropriate records of the proceedings and taking any other appropriate action for the orderly conduct of the public inquiry.

Evidence

(2) The public inquiry may receive evidence that is relevant to the inquiry and that will advance the investigation of the transportation occurrence.

Subpoena

(3) A subpoena issued to a witness shall be as set out in Form 6 of the schedule and served personally on the witness or, if personal service is impractical, by registered mail at the last known address of the witness, at least 10 days before the date set for the attendance of the witness, if the witness resides not more than 500 km from the required place of attendance, or at least 30 days before the date set for the attendance of the witness, if the witness resides more than 500 km from the required place of attendance.

Subpoena sent by registered mail

(4) A subpoena sent by registered mail is deemed to have been served on the witness five clear days after the postmarked date.

Report

21. (1) After a public inquiry is completed, the presiding officer shall report to the Board respecting the facts and circumstances in respect of which evidence was gathered during the public inquiry.

Consideration of report

(2) The Board shall consider the report in making its final findings as to the causes and contributing factors of a transportation occurrence, in identifying any safety deficiencies and in making any recommendations in the interests of transportation safety.

WITNESS FEES AND ALLOWANCES

Fees and allowances

22. Any person attending at an investigation under subparagraph 19(9)(a)(i) of the Act or any witness attending at a public inquiry may be paid a fee and allowance for travel and living expenses in accordance with the Travel Directive of the National Joint Council and the Treasury Board of Canada Secretariat, as amended from time to time, or Tariff A of the Federal Court Rules, as the case may be.

REPEAL

Repeal

23. The Transportation Safety Board Regulations (see footnote 1) are repealed.

COMING INTO FORCE

Registration

24. These Regulations come into force on the day on which they are registered.

SCHEDULE

[36-1-o]

Footnote a
S.C. 1989, c. 3

Footnote b
S.C. 1998, c. 20, s. 21

Footnote 1
SOR/92-446