Vol. 146, No. 16 — August 1, 2012
Registration
SOR/2012-149 July 9, 2012
INTERNATIONAL BRIDGES AND TUNNELS ACT
Administrative Monetary Penalties Regulations (International Bridges and Tunnels)
The Minister of Transport, pursuant to section 43 of the International Bridges and Tunnels Act (see footnote a), hereby makes the annexed Administrative Monetary Penalties Regulations (International Bridges and Tunnels).
Ottawa, July 6, 2012
DENIS LEBEL
Minister of Transport
ADMINISTRATIVE MONETARY PENALTIES REGULATIONS (INTERNATIONAL BRIDGES AND TUNNELS)
INTERPRETATION
Meaning of “Act”
1. In these Regulations, “Act” means the International Bridges and Tunnels Act.
DESIGNATED PROVISIONS
Provisions of the Act and Regulations
2. (1) The provisions of the Act set out in column 1 of Part 1 of the schedule and the provisions of the International Bridges and Tunnels Regulations set out in column 1 of Part 2 of the schedule are designated as provisions the contravention of which is a violation that may be proceeded with in accordance with sections 45 to 55 of the Act.
Corporation
(2) An amount set out in column 2 of the schedule is prescribed as the maximum penalty payable by a corporation in respect of a contravention of the designated provision set out in column 1.
Individual
(3) An amount set out in column 3 of the schedule is prescribed as the maximum penalty payable by an individual in respect of a contravention of the designated provision set out in column 1.
Orders and directives
3. (1) The provisions of an order made under section 9, 13, 15.1 or 26 of the Act and the provisions of a directive made under section 17 or 18 of the Act are designated as provisions the contravention of which may be proceeded with as a violation in accordance with sections 45 to 55 of the Act.
Maximum penalty
(2) The maximum amount of a penalty payable in respect of a contravention of a designated provision referred to in subsection (1) is $25,000 in the case of a corporation and $5,000 in the case of an individual.
COMING INTO FORCE
Publication
4. These Regulations come into force on the day on which they are published in the Canada Gazette, Part Ⅱ.
SCHEDULE
(Section 2)
PART 1
DESIGNATED PROVISIONS OF THE INTERNATIONAL BRIDGES AND TUNNELS ACT
Item |
Column 1 |
Column 2 |
Column 3 |
|---|---|---|---|
1. |
Section 6 |
25,000 |
3,000 |
2. |
Subsection 8(3) |
15,000 |
3,000 |
3. |
Subsection 23(1) |
15,000 |
3,000 |
4. |
Subsection 25(3) |
15,000 |
3,000 |
5. |
Subsection 38(1) |
25,000 |
5,000 |
6. |
Subsection 38(2) |
25,000 |
5,000 |
PART 2
DESIGNATED PROVISIONS OF THE INTERNATIONAL BRIDGES AND TUNNELS REGULATIONS
Item |
Column 1 |
Column 2 |
Column 3 |
|---|---|---|---|
7. |
Subsection 4(1) |
15,000 |
3,000 |
8. |
Subsection 4(2) |
15,000 |
3,000 |
9. |
Subsection 5(1) |
25,000 |
5,000 |
10. |
Subsection 5(2) |
25,000 |
5,000 |
11. |
Subsection 6(1) |
25,000 |
5,000 |
12. |
Subsection 6(2) |
25,000 |
5,000 |
13. |
Subsection 7(2) |
10,000 |
2,000 |
14. |
Section 8 |
25,000 |
5,000 |
15. |
Paragraph 9(1)(a) |
5,000 |
1,000 |
16. |
Paragraph 9(1)(b) |
10,000 |
2,000 |
17. |
Paragraph 9(1)(c) |
10,000 |
2,000 |
18. |
Paragraph 9(1)(d) |
15,000 |
3,000 |
19. |
Paragraph 9(1)(e) |
15,000 |
3,000 |
20. |
Paragraph 9(1)(f) |
15,000 |
3,000 |
21. |
Paragraph 9(1)(g) |
15,000 |
3,000 |
22. |
Paragraph 9(1)(h) |
15,000 |
3,000 |
23. |
Paragraph 9(1)(i) |
15,000 |
3,000 |
24. |
Subsection 9(2) |
25,000 |
5,000 |
25. |
Section 10 |
5,000 |
1,000 |
26. |
Section 11 |
5,000 |
1,000 |
27. |
Section 12 |
15,000 |
3,000 |
28. |
Subsection 13(1) |
25,000 |
5,000 |
29. |
Subsection 13(2) |
25,000 |
5,000 |
30. |
Subsection 14(1) |
15,000 |
3,000 |
31. |
Paragraph 14(2)(a) |
10,000 |
2,000 |
32. |
Paragraph 14(2)(b) |
10,000 |
2,000 |
33. |
Paragraph 15(a) |
10,000 |
2,000 |
34. |
Paragraph 15(b) |
10,000 |
2,000 |
35. |
Paragraph 15(c) |
10,000 |
2,000 |
36. |
Paragraph 15(d) |
10,000 |
2,000 |
37. |
Paragraph 15(e) |
10,000 |
2,000 |
38. |
Section 16 |
15,000 |
3,000 |
REGULATORY IMPACT
ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
Issue
Bridges and tunnels are essential components of the Canadian road network, particularly with respect to the trade and transportation of goods and services. Whenever such a structure fails, or its ability to carry the vehicle loads it was designed to carry is diminished, public safety is jeopardized, the efficiency of the transportation network is impaired, and the public is inconvenienced.
There are 34 international bridges and tunnels between Canada and the United States with various governance regimes (i.e. Crown corporations, joint authorities and private companies). Of these bridges and tunnels, 25 are vehicular crossings and 9 are railway crossings.
With the collapse of the De la Concorde overpass in Laval in 2006, and the collapse of the I-35 Bridge in Minneapolis in 2007, the public has looked to various levels of government to ensure the viability of these important elements of Canada’s transportation infrastructure. The International Bridges and Tunnels Act (the Act), adopted in 2007, gave the Government of Canada the ability to oversee the operation, maintenance, and security of these international bridges and tunnels.
In order for the Government of Canada to effectively perform this new oversight role, the International Bridges and Tunnels Regulations (the IBTRs) were introduced in February 2009, which established a consistent approach for reporting on the maintenance and operation of these structures. The Act also established an administrative monetary penalty system for compliance and enforcement of the Act and associated regulations. Now, following their initial publication as a proposal in the Canada Gazette, Part Ⅰ, on January 29, 2011, the Government of Canada is introducing the Administrative Monetary Penalties Regulations (International Bridges and Tunnels) [the Regulations], which establish monetary fines for contravening various provisions in the Act and the IBTRs.
Objectives
The Regulations are expected to offer time-efficient and effective compliance tools for the majority of the provisions of the Act and associated regulations. The objective of the Act is to provide for the appropriate regulatory oversight over international bridges and tunnels, aiming to ensure that these bridges and tunnels are safe, maintained to maximize their long-term viability and operated in a manner to facilitate the flow of goods and people across the border.
The Act establishes a process which entitles persons who would be subject to a monetary fine under the Regulations to a fair hearing before the Transportation Appeal Tribunal of Canada. The Tribunal or any of its members would adjudicate disputes relative to the administrative monetary penalties.
The Tribunal is an independent, quasi-judicial body that was established in 2001 under the Transportation Appeal Tribunal of Canada Act. The Tribunal, in accordance with subsection 2(3) of the Transportation Appeal Tribunal of Canada Act, has jurisdiction in respect of reviews and appeals in connection with administrative monetary penalties provided for under sections 177 to 181 of the Canada Transportation Act, sections 43 to 55 of the International Bridges and Tunnels Act and sections 129.01 to 129.19 of the Canada Marine Act. Therefore, the Tribunal is responsible for hearing requests for reviews and appeals stemming from the Regulations.
Description
The Act, which came into force on April 25, 2007, authorizes the Governor in Council to make regulations on the recommendation of the Minister of Transport. The IBTRs, which deal with the maintenance and repair, and the operation and use of international bridges and tunnels, came into effect on February 18, 2009.
Section 43 of the Act authorizes the Minister of Transport to make regulations designating certain provisions, of the Act or its regulations, the contravention of which may be proceeded with as a violation in accordance with sections 45 to 55, as well as regulations prescribing the maximum amount payable for each such violation. These Regulations are a result of this authority in section 43.
Monetary penalties can only be applied to a contravention of one of the “designated provisions” listed in the Regulations. Where there has been a violation of such a provision, the person designated by the Minister of Transport decides on the amount of the fine to be charged (not to exceed the maximum amount provided for in the Regulations). Before sending a notice of violation to an alleged offender, the person designated by the Minister may enter into discussion with the person that appears to have violated a designated provision to try to have them comply with the provision. If this attempt is unsuccessful, the designated person has the authority to issue a notice of violation, identifying the violation and the monetary penalty, including the details concerning the timeframe for payment and how the payment can be made. If the payment is made as specified, there would be no further proceedings under the Act with respect to that contravention. However, if the alleged offender objects to the notice of violation, they have the right to request a review by the Transportation Appeal Tribunal of Canada of the alleged contravention or of the amount of the penalty.
If the monetary penalty is not paid within the time specified in the notice and the person subject to the notice of violation does not file a request for review by the Tribunal, the person would be deemed to have committed the contravention alleged in the notice of violation and the Minister of Transport could obtain, from the Tribunal, a certificate confirming the amount of the penalty to be paid.
If the person subject to the notice of violation requests a review within the time specified in the notice, a member of the Tribunal will review the case and render a decision. Both the person subject to the notice of violation and the Minister would be informed of any decision issued. If a member of the Tribunal determines that there has been no violation, no further proceedings under the Act can be taken against the person unless the Minister appeals the decision of the member of the Tribunal. If the member of the Tribunal confirms that there has been a contravention, it would establish the penalty to be paid, which could be the same as previously established in the notice of violation or a different amount (not to exceed the maximum amount prescribed in the Regulations). The person subject to the notice of violation could then appeal the decision of the Tribunal member to the Tribunal.
Rationale
On November 23, 2006, the Government of Canada presented Advantage Canada, (see footnote 1) a forward-looking plan. It recognized that for Canada — a trade-dependent nation — to remain competitive, it must create world-class infrastructure that ensures the seamless flow of people, goods and services across its roads and bridges, through its ports and gateways, and via its public transit.
While the Regulations are not expected to have a direct or immediate impact on safety and security, such a tool would assist the Government of Canada in promoting compliance with the reporting requirements of the IBTRs, which would in turn provide for a better understanding of the operation and viability of these crossings. It would also help the Government of Canada to be in a better position to support the enhancement of the long-term safety and security of international bridges and tunnels.
An administrative penalty scheme is considered, in most instances, preferable to offence proceedings, as it is typically more expedient and economical. The Regulations establish such a scheme. Other than offence proceedings and administrative monetary penalties, other alternatives exist to address non-compliance with the Act, such as having the Minister enter into an assurance of compliance agreement with the individual or corporation. Assurances of compliance are written agreements under which the individuals or corporations acknowledge that there has been a contravention and undertake the necessary steps to bring themselves into compliance within a specific period of time.
In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, and the Transport Canada Policy Statement on Strategic Environmental Assessment, the strategic environmental assessment (SEA) process was followed for these Regulations and a preliminary scan was completed. The preliminary scan concluded that these Regulations are not likely to have environmental effects. Furthermore, as there is no change in administrative costs to business, the “One-for-One” Rule does not apply to these Regulations, and the “small business lens” does not apply either, as there are no impacts on small business.
Consultation
In developing the IBTRs, Transport Canada officials consulted stakeholders regularly, including owners, operators, and affected provinces, as well as federal authorities of the United States.
When the Act was adopted, two separate workshops were held to engage stakeholders in discussions on the nature and extent of regulations that would be developed. Most stakeholders attended, including international bridge and tunnel owners and operators, provincial government officials, other federal department and agency officials, federal officials from the United States and some bordering states’ departments of transportation (e.g. Michigan, Minnesota).
The discussions at the workshops were helpful in the development of a regulatory framework that would satisfy the Government of Canada’s objectives while not interfering in the day-to-day operation of the crossings. The Regulations support the uninterrupted flow of goods and people across the border and ensure that the crossings are operated and maintained in a safe and efficient manner.
During the workshops, Transport Canada officials highlighted that the Regulations were being considered and that they could be published in the Canada Gazette, Part Ⅰ, in 2009. It was explained that the intent was to encourage compliance with the IBTRs and the various provisions of the Act.
Details on the development of the Regulations were also included in the “Implementation, enforcement and service standards” section of the Regulatory Impact Analysis Statement of the regulatory proposal for the IBTRs, published in the Canada Gazette, Part Ⅰ, as well as in that section of the final publication in the Canada Gazette, Part Ⅱ, on February 18, 2009.
Following the publication of the proposal for these Regulations on January 29, 2011, comments were received from only one stakeholder. The Canadian Transit Company commented that from their point of view, the Regulations were targeted solely at them. They also stated that they are of the opinion that they are not subject to the provisions of the Act, or any other instrument stemming from the Act. They were reminded that the Act, like the Regulations, applies to all bridge or tunnel crossings between Canada and the United States, and therefore the Act, like the Regulations, does apply to the Ambassador Bridge, (see footnote 2) as well as to any other international bridges or tunnels.
Implementation, enforcement and service standards
Sections 38 to 42 of the Act lay out the enforcement framework when there is a contravention of the Act. Furthermore, section 43 provides for the contravention regime, which gives the Minister of Transport the power to designate provisions that, when contravened, could subject any person that is not in compliance with a designated provision, to the penalties and procedures referred to in sections 45 to 55 of the Act. Section 43 also stipulates that the maximum amount payable shall not exceed $5,000 in the case of an individual and $25,000 in the case of a corporation. Furthermore, an incremental approach would be used for the enforcement of the Act and the IBTRs, meaning that the amounts of penalty would increase from a first violation, a second violation and subsequent violations. The amount of penalty for a third and subsequent violation would be the maximum specified for violations as set out in the schedule.
If a person served with a notice of violation does not pay the fine within the time specified in the notice, and no request for review is received by the Tribunal, the person would be deemed to have committed the contravention identified in the notice and the Tribunal would then be asked to issue a certificate that would indicate the amount payable. This certificate for a default of payment would then be registered through the clerk of a competent court. Additional costs for registration could also be added to the amount.
The Regulations are expected to promote compliance with the IBTRs as well as the Act. This would help improve governance and accountability of key transportation infrastructure. The receipt of reports, required under the IBTRs, is expected to result in verification that safety and security standards are being applied consistently and would help in the assurance that these international crossings are operated and maintained in accordance with government objectives.
Contact
For further information, please contact
Jay Rieger, ing.
Rail Safety Directorate
Transport Canada
427 Laurier Avenue W
Ottawa, Ontario
K1A 0N5
Telephone: 613-990-7135
Fax: 613-990-2920
Email: jay.rieger@tc.gc.ca
Footnote a
S.C. 2007, c. 1
Footnote 1
Transport Canada’s 2007–2008 Estimates Report on Plans and Priorities
Footnote 2
Bridge over the Detroit River, connecting Windsor, Ontario, in Canada to Detroit, Michigan, in the United States.