Railway Association of Canada

April 24, 2012

Mr. Luc Bourdon
Director General, Rail Safety
427 Laurier Ave
Ottawa Ontario K1A 0N5

Subject: Railway-Roadway Grade Crossing Regulation Policy

Dear Mr. Bourdon:

The Railway Association of Canada (RAC) would like to thank you for the opportunity to participate in the consultation process on the proposed Railway-Roadway Grade Crossing Regulations, currently being referred to as a policy. With railways being one of the major stakeholders on grade crossings, we feel it is important that our industry is able to provide feedback during this process.

Regulatory Process

We are very concerned by the fact that this new draft policy had been developed without any input from the rail industry. This is surprising, particularly in light of the fact that back in early 2000, a working group had been re-established to develop this regulation and had agreed on a number of items, particularly with respect to the joint responsibility for various safety-related elements. We feel strongly that a fulsome joint review of industry comments moving forward is essential to achieve a fair, effective and meaningful regulatory instrument.

Railway / Municipal Responsibilities at Grade Crossings

A review of this new proposed regulation reveals that many of the responsibilities that the regulator and the industry had previously agreed to, such as the role of the road authorities or private crossing owners, have now been shifted to the railways (such as sharing of information, snow removal on road surfaces of crossings, etc.). It seems that Transport Canada has decided to abandon its traditional role of defending railway safety through the RSA when it comes to municipal / landowner / road authority interfaces. This will translate into serious consequences for the industry in terms of added costs, TC enforcement decisions and how CTA may rule on dispute resolution cases when looking at the differing interpretations being introduced under the new draft regulation. For example, are TC inspectors going to reduce train speed or order re-scheduling of trains to address a municipal / railway safety issue? The RAC would like to understand how Transport Canada has justified this change under RSA.

In addition, planned changes to the Grade Crossing Improvement Program (GCIP) will also undermine railway safety investment capacity. The planned TC upgrade subsidy proportion will be dropped from the traditional 80% to 50%. The new draft regulation will not encourage municipalities to pay their fair share under this new program and railways will likely have to consider dramatically increasing their contributions to realize the benefits of these new installations. This may not bode well as a safety case, particularly when the traditional joint responsibility themes and shared expense traditions are now discouraged under the draft Grade Crossing Regulation.

Additional Regulatory Requirements

Unfortunately, the new proposed regulation has added additional responsibilities upon the railway industry, such as new signage (car storage signs), railway responsibility for snow clearing of road surface, railway responsibility for gathering and reporting data and a ten-minute (10) time limit to occupy crossings during train operations. A number of these responsibilities will represent an additional cost burden to the industry and create severe operational difficulties.

We are concerned that these requirements were not properly analyzed and weighted. We hope these additional potential costs and impacts to the industry will be reflected in the Regulatory Impact Analysis Statement (RIAS) or any other cost benefit assessment that must be conducted under the Cabinet Directive on Streamlining regulation. We believe that when these additional regulatory requirements to be imposed on the railways are properly estimated and impacts fully analyzed, that they will be not meet the rigor of appropriate risk assessment and cost benefit.

Implementation Target dates

The RAC and its members understand the importance of having standards for new crossings and to address significant changes that might have occurred over the years. However, we are concerned with the time frames for complying with the proposed regulation at existing crossings. These time frames are unrealistic due to the fact that railways have over 30,000 crossings to deal with across Canada. Our industry does not have the resources to meet these requirements, especially our shortline members. We are having difficulty understanding the reasoning behind this request when the numbers show crossing accidents have been reduced by 70% since 1996, including fatalities reduced by 54% and serious injuries reduced by 46%.

As an example, Item 29(3) it states "A responsible authority for a public crossing must ensure that, within five years after the [CIF], an item whose description is set out in column 1 of Table 1 conforms with the requirements of the provisions of the CRRGCS set out in column 2 for that item, in addition to the requirements of subsection (2)."

RAC members will need more than 5 years to deal with issues such as sightlines, surface and emergency notification. As previously stated, the industry does not have the resources to accomplish these tasks in such a restricted time frame and without the support of road authorities and municipalities.

The tight timeframes for compliance along with the significant costs involved would likely result in train speeds having to be reduced to comply with the new regulations. This will have a significant impact on the railway industry's ability to serve its customers and, by extension, the Canadian economy.

Coordination with CROR

Another issue is the incorporation of rules developed under the Canadian Railway Operating Rules (CROR) into this proposed regulation. The CROR is a document that is constantly being changed to improve safety and efficiencies in operations, though the RSA process. The rule development process being simpler and faster than the one applicable to regulations, we believe that to have the rules tied into the regulation would hinder the possibility of adapting to situations promptly. These rules should be left in the Canadian Railway Operating Rules.

Finally, the RAC has been working closely with our member railway companies on these and other issues with respect to the draft Policy on Grade Crossing safety. There are many detailed issues that we agree need review and further consultation. These points are outlined in detail in their submissions. We have reviewed their comments (CN and CP) and we concur with the submission material.

In closing, We once again thank you for the opportunity to respond to the draft policy and look forward to further detailed consultations directly between us, before the development of the Gazette I document.

Sincerely,
Mike Lowenger, P. Eng.
Vice-President Operation and Regulatory Affairs

Cc:

Mr. M. Bourque, RAC
Mr. W. Carlson, TC
Ms. M.J. Goulet, TC
Mr. N. Panetta, VIA
Mr. R. Smith, CP
Mr. D. Watts, CN

Mr. A. Branston, VIA
Mr. G. Gauthier, RAC
Mr. K. McKinnon, RAC
Mr. K. Shearer, CP
Mr. D. Thomas, CP