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Registration

SOR/2014-37 February 28, 2014

CANADIAN TRANSPORTATION ACCIDENT INVESTIGATION AND SAFETY BOARD ACT

Transportation Safety Board Regulations

P.C. 2014-167 February 28, 2014

Whereas, pursuant to subsection 34(3) of the Canadian Transportation Accident Investigation and Safety Board Act (see footnote a), a copy of the proposed Transportation Safety Board Regulations, substantially in the annexed form, was published in the Canada Gazette, Part I, on September 3, 2011 and a reasonable opportunity was afforded to interested persons to make representations to the Canadian Transportation Accident Investigation and Safety Board with respect to the proposed Regulations;

Therefore, the Canadian Transportation Accident Investigation and Safety Board, pursuant to subsections 31(1) and (3) and 34(1) (see footnote b) of the Canadian Transportation Accident Investigation and Safety Board Act (see footnote c), makes the annexed Transportation Safety Board Regulations.

Ottawa, January 10, 2014

WENDY TADROS
Chairperson of the Board

His Excellency the Governor General in Council, on the recommendation of the Leader of the Government in the House of Commons, pursuant to subsections 31(1) and (3) and 34(1) (see footnote d) of the Canadian Transportation Accident Investigation and Safety Board Act (see footnote e), approves the annexed Transportation Safety Board Regulations, made by the Canadian Transportation Accident Investigation and Safety 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 OF TRANSPORTATION OCCURRENCES
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. Form 1

Investigator’s Notices

14. Form 2

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

23. REPEAL

COMING INTO FORCE

24. Registration

SCHEDULE

FORM 1

WARRANT TO SEARCH AND SEIZE

Issued under subsection 19(3) of the Canadian Transportation Accident Investigation and Safety Board Act

FORM 2

STATUTORY SUMMONS

Issued under subparagraph 19(9)(a)(i) of the Canadian Transportation Accident Investigation and Safety Board Act

FORM 3

STATUTORY SUMMONS

Issued under paragraph 19(9)(b) of the Canadian Transportation Accident Investigation and Safety Board Act

FORM 4

STATUTORY SUMMONS

Issued under paragraph 19(9)(c) of the Canadian Transportation Accident Investigation and Safety Board Act

FORM 5

STATUTORY SUMMONS

Issued under paragraph 19(9)(d) of the Canadian Transportation Accident Investigation and Safety Board Act

FORM 6

SUBPOENA

Issued under subsection 20(3) of the Transportation Safety Board Regulations

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.

“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 5% of the body surface;
  • (e) a verified exposure to infectious substances or injurious radiation; or
  • (f) an injury that is likely to require hospitalization.

“UN number”
« numéro ONU »

“UN number” has the same meaning as in section 1.4 of the Transportation of Dangerous Goods Regulations.

PART 1

REPORTS

MANDATORY REPORTING
Aviation Occurrences

Report to Board

2. (1) The owner, operator, pilot-in-command, any crew member of the aircraft and any person providing air traffic services that have direct knowledge of an occurrence must report the following aviation occurrences to the Board if they result directly from the operation of an aircraft:

  • (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) being directly exposed 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 is detected or a 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 which poses a threat to the safety of persons, property or the environment,
    • (vii) depressurization of the aircraft occurs that requires an emergency descent,
    • (viii) a fuel shortage occurs that requires 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 must contain the following information:

  • (a) the type, model, nationality and registration marks of the aircraft;
  • (b) the name of the owner, operator, pilot-incommand 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 who were killed or sustained serious injuries as a result of the occurrence;
  • (g) the location of the occurrence by reference to an easily defined geographical point, or by latitude and longitude;
  • (h) a description of the occurrence and the extent of any resulting damage to the environment and to the aircraft and any other property;
  • (i) 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;
  • (j) if the aircraft is missing or 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, and
    • (ii) the actions taken or planned to locate or gain access to the aircraft;
  • (k) a description of any action taken or planned to protect persons, property and the environment;
  • (l) the name and title of the person making the report and the phone number and address at which they can be reached; and
  • (m) any information specific to the occurrence that the Board requires.

Time limit

(3) The person making the report must 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 a 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; 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.

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 subsection 101.01(1) of 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, published by the Department of Transport, as amended from time to time.

“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 subsection 101.01(1) of the Canadian Aviation Regulations.

“owner”
« propriétaire »

“owner” has the same meaning as in subsection 101.01(1) of 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) The operator of the ship, other than a pleasure craft, whether or not they are the owner, the master, the ship’s pilot, any crew member of the ship and the harbour master, that have direct knowledge of a marine occurrence must report the following marine occurrences to the Board:

  • (a) a person is killed or sustains a serious injury as a result of
    • (i) boarding, being on board or falling overboard from the ship, or
    • (ii) coming into direct contact with any part of the ship or its contents;
  • (b) a person falls overboard from the ship;
  • (c) 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 which poses a threat to the safety of persons, property or the environment;
  • (d) the ship
    • (i) sinks, founders or capsizes,
    • (ii) is involved in a collision or a risk of a collision,
    • (iii) sustains a fire or an explosion,
    • (iv) goes aground,
    • (v) makes unforeseen contact with the bottom without going aground,
    • (vi) sustains damage that affects its seaworthiness or renders it unfit for its purpose,
    • (vii) is anchored, grounded or beached to avoid an occurrence,
    • (viii) is missing or abandoned,
    • (ix) fouls a utility cable or pipe, or an underwater pipeline,
    • (x) sustains a total failure of
      • (A) the navigation equipment if the failure poses a threat to the safety of any person, property or the environment,
      • (B) the main or auxiliary machinery, or
      • (C) the propulsion, steering, or deck machinery if the failure poses a threat to the safety of any person, property or the environment;
  • (e) all or part of the ship’s cargo shifts or falls overboard; or
  • (f) there is an accidental release on board or from the ship consisting of a quantity of dangerous goods or an emission of radiation that is greater than the quantity or emission levels specified in Part 8 of the Transportation of Dangerous Goods Regulations.

Information in report

(2) The report must contain the following information:

  • (a) the name or identification number, nationality and type of the ship and, if applicable, a general description of the cargo on board the ship;
  • (b) the date and time of the occurrence;
  • (c) the names of the operator, owner and agents of the ship and, if applicable, the name of the authorized representative referred to in subsection 14(1) of the Canada Shipping Act, 2001;
  • (d) the name of the master of the ship and, if applicable, the name of the ship’s pilot;
  • (e) the technical specifications of the ship such as its tonnage, length and type of propulsion;
  • (f) if the ship is equipped with a voyage data recorder or a simplified voyage data recorder,
    • (i) the type of recorder, including its make and model, and
    • (ii) any action taken or planned to save the data on the recorder;
  • (g) the last point of departure and the intended destination of the ship, including the date and time of the departure;
  • (h) the number of crew members, passengers and other persons on board at the time of the occurrence;
  • (i) the number of crew members, passengers and other persons involved in the occurrence who were killed or sustained serious injuries as a result of the occurrence;
  • (j) the local weather, sea and, if applicable, ice conditions at the time of the occurrence;
  • (k) the location of the occurrence by reference to an easily defined geographical point, or by latitude and longitude;
  • (l) a description of the occurrence and the extent of any resulting damage to the ship, the environment and any other property;
  • (m) if applicable, a list of any dangerous goods released on board or from the ship, including the shipping name or UN number of the dangerous goods;
  • (n) if the ship is missing or inaccessible,
    • (i) 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, and
    • (ii) the actions taken or planned to locate or gain access to the ship;
  • (o) a description of any action taken or planned to protect persons, property and the environment;
  • (p) the name and title of the person making the report and the phone number and address at which they can be reached; and
  • (q) any information specific to the occurrence that the Board requires.

Time limit

(3) The person making the report must 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 a 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; 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.

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 they are 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 they are the owner, and master of the towing ship.

Definitions

(8) The following definitions apply in this section.

“collision”
« collision »

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

“master”
« capitaine »

“master” means the person who is in command or 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 de collision »

“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) The operator of a pipeline must report the following pipeline occurrences to the Board if they result directly from the operation of the pipeline:

  • (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 came into contact with it, or
    • (ii) a fire or explosion or an ignition that is not associated with normal pipeline operations;
  • (c) an event or an operational malfunction results in
    • (i) an unintended or uncontrolled release of gas,
    • (ii) an unintended or uncontrolled release of HVP hydrocarbons,
    • (iii) an unintended or uncontained release of LVP hydrocarbons in excess of 1.5 m3, or
    • (iv) an unintended or uncontrolled release of a commodity other than gas, HVP hydrocarbons or LVP hydrocarbons;
  • (d) there is a release of a commodity from the line pipe body;
  • (e) the pipeline is operated beyond design limits or any operating restrictions imposed by the National Energy Board;
  • (f) the pipeline restricts the safe operation of any mode of transportation;
  • (g) an unauthorized third party activity within the safety zone poses a threat to the safe operation of the pipeline;
  • (h) a geotechnical, hydraulic or environmental activity poses a threat to 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 that poses a threat to any person, property or the environment.

Information in report

(2) The report must contain the following information:

  • (a) the name of the operator;
  • (b) the date and time of the occurrence;
  • (c) the unique identifier of the pipeline or portion of pipeline, such as its name or number;
  • (d) the specific pipeline components that malfunctioned or failed;
  • (e) the location of the occurrence by reference to a specific designation point such as the operator’s facility or the pipeline’s kilometre post location;
  • (f) the closest city, town or village to the occurrence site;
  • (g) the number of persons who were killed or sustained serious injuries as a result of the occurrence;
  • (h) a list of any commodity contained in or released from the pipeline and an estimate of the volume of commodity released and recovered;
  • (i) the actual or anticipated duration of any interruption of the operation of the pipeline or a portion of the pipeline;
  • (j) a description of the occurrence, the events leading up to it and the extent of any damage, including the consequences on the pipeline or portion of the pipeline and on any other property and the environment;
  • (k) a description of any action taken or planned to address the consequences of the occurrence;
  • (l) a description of any action taken or planned to protect persons, property and the environment, including any evacuation as a result of the occurrence;
  • (m) the name and title of the person making the report and the phone number and address at which they can be reached; and
  • (n) any information specific to the occurrence that the Board requires.

Time limit

(3) The person making the report must 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 the operator of the pipeline may enter into an agreement regarding a format and time frame for reporting pipeline occurrences that are not likely to require immediate Board response.

Definitions

(5) The following definitions apply in this section.

“CSA Z662”
« norme CSA Z662 »

“CSA Z662” means Canadian Standards Association Standard Z662 entitled Oil and Gas Pipeline Systems, as amended from time to time.

“design limits”
« limites de calcul »

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

“HVP”
« HPV »

“HVP” means high vapour pressure as defined in CSA Z662.

“LVP”
« BPV »

“LVP” means low vapour pressure as defined in CSA Z662.

“operator”
« exploitant »

“operator” means the company that operates the pipeline or portion of the pipeline.

“safety zone”
« zone de sécurité »

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

Railway Occurrences

Report to Board

5. (1) The operator of the rolling stock, the operator of the track and any crew member that have direct knowledge of a railway occurrence must report the following railway occurrences to the Board:

  • (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) are involved in a collision or derailment,
    • (ii) sustain damage that affects the safe operation of the rolling stock,
    • (iii) cause or sustain a fire or explosion, or
    • (iv) cause damage to the railway that poses a threat to the safe passage of rolling stock or to the safety of any person, property or the environment;
  • (c) a risk of collision occurs between rolling stock;
  • (d) an unprotected main track switch or subdivision 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 subdivision track, or track work takes place, in contravention of the Rules or any regulations made under the Railway Safety Act;
  • (g) rolling stock passes a signal indicating stop in contravention of the Rules or any regulations made under the Railway Safety Act;
  • (h) there is an unplanned and uncontrolled movement of rolling stock;
  • (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 which poses a threat to the safety of persons, property or the environment; or
  • (j) there is an accidental release on board or from a rolling stock consisting of a quantity of dangerous goods or an emission of radiation that is greater than the quantity or emission level specified in Part 8 of the Transportation of Dangerous Goods Regulations.

Information in report

(2) The report must 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 who were killed or sustained serious injuries as a result of the occurrence;
  • (f) the number of rolling stock or intermodal platforms that are damaged or have derailed and their reporting marks;
  • (g) for each rolling stock that is damaged or has derailed, whether the rolling stock is loaded, empty or contains residue;
  • (h) for each damaged or derailed rolling stock a list of all the dangerous goods on board the rolling stock, including the shipping name or UN number of the dangerous goods;
  • (i) if dangerous goods are released,
    • (i) the shipping name or UN number of each dangerous good,
    • (ii) the reporting marks of each rolling stock from which the dangerous goods were released,
    • (iii) a brief description of each of the means of containment from which the dangerous goods were released, including the specification of the means of containment,
    • (iv) a brief description of the condition of each of the means of containment from which the dangerous goods were released,
    • (v) the quantity of the dangerous goods on board each rolling stock or in each means of containment prior to the occurrence, and
    • (vi) the quantity of each dangerous good that is known or suspected to have been released;
  • (j) the local weather conditions at the time of the occurrence and any climatic conditions such as snow, ice, wind, fog, dust and severe heat;
  • (k) the location of the occurrence, including the mile, the subdivision and the track designation;
  • (l) 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;
  • (m) a description of any action taken or planned to protect persons, property and the environment, including any evacuation as a result of the occurrence;
  • (n) the name and title of the person making the report and the phone number and address at which they can be reached; and
  • (o) any information specific to the occurrence that the Board requires.

Time limit

(3) The person making the report must 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.

Agreement

(4) The Board and any person mentioned in subsection (1) may enter into an agreement regarding a format and time frame for reporting railway 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; 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.

Definitions

(6) 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 the rolling stock is damaged or derailed.

“derailment”
« déraillement »

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

“main track”
« voie principale »

“main track” has the same meaning as in the Rules.

“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.

“Rules”
« Règles »

“Rules” means the Canadian Rail Operating Rules, as amended from time to time and approved by the Minister of Transport in accordance with subsection 19(1) of the Railway Safety Act.

“subdivision track”
« voie de subdivision »

“subdivision track” has the same meaning as in the Rules.

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 must protect their identity.

KEEPING AND PRESERVATION OF EVIDENCE

Evidence

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

Safety

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

Record of evidence

(3) Any person who takes the measures referred to in subsection (2) must, to the extent possible in the circumstances and before taking those measures, record the evidence by the best means available and 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 and preserved that evidence.

PART 2

INVESTIGATIONS OF TRANSPORTATION OCCURRENCES AND PUBLIC INQUIRIES

INVESTIGATIONS OF TRANSPORTATION OCCURRENCES
Interviews

In camera

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

Persons to attend interview

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

  • (a) any person who is requested by the investigator to attend; and
  • (b) subject to subsection (3), one person chosen by the person who is being interviewed.

Restriction on persons attending

(3) The person who is being interviewed must not choose a person to attend an interview who is required to attend before an investigator in accordance with subparagraph 19(9)(a)(i) of the Act.

Exclusion

(4) The investigator may exclude from the interview the person chosen by the person who is being interviewed if that person’s behaviour or interventions interfere with the proper conduct of the interview.

Statement

(5) Any statement of a person attending before an investigator must be taken in a manner so that a complete and usable record of the statement is obtained.

Copy

(6) On written request, a person making a statement must 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 subsection 23(2) 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 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 who is directly involved in the occurrence; and
  • (d) attending the laboratory tests or analyses.

Confidentiality

(2) An observer must 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 must open and maintain a file relating to the investigation.

Contents of file

(2) An investigation file must contain all of the information relevant to the transportation occurrence 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 must be preserved by the Board for a period of not less than 20 years after the date of the transportation occurrence.

Warrants

Form 1

13. (1) A warrant issued to an investigator under subsection 19(3) of the Act must 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 must 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 must 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 must 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 must 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 the human remains, as the case may be, the investigator’s notice must be as set out in Form 5 of the schedule.

PUBLIC INQUIRIES

Public hearing

15. (1) A public inquiry conducted under subsection 21(1) of the Act must proceed, for the purpose of ascertaining the 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 is to act as the presiding officer or, if more than one person is designated to conduct a public inquiry, the Chairperson must designate one of those persons to act as the presiding officer.

File

(3) The Board must open and maintain a file relating to each public inquiry conducted and that file must 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, must establish a technical panel for the purposes of a public inquiry 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 is to give notice of the pre-inquiry conference to the participants.

Extent of public inquiry

(2) At the pre-inquiry conference and after consulting with the participants, the presiding officer must 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 is to 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 and the production of documents and objects 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 presiding officer 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 must be as set out in Form 6 of the schedule and served personally on them or, if personal service is impractical, by registered mail at their last known address, at least 10 days before the date set for their attendance, if they reside not more than 500 km from the required place of attendance, or at least 30 days before the date set for their attendance, if they reside 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 must report to the Board respecting the facts and circumstances with respect to which evidence was gathered during the public inquiry.

Consideration of report

(2) The Board must 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 before an investigator 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

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

COMING INTO FORCE

Registration

24. (1)These Regulations, except for Part I, come into force on the day on which they are registered.

July 1, 2014

(2) Part 1 comes into force on July 1, 2014.

SCHEDULE
(Subsection 13(1), section 14 and subsection 20(3))

Transportation
Safety Board
of Canada

Seal of the Government of Canada


Bureau de la sécurité
des transports
du Canada

FORM 1

CANADA

____________________________________
Province or Territory

WARRANT TO SEARCH AND SEIZE

Issued under subsection 19(3) of the Canadian Transportation Accident Investigation and Safety Board Act

TO: _____________________________________________________, an
name of investigator

investigator of the Canadian Transportation Accident Investigation and Safety Board:

WHEREAS it appears on oath of __________________________ that he/she believes on reasonable grounds that there is or may be any thing or things, namely __________________________, that are relevant to the conduct of a lawful investigation into a transportation occurrence, namely

__________________________________________________________________

__________________________________________________________________,

and that are located in __________________________, in this form called the premises;

THIS IS, THEREFORE, to authorize you, between the hours of __________________________ and __________________________, to enter the said premises and to search for the said thing or things, to seize them until they are returned in accordance with section 20 of the Canadian Transportation Accident Investigation and Safety Board Act;

And furthermore, to authorize you to use force to the extent necessary to execute this warrant, provided that you are accompanied by a peace officer.

Signed at __________________________
location

on __________________________
date

_________________________________________
name and signature

Justice of the Peace in and for

_________________________________________
Judicial District or Province

Governement of Canada Trademark

Transportation
Safety Board
of Canada

Seal of the Government of Canada


Bureau de la sécurité
des transports
du Canada

FORM 2

STATUTORY SUMMONS

Issued under subparagraph 19(9)(a)(i) of the Canadian Transportation Accident Investigation and Safety Board Act

IN THE MATTER OF: The Canadian Transportation Accident Investigation and Safety Board investigation into the following transportation occurrence:

__________________________________________________________________

__________________________________________________________________
name or description of the occurrence

TO: __________________________________________________________________

ADDRESS: __________________________________________________________________

__________________________________________________________________

WHEREAS I BELIEVE on reasonable grounds that you are in possession of information relevant to the investigation, YOU ARE REQUIRED to

check box Attend before me in order to give a statement, under oath or solemn affirmation, if required, concerning that matter, at

__________________________________________________________________
location description or address

on __________________________
date

at __________________________
time

check box Produce the following information or records no later than

__________________________
   time

on __________________________
    date

at __________________________________________________________________
         location description or address

__________________________________________________________________

__________________________________________________________________

__________________________________________________________________

FAILURE TO COMPLY with this summons may result in a contravention of subsection 19(10) of the Canadian Transportation Accident Investigation and Safety Board Act and an offence under paragraph 35(1)(a) of that Act and may also result in an application setting out the facts made to the Federal Court of Canada or a superior court of a province, under subsection 19(15.1) of that Act, to inquire into the failure to comply with this summons.

Signed at __________________________
                   location

on __________________________
        date

_________________________________________
        signature

Investigator of the Canadian Transportation Accident Investigation and Safety Board

Governement of Canada Trademark

Transportation
Safety Board
of Canada

Seal of the Government of Canada


Bureau de la sécurité
des transports
du Canada

FORM 3

STATUTORY SUMMONS

Issued under paragraph 19(9)(b) of the Canadian Transportation Accident Investigation and Safety Board Act

IN THE MATTER OF: The Canadian Transportation Accident Investigation and Safety Board investigation into the following transportation occurrence:

__________________________________________________________________

__________________________________________________________________
name or description of the occurrence

TO: _______________________________________________________________

ADDRESS: _________________________________________________________

__________________________________________________________________

WHEREAS you were directly or indirectly involved in the operation of

__________________________________________________________________ and
description of equipment

WHEREAS I BELIEVE on reasonable grounds that a medical examination is or may be relevant to the investigation, you are required to submit to a medical examination:

at __________________________________________________________________
        location description or address

before __________________________________________________________________
                   name of examiner

on ____________________________________
             date

at ____________________________________
             time

FAILURE TO COMPLY with this summons may result in a contravention of subsection 19(11) of the Canadian Transportation Accident Investigation and Safety Board Act and an offence under paragraph 35(1)(a) of that Act and may also result in an application setting out the facts made to the Federal Court of Canada or a superior court of a province, under subsection 19(15.1) of that Act, to inquire into the failure to comply with this summons.

Signed at ____________________________________
                        location

on ____________________________________
                  date

_________________________________________
signature

Investigator of the Canadian Transportation Accident Investigation and Safety Board

Governement of Canada Trademark

Transportation
Safety Board
of Canada

Seal of the Government of Canada


Bureau de la sécurité
des transports
du Canada

FORM 4

STATUTORY SUMMONS

Issued under paragraph 19(9)(c) of the Canadian Transportation Accident Investigation and Safety Board Act

IN THE MATTER OF: The Canadian Transportation Accident Investigation and Safety Board investigation into the following transportation occurrence:

__________________________________________________________________

__________________________________________________________________
name or description of the occurrence

TO: ______________________________________________________________

ADDRESS: _________________________________________________________

__________________________________________________________________

WHEREAS I BELIEVE on reasonable grounds that you have information concerning a patient, namely _____________________________________________________ that is or may be relevant to the investigation,

YOU ARE REQUIRED to provide the following information:

__________________________________________________________________

__________________________________________________________________

__________________________________________________________________

FAILURE TO COMPLY with this summons may result in a contravention of subsection 19(10) of the Canadian Transportation Accident Investigation and Safety Board Act and an offence under paragraph 35(1)(a) of that Act and may also result in an application setting out the facts made to the Federal Court of Canada or a superior court of a province, under subsection 19(15.1) of that Act, to inquire into the failure to comply with this summons.

Signed at ____________________________________
                           location

on ____________________________________
             date

_________________________________________
signature

Investigator of the Canadian Transportation Accident Investigation and Safety Board

Governement of Canada Trademark

Transportation
Safety Board
of Canada

Seal of the Government of Canada


Bureau de la sécurité
des transports
du Canada

FORM 5

STATUTORY SUMMONS

Issued under paragraph 19(9)(d) of the Canadian Transportation Accident Investigation and Safety Board Act

IN THE MATTER OF: The Canadian Transportation Accident Investigation and Safety Board investigation into the following transportation occurrence:

__________________________________________________________________

__________________________________________________________________
name or description of the occurrence

TO: ______________________________________________________________

ADDRESS: _________________________________________________________

__________________________________________________________________

WHEREAS you have custody of the body of a deceased person or human remains, namely _______________________________; and

WHEREAS I believe on reasonable grounds that the performance of an autopsy on the body of the deceased person or the carrying out of other medical examinations on those human remains is or may be relevant to the conduct of the investigation.

YOU ARE REQUIRED to permit the performance of the autopsy or medical examination:

by __________________________________________________________________
name of examiner

at __________________________________________________________________
location description or address

on __________________________
       date

at __________________________
       time

FAILURE TO COMPLY with this summons may result in a contravention of subsection 19(10) of the Canadian Transportation Accident Investigation and Safety Board Act and an offence under paragraph 35(1)(a) of that Act and may also result in an application setting out the facts made to the Federal Court of Canada or a superior court of a province, under subsection 19(15.1) of that Act, to inquire into the failure to comply with this summons.

Signed at ____________________________________
                         location

on ____________________________________
                date

_________________________________________
signature

Investigator of the Canadian Transportation Accident Investigation and Safety Board

Governement of Canada Trademark

Transportation
Safety Board
of Canada

Seal of the Government of Canada


Bureau de la sécurité
des transports
du Canada

FORM 6

SUBPOENA

Issued under subsection 20(3) of the Transportation Safety Board Regulations

IN THE MATTER OF: The Canadian Transportation Accident Investigation and Safety Board investigation into the following transportation occurrence:

__________________________________________________________________

__________________________________________________________________
name or description of the occurrence

TO: _______________________________________________________________

ADDRESS: _________________________________________________________

__________________________________________________________________

YOU ARE REQUIRED to appear before the public inquiry to be held

at __________________________________________________________________
location description or address

on __________________________
      date

at __________________________
      time

And to bring with you and produce the following documents or objects:

__________________________________________________________________

__________________________________________________________________

__________________________________________________________________

FAILURE TO COMPLY with the requirements of this subpoena may result in an offence under subsection 35(2) of the Canadian Transportation Accident Investigation and Safety Board Act and render you liable to penalties under that subsection.

Signed at ____________________________________
                       location

on ____________________________________
        date

_________________________________________
signature

Presiding Officer

Governement of Canada Trademark

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Executive summary

Issues: The previous Transportation Safety Board Regulations were approved in 1992 and had not been amended since that date. Over the years, there have been many changes in the transportation industry, changes to the Canadian Transportation Accident Investigation and Safety Board Act (the Act), changes to other government departments’ legislation and regulations, and changes to international agreements. In addition, the previous regulations had been subject to misinterpretation regarding the reporting of occurrences, the conduct of witness interviews and the protection of evidence.

Description: The Transportation Safety Board Regulations (the Regulations) repeal and replace the previous regulations in a new format, making the Regulations more user-friendly and bringing them up to date with the changes to the transportation industry in the last 22 years. Some of the occurrence reporting provisions (including the definitions) were harmonized with relevant federal legislation, industry standards and international agreements, resulting in some change to what is required to be reported to the Transportation Safety Board of Canada (TSB) in the event of a transportation occurrence. The Regulations also formalize selected TSB policies and procedures that evolved during the course of the past 22 years. The Regulations permit persons being interviewed by an investigator to be accompanied by a representative of their choice, as well as clarify the investigator’s authority on the interview process and require the recording of witness interviews. 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 Regulations do not result in any change to costs as they do not fundamentally change 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 previous and new regulations. Therefore, incremental costs to the industry should be minimal. Furthermore, the implementation of safety management system regulations by Transport Canada obligated many transportation companies to identify, record, and follow up on all accidents and incidents. In addition, the ever-increasing advancements in electronic data exchange will provide further opportunities for companies as well as the TSB to take advantage of additional cost savings associated with the electronic communication of occurrence data.

“One-for-One” Rule and small business lens: There is no increase in administrative burden for business as a result of this proposal, as companies already have in place systems and procedures to administer their operations regardless of these Regulations. Therefore, the “One-for-One” Rule does not apply to this proposal. Also, the small business lens does not apply to this proposal since the Regulations would not impose any additional costs on small business.

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

Issues

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 (the Act) permit the Board, subject to the approval of the Governor in Council, to make regulations.

The previous Transportation Safety Board Regulations describe the requirements for reporting transportation accidents and incidents and the requirements to be followed in an investigation or public inquiry. They were approved in 1992 and had not been amended since that date. Over the last 22 years, the legislative environment has evolved. For example, the Act was amended in 1998 to modernize it and update its terminology. Changes were also made to various modal legislation such as the Canada Shipping Act, 2001 and the Aeronautics Act, including their associated regulations. Furthermore, many international agreements governing various aspects of modal (e.g. marine, air) operations have also undergone significant changes.

In addition, the previous regulations had been subject to misinterpretation regarding the reporting of occurrences, the conduct of witness interviews and the protection of evidence.

Objectives

The objectives of the Transportation Safety Board Regulations (the Regulations) are to

  • Bring the Regulations up to date with the Act, other relevant federal legislation and regulations, industry standards and international agreements; and
  • Clarify certain provisions in order to prevent confusion and interpretation ambiguities between industry and the TSB.

This will continue to support the Act’s objective to advance transportation safety.

Description

The Regulations repeal and replace the previous regulations. The regulatory changes

  • Reorganize the Regulations from six sections to two parts;
  • Update and reorganize the definitions so that they are harmonized with terminology used in other relevant federal legislation and international agreements and standards;
  • Update the Regulations to modernize and clarify various previously ambiguous provisions and to harmonize them to the extent feasible with those of relevant federal legislation and international agreements and standards; and
  • Incorporate in the Regulations relevant existing TSB investigation policies and procedures that have evolved during the course of the last 22 years.

The following are the key elements of the new provisions:

Organization of the Regulations

The Regulations consist of two parts. The first part, “Reports,” outlines the mandatory reporting requirements for aviation, marine, pipeline and railway occurrences, and addresses voluntary occurrence reporting as well as the keeping and preservation of evidence. The second part, “Investigations of Transportation Occurrences and Public Inquiries,” outlines the detailed provisions for investigations, public inquiries, and witness fees and allowances.

Update of the definitions

The definitions have been harmonized with terminology used in other relevant federal acts and regulations as well as international agreements and industry standards. For example, definitions related to rail occurrences were harmonized with those in the Canadian Rail Operating Rules, and definitions related to aviation occurrences were aligned with the International Civil Aviation Organization’s Annex 13, Standards and Recommended Practices for Aircraft Accident and Incident Investigation. Furthermore, other modal-specific definitions were also revised where required, and relocated to the end of each mode’s reporting provisions for clarity and ease of reference.

Occurrence reporting

The Regulations modernize, clarify, streamline and harmonize occurrence reporting requirements for all modes. For example, in the marine, pipeline and rail modes, accidents and incidents are now commonly referred to as “occurrences,” and certain sections in the marine and pipeline modes are now reorganized for ease of reference and consistency. Furthermore, occurrence reports in all modes must now contain the telephone number of the person reporting the occurrence, as well as a description of any action taken to protect persons, properties and the environment.

For aviation occurrences, the reporting requirements are now harmonized with the relevant provisions of the International Civil Aviation Organization. For example, reportable occurrences include incidents that involve aircraft having a maximum certified take-off weight greater than 2 250 kg or operating under a certificate issued pursuant to Part VII of the Canadian Aviation Regulations.

For railway as well as marine occurrences, releases of dangerous goods are now reportable only if they meet or exceed criteria specified in Part 8 of the Transportation of Dangerous Goods Regulations. In addition, the requirement to provide relevant information on local weather conditions pertaining to railway occurrences, which has been captured in the past, is now included in the Regulations.

For marine occurrences, while a list of the navigation aids on board the ship is no longer required to be provided as part of an occurrence report, ships equipped with a voyage data recorder are now required to provide information on the type of recorder on board and actions taken to save the data on the on-board recorder.

Occurrence reporting provisions of the pipeline mode were clarified and streamlined, and reporting criteria for gas and other hydrocarbon releases have been harmonized with those of the National Energy Board. For example, while unintended or uncontained releases of low vapour pressure hydrocarbons from pipelines are now reportable only if they are in excess of 1.5 m3 in volume, the Regulations clarify that all commodity releases that originate from the body of the line pipe are reportable.

In order to allow occurrence reporting flexibility, the Regulations introduce a new provision in all modes that establishes the possibility of an alternative occurrence reporting format and time frame for occurrences that are not likely to require immediate TSB attention. This will provide further operational flexibility to industry while reducing the regulatory burden associated with the reporting of occurrences, without adversely impacting the TSB’s investigation operations.

Investigation of transportation occurrences

The Regulations consolidate, clarify and streamline the provisions pertaining to the investigation of transportation occurrences and public inquiries, including provisions pertaining to persons attending interviews, testing of items seized during an investigation, warrants, investigator notices, rights and privileges of observers attending an investigation, as well as the keeping and preservation of information.

The Regulations also formalize selected TSB policies and procedures that evolved during the course of the past 22 years and that are being used in TSB investigations. Such policies and procedures are consistent with the goal of the TSB, and having them reflected in the Regulations enhances clarity, transparency and awareness, and makes their consistent application easier. For example, in order to ensure that witnesses are not intimidated during an interview and speak openly without having numerous representatives constantly interrupt them, the Regulations specify that all interviews are to be held in camera and permit the person being interviewed to be accompanied by one representative of their choice. The Regulations also clarify the investigator’s authority on the interview process and require the recording of witness interviews.

Regulatory and non-regulatory options considered

No option other than regulatory could be considered because the fundamental purpose of the regulatory changes is the modernization and update of the previous regulations to incorporate various TSB policies and procedures that evolved during the course of the past 22 years and that are being used in TSB investigations. Having these policies and procedures reflected in the Regulations will make them enforceable while enhancing clarity, transparency and awareness. This will further enhance the support of the TSB’s objective of advancing transportation safety through the investigation of selected occurrences.

Benefits and costs

The regulatory changes affecting the occurrence reporting requirements modernize and clarify various previously ambiguous provisions, and harmonize them with those of relevant federal legislation and international agreements and standards.

The administrative systems, processes and personnel necessary to report and follow up on the TSB’s existing occurrence reporting requirements have been in place for many years at the various transportation companies under the jurisdiction of the TSB. In addition, transportation companies have been, for years, collecting additional detailed records of their transportation accidents and incidents, well beyond those that are required by the TSB’s previous and new occurrence reporting requirements. Furthermore, the vast majority of the reportable transportation occurrences originate from large transportation companies, which have in place safety management system requirements mandated by their regulator such as Transport Canada, the effect of which is that all accidents and incidents are identified, recorded and followed up on by the transportation companies. This has shifted the companies towards a more advanced safety management approach to risk control, with the identification of job tasks, assessment of the associated hazards and implementation of appropriate safety controls to mitigate the risks. Therefore, the Regulations will not require or trigger any change in those existing administrative processes and there should be no incremental costs to industry. In addition, the ever-increasing advancements in electronic data exchange will provide further opportunities for companies as well as the TSB to take advantage of additional cost savings associated with the electronic communication of occurrence data.

The benefits of the Regulations would be improved clarity in areas that were identified as problematic, in that they were open to various interpretations. The Regulations would also improve the administrative aspects of occurrence data collection due to the streamlining of selected modal provisions and the harmonization of various requirements with those of modal regulators, such as Transport Canada and the National Energy Board. Therefore, the Regulations are seen as positive.

“One-for-One” Rule

The “One-for-One” Rule does not apply to this proposal. The vast majority of aviation, marine, pipeline and railway companies have in place elaborate administrative systems and procedures to manage their operations, including activities related to the tracking, reporting and management of various occurrences. For example, under various safety management system requirements and practices, railway and marine companies have elaborate systems in place to detect, address and mitigate all dangerous goods leaks from a rolling stock or on board a ship, and to report such leaks if various regulatory thresholds are triggered. Therefore, there is no overall quantifiable change in administrative burden associated with the Regulations.

Small business lens

The small business lens does not apply to this proposal. However, a very small number of reportable transportation occurrences originate from smaller transportation companies and operators under the jurisdiction of the TSB. In order to help such smaller organizations to comply with the occurrence reporting requirements, the TSB has, over the past 22 years, provided them with additional assistance and flexibility. For example, TSB personnel will assist company personnel (in person or over the phone) in gathering and compiling required occurrence information and data, and guide them throughout the reporting process. As this practice will continue, no significant adverse impact on or incremental costs to smaller companies are expected.

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 suggested that the proposed 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 most 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 to risk management, with the identification of job tasks, assessment of the associated hazards, and implementation of appropriate safety controls. These administrative systems are already in place for all large operators.

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 proposed regulatory requirement regarding the recording of witness statements even though witness statements from this group in the past have been recorded on audio tape. In accordance with the Act, witness statements are protected and therefore cannot be released.

Several stakeholder groups object to allowing only one representative to attend the interview. They requested 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 objected to proposed provisions prohibiting the representative from intervening during the interview.

Prepublication

The proposed Regulations were prepublished in the Canada Gazette, Part I, on September 3, 2011, followed by a 90-day public comment period.

Seventeen letters of comments were received. The comments included proposals to revise certain terms used as well as proposals to revise and amend certain definitions. Some concerns were also expressed on the updated occurrence reporting requirements proposed for the pipeline and rail modes, and it was suggested to have the reporting requirements in the Regulations further harmonized with those of the respective modal regulators in order to reduce regulatory and administrative burden.

Concerns were also expressed regarding the proposed provisions giving the investigator the authority to approve any person chosen by a witness to accompany the witness at an interview, as well as the authority to restrict such a person from intervening during an interview unless permitted by the investigator. It was submitted that a person selected by an interviewee to accompany that interviewee must be at the discretion and sole choice of that interviewee, and not be subject to the approval of the investigator. It was further submitted that the person that accompanies a witness be able to intervene freely in the best interest of that witness. For example, it was submitted that a legal counsel accompanying a witness must be able to intervene to clarify a question or a comment.

Certain stakeholders submitted that the Regulations should allow the appointment of observers by family members or other persons with direct interest in an investigation (such as operators, carriers and insurance companies) without TSB interference. Furthermore, concerns were expressed regarding regulatory provisions whereby an observer may be authorized by the TSB to access information related to any person involved in an occurrence. According to stakeholders, appropriate safeguards must be put in place to ensure that the rights of the witnesses are protected. Concerns were also expressed on the lack of temporal restriction of the regulatory provision limiting the communication and use, by an observer, of information obtained during the investigation.

All comments were reviewed and addressed bearing in mind the TSB’s objective of advancing transportation safety through the investigation of selected occurrences.

The appointment of “observers” is governed by the provisions of subsection 23(2) of the Act. Observer status is granted by the TSB to persons who, in the opinion of the TSB, have a direct interest in the subject matter of the investigation and can potentially contribute to the advancement of transportation safety. Such persons include representatives from transportation companies, equipment manufacturers and regulatory agencies, and are often invited by the TSB to attend investigations under the supervision of an investigator and in accordance with the conditions imposed by the TSB. Therefore, it was determined that the Regulations will not include provisions for the appointment of observers by family members or other persons with direct interest in an investigation. However, it should be noted that the TSB will, pursuant to subsection 24(2) of the Act, provide, on a confidential basis, a copy of the draft investigation report to certain persons based on such considerations as their ability to comment on the technical accuracy of the report and whether their interests may be affected by the report. Such persons are referred to as “designated reviewers” and may include the next-of-kin of operating crew as well as representatives from regulators, operators and carriers. The designated reviewers are provided with a reasonable opportunity to make representations to the TSB prior to the issuance of the final report.

Witness statements are privileged information and protected by the Act. Furthermore, the Regulations contain provisions whereby the TSB may authorize the communication or use of information obtained by an observer during an investigation. In general, such authorizations are considered by the TSB taking into account the interests of transportation safety. As a result, it was determined that the Regulations will not include supplementary temporal restrictions limiting the communication and use, by an observer, of information obtained during the investigation.

The main changes to the proposed Regulations following their prepublication are outlined below:

  • Occurrence reporting provisions in the marine mode were revised, streamlined and harmonized with other federal regulations. For example, releases of dangerous goods on board or from ships are now reportable only if they exceed reportable quantities specified in Part 8 of the Transportation of Dangerous Goods Regulations. Furthermore, while a list of the navigation aids on board the ship is no longer required to be provided as part of an occurrence report, ships equipped with a voyage data recorder are now required to provide information on the type of recorder on board the ship and actions taken to save the data on the on-board recorder.
  • Occurrence reporting provisions in the pipeline mode were further clarified and streamlined. In addition, reporting criteria for gas and hydrocarbon releases have been harmonized with those of the National Energy Board’s Onshore Pipeline Regulations, 1999. For example, while the Regulations now require the reporting of unintended or uncontained releases of low vapour pressure hydrocarbons from pipelines only if they are in excess of 1.5 m3 in volume, they clarify that all commodity releases that originate from the body of the line pipe are reportable.
  • Occurrence reporting provisions in the rail mode were amended to clarify and streamline the regulatory requirements and to further harmonize certain provisions with those of other federal regulations. For example, the proposed provisions concerning the reporting of activation failures of automated crossing warning systems were removed, and releases of dangerous goods are now reportable only if they exceed reportable quantities specified in Part 8 of the Transportation of Dangerous Goods Regulations.
  • The Regulations were also amended to remove a proposed requirement of providing a list of relevant multimedia material as part of the occurrence report in all modes. Furthermore, in order to further streamline the occurrence data collection process, the provision permitting the collection of additional supporting information specific to an occurrence without serving formal statutory summons, initially proposed in the rail mode, was included in the other modes.
  • The proposed regulatory provisions pertaining to witness interviews have been modified to allow a witness to select, at their discretion, one person to accompany them at an interview, as long as that person is not another person being interviewed. The proposed provisions granting the investigator authority to restrict an accompanying person from intervening during an interview unless permitted by the investigator have been deleted. The investigator may now only exclude from the interview the accompanying person if that person’s interventions or behaviour interferes with the proper conduct of the interview.
  • Following a review of information retention policies and associated risks, it was determined that the 20-year minimum retention period for investigation records prescribed in the previous regulations will be maintained in the Regulations, despite the initial proposal to reduce that period to a minimum of 10 years. It was determined that the TSB requires maintaining direct control over the investigation records in order to meet operational requirements.

Implementation, enforcement and service standards

Part 1 of the Regulations, which addresses the occurrence reporting provisions, will come into effect on July 1, 2014. During the transition period, the TSB will conduct outreach activities in the form of briefings and meetings with various transportation stakeholders, indicating the changes to the Regulations. Ongoing operational support will also be provided to stakeholders in order to help them transition towards the updated reporting provisions. Notice of the Regulations will also be published in various trade magazines and on the TSB Web site.

The TSB has agreements with a number of entities involved in transportation occurrences in all modes. For example, Memoranda of Understanding (MOUs) have been in place for many years with modal regulators (e.g. Transport Canada and the National Energy Board), police (e.g. Royal Canadian Mounted Police) and provincial coroners. These MOUs facilitate the coordination of activities between the TSB and each party without compromising the respective independence of each other and with minimal adverse effects on operations. For example, many MOUs provide a “single-window” approach for the reporting of occurrences, which contributes to efficiencies by reducing administrative burden.

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

Contact

Mr. Allen C. Harding
General 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@bst-tsb.gc.ca