Consultation on the Railways and Other Guided Transport Systems (Miscellaneous Amendments) Regulations July 2012 Contents Foreword 4 Executive summary 5 1. Introduction 7 Implementation of the revised Railway Safety Directive 7 The first stage of implementation 7 The second stage of implementation 7 The consultation 8 2. Background to the revised Railway Safety Directive 9 European Common Transport Policy 9 Purpose of the revised Railway Safety Directive 9 Desired outcome of implementing the revised Railway Safety Directive 10 Scope of the revised Railway Safety Directive 10 Overview of proposals for the United Kingdom 10 3. Certification of entities in charge of maintenance of freight wagons 12 ECM certificate 12 ECM Accreditation Scheme 12 Certification body 13 Assessment of applications for ECM certificates 14 4. Proposals for Regulations giving effect to the ECM Regulation 15 Introduction 15 Citation, commencement and interpretation 15 Amendments to the Health and Safety (Enforcing Authority for Railways and Other Guided Transport Systems) Regulations 2006 15 Amendments to the Railways and Other Guided Transport Systems (Safety) Regulations 2006 (“ROGS”) 16 Amendments to the Train Driving Licences and Certificates Regulations 2010 25 Statutory review of EARR and TDLCR 25 5. Impact assessment 26 6. Summary of questions 27 7. How to respond 28 The consultation 28 Office of Rail Regulation | October 2012 | Consultation on the Miscellaneous Amendments Regulations 2 1475740 Responses 28 Next steps 28 8. List of those consulted 29 9. Glossary of terms 39 Annex A: ECM Regulation 445/2011 Annex B: Draft Regulations Annex C: ROGS consolidated with proposed amendments Annex D: European Directive 2008/110/EC Annex E: List of exclusions from the mainline railway Annex F: Application for removal from scope Annex G: Impact assessment Annex H: Government Code of Practice Office of Rail Regulation | October 2012 | Consultation on the Miscellaneous Amendments Regulations 3 1475740 Foreword The Office of Rail Regulation (“ORR”) has a duty to the Secretary of State under paragraph 2(5) of Schedule 3 of the Railways Act 2005 to submit from time to time such proposals, as ORR considers appropriate, for the making of Regulations for railway safety purposes. The Secretary of State has agreed a protocol between the Department for Transport and ORR with a view to ORR preparing draft Regulations for these purposes, which are then submitted to the Secretary of State for approval and making. This consultation proposes draft Regulations that give effect in Great Britain to Commission Regulation 445/2011 in Great Britain. The Commission Regulation sets out a system of certification of entities in charge of maintenance of freight wagons. As well as giving effect to the Commission Regulation, ORR has taken the opportunity to propose some better regulation amendments to the existing safety regime and clarify some of the definitions used in the Railways and Other Guided Transport Systems (Safety) Regulations 2006. The proposed draft Regulations aim to bring the certification regime for entities in charge of maintenance within the scope of ORR’s existing enforcement remit, remove some regulatory overlap and reduce administrative burdens on some duty holders. I hope that all interested parties will contribute their views on these proposals over the coming months. We look forward to hearing from you. Ian Prosser, Director of Railway Safety 30 July 2012 Office of Rail Regulation | October 2012 | Consultation on the Miscellaneous Amendments Regulations 4 1475740 Executive summary Certification of entities in charge of maintenance of freight wagons This consultation document sets out proposals for introducing the certification regime for entities in charge of maintenance (“ECMs”) of freight wagons required under European Directive 2008/110/EC (“the revised Railway Safety Directive”) in Great Britain. The revised Railway Safety Directive, which amends the Railway Safety Directive (2004/49/EC), requires that an ECM for freight wagons obtains a certificate from a certification body to show that it has a satisfactory system of maintenance. The Office of Rail Regulation (“ORR”) will initially be a certification body for ECMs. An ECM certificate will provide assurance to railway undertakings that an ECM is able to safely maintain the freight wagons for which it has responsibility. The European Commission adopted Regulation 445/2011 on a system of certification of ECMs for freight wagons (“the ECM Regulation”) on 10 May 2011 (Annex A) and ORR has developed draft regulations (Annex B) to give effect to the ECM Regulation in Great Britain and bring the enforcement of it in line with ORR’s existing enforcement remit. The draft Regulations include amendments to the Railways and Other Guided Transport Systems (Safety) Regulations 2006 (“ROGS”) (S.I. 2006/599) to require ECMs for freight wagons to obtain an ECM certificate from a certification body. They also provide an appeal mechanism if applicants for ECM certificates are unhappy about the decision of a certification body. ORR has also taken the opportunity to consider the current legislative framework in light of lessons learned from operating under the current regime and other changes in European provisions. Accordingly, the draft regulations also contain the following additional amendments: Changes to the Health and Safety (Enforcing Authority for Railways and Other Guided Transport Systems) Regulations 2006 (“EARR”) (S.I. 2006/557 as amended by S.I. 2008/2323) Extending the powers of ORR inspectors to give them jurisdiction to enter, and undertake enforcement in certain premises that are currently excluded from their remit (such as warehouses and factories). This amendment ensures that ORR inspectors have the necessary powers to inspect and enforce, on railway operational matters only, in premises where an ECM may have maintenance facilities. Changes to ROGS Removing the current requirement for mainline operators to carry out safety verification in light of the introduction of the common safety method (“CSM”) on risk evaluation and assessment (Commission Regulation 352/2009). This will avoid duplication by removing the need for mainline duty holders to carry out the existing safety verification requirements in ROGS as well as applying the CSM on risk evaluation and assessment. Office of Rail Regulation | October 2012 | Consultation on the Miscellaneous Amendments Regulations 5 1475740 Amending the definition of “mainline railway” in ROGS to clarify what systems are within scope and ensure that operators of heritage and light rail systems can be excluded from the requirements applicable to mainline operators where appropriate. ORR proposes to maintain an Approved List of exclusions (Annex E), which will be published on ORR’s website. Other proposed changes to ROGS include: • removing the requirement for non-mainline operators to send annual safety reports to ORR thereby reducing their administrative burden; • clarifying that controllers of ‘safety-critical work’ must have suitable and sufficient monitoring arrangements in place; • ensuring that the 28-day ‘affected parties’ consultation period runs concurrently with ORR’s four month processing time for applications for safety certificates and safety authorisations, thereby reducing the time taken for applicants to receive a safety certificate or safety authorisation; and • amending the definitions of “national safety rules” and “placed in service” to clarify their meaning. Changes to the Train Driving Licences and Certificates Regulations 2010 The draft Regulations also contain proposals to amend the Train Driving Licences and Certificates Regulations 2010 (“TDLCR”) (S.I. 2010/724) to clarify the meaning of “in code form” in relation to medical restrictions in train driving licences and reflect the changes made to the definition of “mainline railway” in ROGS. Office of Rail Regulation | October 2012 | Consultation on the Miscellaneous Amendments Regulations 6 1475740 1. Introduction Implementation of the revised Railway Safety Directive 1.1 This consultation document sets out proposals for introducing the certification regime for entities in charge of maintenance (“ECM”) of freight wagons required under European Directive 2008/110/EC (“the revised Railway Safety Directive”) in Great Britain. The revised Railway Safety Directive, which amends the Railway Safety Directive (2004/49/EC), requires that an ECM for freight wagons obtains a certificate from a certification body to show that it has a satisfactory system of maintenance. 1.2 The revised Railway Safety Directive aims to improve market opening and to develop and improve safety on the European Union’s railways. It requires that an ECM is assigned to a vehicle and registered in the National Vehicle Register (“NVR”) before the vehicle is placed in service or used on the network. These provisions are already in place but it is necessary to make further amendments to recognise the provisions of European Regulation 445/2011 (“the ECM Regulation”) (Annex A), which sets out a certification system for ECMs for freight wagons. 1.3 Since the ECM Regulation was only published in May 2011, it has been necessary for the UK to have a two-stage implementation plan to transpose the requirements of the revised Railway Safety Directive and give effect to the ECM Regulation. The approach, which is explained in more detail below, is in accordance with UK law-making practice and prevents subsidiarity issues by not sub-delegating