Railway Safety Legislation Update

Transcription

1 Railway Safety Legislation Update Issue 77: November 2015 Author: Andy Bain Safety Management System Specialist RSSB 1

2 Foreword This Safety Legislation Update has been compiled by RSSB following consideration by the Railway Safety Legislation Committee. Its aim is to identify emerging and revised health and safety legislation and supporting documents, which may affect the members of the railway industry. The update is not a definitive list of legislation and only represents the knowledge available at the time of going to print. The update is revised quarterly. How to use this update The Legislation implementation and update status table This provides details on the proposed implementation dates of the new or updated legislation contained in this update together with a column showing whether the entry has been updated or is new to this issue. Entries and updates New entries to the update are identified as such in their titles Significant changes to entries since the previous issue have been identified with a border Each entry is dated at the end with the month that the entry was last updated Entries in the update are deleted once they become law or soon after In sub-sections that cover several topics the UK position may be shown with shading Key dates are shown in red Railway Safety Legislation Update - Governance The Data and Risk Strategy Group (DRSG) is the governance group for the Railway Safety Legislation Update. The DRSG will: Alert RSSB members to actual and potential changes to safety-related legislation likely to impact on their operations or business Seek to influence and respond in such a way as to ensure that RSSB members interests are recognised, promoted and protected Disseminate early indications and subsequent information regarding legislative proposals that concern operational or occupational safety, their management or reporting. This includes European, UK national and rail industry specific legislation 2

3 Identify and consider the implications of proposals for the GB rail industry. Inform and/or review RSSB activity in promoting or protecting its members interests by seeking to influence and/or respond to those proposals. 1 This may include preparing and making available to members template responses to formal consultations Where appropriate set up working parties or authorise the engagement of specialists to assist in meeting the above objectives Approve the text of the quarterly Railway Safety Legislation Update. 1 The position adopted by RSSB will be in the interests of overall safety in the industry but should not be seen as necessarily representing the views of all individual members. 3

4 Contents Foreword 2 How to use this update 2 Railway Safety Legislation Update - Governance 2 Contents 4 Abbreviations and acronyms 6 Related websites 7 Legislation implementation and update status 8 Railway Interoperability Directive 2008/57/EC Technical Specifications for Interoperability (TSIs) Scope extended and revision made 8 Consultation on the implementation of Directive 2013/35/EU on the minimum health and safety requirements regarding the exposure of workers to the risks arising from physical agents - electromagnetic fields (EMF) 9 Section 1: Railway-specific legislation 10 Railway Safety Directives (2004/49/EC and 2014/88/EU) Common Safety Indicators and Common Safety Targets 10 Common Safety Method on risk evaluation and assessment 13 Common Safety Methods for conformity assessment, monitoring and supervision 17 The Fourth Railway Package 21 EC Regulation EU/445/2011 (The Entities in Charge of Maintenance Regulation) 27 Train Driving Licences and Certificates Regulations 2010 and changes to the Train Driving Licences Directive 29 ERA Joint Network Secretariat/ Quick response procedure (now known as JNS urgent procedure) 33 Background 33 Railway Interoperability Directive 2008/57/EC Technical Specifications for Interoperability (TSIs) Scope extended and revision made 35 Section 2: General legislation 38 4

5 COMAH Regulations 2015 and draft legal guidance 38 HSE s Review of Approved Codes of Practice 39 Construction (Design and Management) Regulations Exempting from health and safety law those self-employed whose work activities pose no potential risk of harm to others excluding railway activities 42 The Health and Safety (Safety Signs and Signals) Regulations Guidance on Regulations L64 44 Design standards for accessible railway stations: a code of practice by the Department for Transport and Transport Scotland 45 Section 3: Railway-related consultations 46 Consultation on the implementation of Directive 2013/35/EU on the minimum health and safety requirements regarding the exposure of workers to the risks arising from physical agents - electromagnetic fields (EMF) 47 Consultation on the proposal to withdraw the Railway Safety (Miscellaneous Provisions) Regulations 1997, Railway Safety Regulations 1999 and Railway Safety (Miscellaneous Amendments) Regulations Section 4: News 51 News 51 Court cases 61 5

6 Abbreviations and acronyms ACOP Approved Code of Practice ACSH Advisory Committee on Safety and Health at Work ATOC Association of Train Operating Companies CER Community of European Railways CSI Common Safety Indicator CSM Common Safety Method CST Common Safety Target DfT Department for Transport DRSG Data Risk Strategy Group ECM Entity in charge of maintenance EMF Electro-magnetic fields ERA European Railway Agency HSE Health and Safety Executive HSWA Health and Safety at Work Act IAB Impact Assessment Board ICNIRP International Commission on Non-Ionising Radiation Protection IM Infrastructure manager MoJ Ministry of Justice MS Member State NSA National Safety Authority NSR National Safety Rule NRV National Reference Value NTR National Technical Rule ORR Office of Rail Regulation RE&A Risk Evaluation and Assessment RIDDOR Reporting of injuries, diseases and dangerous occurrences Regulations 1995 RISC Railway Interoperability and Safety Committee ROGS Railways and Other Guided Transport Systems (Safety) Regulations RSD Railway Safety Directive RSSB Rail Safety and Standards Board RU Railway undertaking SPWG Safety Performance Working Group SSRG System Safety Risk Group TEN Trans-European Network TSI Technical Specification for Interoperability UIC International Union of Railways 6

7 Related websites Association of Train Operating Companies (ATOC) Business Innovation Skills (BIS) Department for Communities and Local Government (DCLG) Department for Environment, Food and Rural Affairs (DEFRA) Department for Transport (DfT) EUR-Lex European Commission (EC) European Railway Agency (ERA) Government News Network Health and Safety Executive (HSE) Law Commission legislation.gov.uk, managed by The National Archives Network Rail Office of Rail and Road (ORR) The Rail Accident Investigation Branch (RAIB) RSSB Scottish Law Commission International Union of Railways (UIC) Ministry of Justice 7

8 Legislation implementation and update status Legislation Implementation date Updated in this issue? Section 1: Railway-specific legislation Railway Safety Directives (2004/49/EC and 2014/88/EU) Common Safety Indicators and Common Safety Targets Regulation on the Common Safety Methods Risk Assessment and Evaluation Regulations on the Common Safety Methods Conformity Assessment and Monitoring and Supervision 2 nd set of CSTs introduced Apr 2011 New CSIs introduced July 2014 July 2012 May and August 2015 January 2011 and June 2013 The Fourth Railway Package January 2019 Yes EC Regulation EU/445/2011 (the Entities in Charge of Maintenance Regulation) Train Driving Licences and Certificates Regulations 2010 and changes to the Train Driving Licences Directive ERA Joint Network Secretariat/ Quick response procedure (now known as JNS urgent procedure) Railway Interoperability Directive 2008/57/EC Technical Specifications for Interoperability (TSIs) Scope extended and revision made Section 2: General legislation COMAH Regulations 2015 and draft legal guidance May 2011 May 2013 October 2018 Not applicable July 2015 June 2015 HSE s Review of Approved Codes of Practice Not applicable No Construction (Design and Management) Regulations 2015 Exempting from Health and safety law those Self-employed whose work activities pose no potential risk of harm to others The Health and Safety (Safety Signs and Signals) Regulations Guidance on Regulations L64 Yes Yes Yes Yes Yes Yes Yes No 6 April 2015 yes Unknown Not applicable yes No Design standards for accessible railway stations: Already applies No 8

9 a code of practice by the Department for Transport and Transport Scotland Section 3: Other railway-related consultations Consultation on the implementation of Directive 2013/35/EU on the minimum health and safety requirements regarding the exposure of workers to the risks arising from physical agents - electromagnetic fields (EMF) Consultation on the proposal to withdraw the Railway Safety (Miscellaneous Provisions) Regulations 1997, Railway Safety Regulations 1999 and Railway Safety (Miscellaneous Amendments) Regulations 2001 Unknown Unknown Yes Yes 9

10 Section 1: Railway-specific legislation Railway Safety Directives (2004/49/EC and 2014/88/EU) Common Safety Indicators and Common Safety Targets Background The Railway Safety Directive (2004/49/EC) requires that ERA sets Common Safety Targets (CST) for each member state. Member states are required to provide Common Safety Indicators (CSI) data to ERA on an annual basis (as per Annex 1 of the Safety Directive). Main provisions Previous versions of the RSLU have included detailed background information and the main provisions on the following, relating to Railway Safety Directives: For detailed descriptions: Common Safety Indicators Common Safety Targets and Common Safety Indicators UNECE expert group on level crossing safety Common occurrence reporting National Safety Rules ERA Railway Indicators See section 1 of issue 76 of the Railway Safety Legislation Update for the latest version of this detailed background information: 10

11 Current status Common Safety Targets ERA has circulated the 2014 report template to NSAs. There are no significant differences to the 2013 template. The completed report was submitted to ERA by the 30 September 2015 deadline. ERA has published a draft proposal for the revision of the assessment method for CSTs with the purpose of addressing the weaknesses of the current method and of the general concept. The expected outcomes are: Obtain more reliable and robust results of the assessment early enough in the year Integrate the actions foreseen in the CSM with the other RSD requirements (including NSA annual safety report and National safety plans) Introduce tangible safety targets linked with the national safety plans and other activities that are not subject to the enforcement regime for achieving at least the NRVs Motivate MSs to embrace the method and encourage them to apply it at the national level Include safety targets for the EU given the continuous development of the single European railway area. ERA was planning to issue a recommendation regarding the CSM-CST revision by the end of June However, given that the new Railway Safety Directive was not yet adopted in the framework of the 4 th Railway Package, the ERA mandate for the work on the revision has been extended for an undefined period. Partly based on the CSTs, ERA is putting together a programme of work to target priority countries with the aim of reducing risk levels. The assessment and what action ERA should take will also be based on evaluation of the transposition of the directives, findings from the cross audits, NIB assessment and matrix evaluation. Common Safety Indicators ERA has agreed to a voluntary approach for reporting 2014 CSIs using the new annex 1. NSAs will report 2015 CSI data using the new indicators i.e. RUs and IMs will need to use the new CSIs when reporting 2015 data to NSAs (and then NSAs to ERA) in Previous CSI and CST working groups have been merged to form a combined working party called the Safety Performance Working Party (SPWP). ERA believes that SPWP has completed the main tasks for which it was set up. They are proposing that future work should be taken forward by smaller correspondence groups rather than full meetings of the working party. 11

12 UNECE expert group on level crossing safety A new working group considering level crossing safety from both a rail and road perspective has been established under the umbrella of United Nations Economic Commission for Europe (UNECE). UIC, NSAs (including ORR) and the ERA is a part of the group. The group is preparing an action plan for improving level crossing safety uniting both road and rail infrastructure managers. Common occurrence reporting A common EU approach to occurrence reporting and analysis has been in place in both aviation and maritime for several years. ERA is exploring whether a similar system would be possible for railways. Occurrence reporting is seen as taking a system-wide and data-driven approach to accident prevention. Aligning changes to SMIS with this work wherever possible will be useful for the UK. Workshops were held by ERA in Valenciennes on 28 October (suicides) and 29 October (common occurrence reporting). The following questions were considered among others at the second of these workshops: What is the impact of requirements on occurrence reporting in the 4 th railway package legislation? What are the most appropriate tools to enhance common reporting on occurrences across the EU? ERA Railway Indicators ERA has developed a series of metrics (Railway Indicators) that they are using to measure performance in delivering ERA-related activity. The railway indicators are divided into 4 operational activity areas: ERA has now started collecting data for the pilot phase (year 1) of the Railway Indicators. The indicators will be reviewed in 2016 to see how well they are functioning and what adjustments should be made. Date updated October

13 Common Safety Method on risk evaluation and assessment Background The Railway Safety Directive (2004/49/EC) requires that a series of Common Safety Methods (CSMs) are developed by the ERA to describe how safety levels, achievement of safety targets and compliance with other safety requirements are assessed in the different member states. Main Provisions Previous versions of the RSLU have included detailed background information and the main provisions on the following, relating to the CSM on risk evaluation and assessment: Original Regulation Revised Regulation Risk acceptance criteria for technical systems CSM Design Targets Article 12 Assessment Bodies for domestic only changes RAC for transport of dangerous goods DV29bis Revised Railway Interoperability Directive Annexes V and VI See section 1 of issue 76 of the Railway Safety Legislation Update for the latest version of this detailed background information: Current status Revised regulation The revised CSM RA has been in force since 23 May 2013 and applied from 21 May 2015 (meaning that it must be used from that date). The principal amendments relate to the recognition and accreditation of Assessment Bodies. The revised Regulation can be found here: Further changes to CSM Regulation were agreed at RISC in June 2015 and ERA is preparing guidance to accompany the revised regulation. 13

14 ERA guidance on accreditation and recognition of assessment bodies is now available on its website: The guidance supports the UK position that for purely domestic change then a company may use its own assessment body subject to the usual tests of impartiality, independence, competence etc, this also includes subcontracting to others where required. Such bodies need to be recognised by the National Safety Authority (the ORR), this may be done through the Safety Certification process and the management of change section of the company SMS. ORR guidance will be amended in due course. Risk acceptance criteria for technical systems As the harmonised risk acceptance criteria (previously known as CSM RAC) are targets used at the design stage of technical systems, to avoid confusion, the terminology was changed to CSM Design Targets (CSM-DT). CSM Design Targets Revisions to the regulations were agreed at RISC on 4 June 2015: a functional failure rate for all catastrophic train accidents of 10-9 ; Incidents with the potential for single fatalities would be A table of functions would give examples of each. CER, UIC and EIM have strongly supported the inclusion of design targets in the RAC-TS. The sector bodies have also worked together to draft guidance for the RAC-TS, which is now available as draft ERA guidance. At RISC, it was agreed that ERA would continue working on the guidance with the sector and NSAs. A taskforce is expected to be setup. Details have been circulated by DfT via its newsflash s of the revisions to the CSM. Article 12- Assessment Bodies for domestic only changes. Consultation is underway by ERA on the role and competences of assessment bodies. One issue concerns the potential use of this article, which applies where changes do not require mutual acceptance, the change is purely domestic and would have no impact on the wider EU market. The UK position is that we would wish to retain the option of using internal independent competent assessment bodies recognised by ORR under our SMS as laid out under safety certification or authorisation. RAC for transport of dangerous goods The Commission is holding a series of 11 workshops covering the transport of dangerous goods by road, rail, inland waterways and pipelines. The workshops were established following the recommendation of an EC-commissioned study by Det Norske Veritas Ltd on the development of harmonised RAC for the transport of dangerous goods. ERA is 14

15 working with UNECE and OTIF to development a risk based approach to the management of dangerous goods transport. The most recent workshop was held on 9-11 June, DfT represented the UK. No agreement has yet been reached over whether a stand-alone dangerous goods database should be developed or whether this can be incorporated into existing databases. The principle difference of opinion is between those who believed that, since the DG database is intended to be multimodal (covering road, rail and inland waterway transport), and on an international level, it has to be stand-alone, whilst others felt this would be duplication of effort given current domestic arrangements. UIC, AEGPL and the French member state presented some principles for a potential central database and suggestions for fields, although ERA are not ready to develop anything tangible at this stage. DV29bis The ERA has published a helpful update on the new process known as DV29bis which may be obtained from: DV 29bis Key Principles.pdf This concerns the authorisation of structural subsystems and vehicles under the Railway Interoperability Directive (2008/57/EC). This document essentially ties up the interoperability management of change requirements with CSM RA requirements. CSM Risk Evaluation and Assessment - Amended The CSM for risk evaluation and assessment has been further amended with virtually immediate effect. The publication of the Commission Implementing regulation (EU) 2015/1136 amending the earlier Implementing regulation (EU) No. 402/2013, often referred to as the CSM Risk Assessment, sets out harmonised design targets for technical systems which should help with mutual recognition of those systems across the EU. The CSM-RA originally contained a single, harmonised, risk acceptance criterion for catastrophic failures of technical systems which deemed that demonstrable failure rates of no greater than 10-9 per operating hour were acceptable. This limitation is addressed by the new Regulation, which came into force on 3 August 2015, through the extension of risk acceptance criteria to other, non-catastrophic, accidents so that a wider range of functional failures can be assessed. It will be followed by revised ORR and ERA guidance which are currently in draft. The existing ORR guidance on CSM RA to reflect the previous changes to this Regulation 402/2013, and dated March 2015, remains available. That revision includes feedback from several industry parties, including the ATOC, and has resulted in clearer processes to identify when the CSM trigger point for significance applies. Additionally information relating to Assessment Bodies, and their recognition for non-mutually accepted (domestic only) changes has been expanded. Copies may be downloaded from: 15

16 data/assets/pdf_file/0006/3867/common_safety_method_guidanc e.pdf Roles and Responsibilities of independent Assessment Bodies (ABs). The following text for domestic changes has been agreed in the revised regulation: Where the risk assessment for a significant change is not to be mutually recognised, the proposer shall appoint an assessment body meeting at least the competency, independence and impartiality requirements of paragraph 1 of Annex II. The other requirements of Annex II may be relaxed in agreement with the NSA in a nondiscriminatory way. ERA are questioning the need for this article. If it was dispensed with, all projects would need an accredited or recognised assessment body. Following informal consultation with industry colleagues, ORR will defend the Article. RSSB has started a 12 month review of its 6 Railway Guidance Notes covering the CSM RA. The updated versions will take account of experience in application of CSM RA and wider industry consultation and this new suite of guidance is due to be ready for publication towards the end of Date updated October

17 Common Safety Methods for conformity assessment, monitoring and supervision Background The Railway Safety Directive (2004/49/EC) requires that a series of Common Safety Methods (CSMs) are developed by the ERA to describe how safety levels, achievement of safety targets and compliance with other safety requirements are assessed in the different member states. The EC has issued a mandate to ERA for the revision of the CSM for conformity assessment and CSM for supervision with the aim of further harmonising approaches among Member States. Main provisions Previous versions of the RSLU have included detailed background information and the main provisions on the following, relating to the CSMs: Conformity Assessment Monitoring and Supervision See section 1 of issue 76 of the Railway Safety Legislation Update for the latest version of this detailed background information: Current status Revision of the CSMs for conformity assessment The revision of the CSMs for conformity assessment shall be considered in relation to the introduction of ECMs for freight wagons, CSIs, CSTs, other common safety methods, technical specifications for interoperability (TSIs) as well as existing European standards. The revision will also take account of the proposed move to a single safety certificate. At a working party on 4 May 2015, ERA annouced its intention to produce a light impact assessment. UK comments that the assessment should be broken down to relfect the different workstreams and to provide a better measure of impacts on different groups (particular ly smaller operators) were accepted. The introduction of the revised TSI OPE (expected in 2017) will affect what is looked for in a Part B safety certificate. In light of this, ERA has identified four areas for review technical compatibility, train planning, competence and monitoring and review to help 17

18 determine what evidence would be needed for assessment without duplicating what is required for Part A or what is covered by the TSI OPE. NSAs were expected to have provided a gap analysis of the TSI OPE and national safety rules that are not covered by 14 October 2015 in time for the meeting on national requirements on 28 October ERA held a workshop with attendees from NSAs and the sector on 30 June ERA agreed to adopt ISO HLS. A revised working paper was prepared for the meeting on 18 September. It was agreed by participants that there should be a single criterion and the text proposed by ERA would be reviewed by CER and EMI. ERA also confirmed a desire to harmonise ECM and CSM CA legal requirements. A proposal on operational planning will have further discussion with CER/EIM. Impact assessment interviews between ERA and NSA/sector organisations are planned for December 2015, with follow-ups in June 2016 EIM, CER and some NSAs stressed their preference for any criteria changes to be minimal and subject to reported benefits. The EC has included the recommendation to introduce single safety certification i.e. no separation part A/part B application in the 4 th Railway Package. A report and final recommendation to the Commission are expected by July 2016, this means that any revision is unlikely to be in force at the earliest in ERA does not envisage a fundamental recast of the CSMs, rather an enhancement which would link conformity assessment more closely to a duty holder s SMS. They also see it as an opportunity to deal with some practical issues about conformity assessment which were not harmonised or were unresolved. The project has been structured around four themes: Safety certification and authorisation Supervision Decision making Competence management The first working party meeting was on 12 November ERA held a workshop on 9 December 2014 (to coincide with NSA Network) to address issues around safety certification when an RU subcontracts traction and staff from another RU. ERA has a legal view from the EC, that in such circumstances it is not acceptable for the RU to operate under the safety certificate of the incumbent RU and it needs to have a 18

19 safety certificate itself. A number of NSAs have objected to this view as they claim that it would have a serious impact on railway operations in their country and would not benefit safety. ERA has published guidance on issuing safety certificates which is intended to address ongoing issues where there is a lack of harmonization. The main concern among NSAs is in relation to part B certificates for cross-border services. ERA has confirmed guidance will need to be revised to reflect the recast Safety Directive. NSAs are content that the proposals are highlighting the safety-relevant part of the operations to be checked by the NSAs. The Human Factors Network is preparing proposals for some criteria that will be complemented by guidance. CSM for supervision ORR is exploring how to meet the provisions of article 9 for the supervision of RUs operating between the UK and other member states, namely France, Belgium and the Netherlands. A meeting was held with representatives from FR, BE and NL NSAs in January 2015 to discuss individual supervision strategies and how to coordinate supervision activities for cross border operators. Eurostar held a safety conference for its workforce in 17 June. ERA is planning to replace the existing guidance on supervision which would include risks and maturity models. CSM for monitoring ERA has published a guide to the CSM for monitoring regulations SAF_Guide%20on%20CSM%20for%20monitoring%20V1.0%20Published.pdf The guide covers monitoring activities, strategy, priorities and plan(s) that need to be adapted to the specific activities of every actor who is concerned by the regulations. RSSB has published safety assurance guidance for industry and this covers the requirements of the CSM for monitoring: Railway industry position Revision of the CSMs for Conformity Assessment and Supervision UK industry has expressed the view that ERA s proposed revision of the CSMs for Conformity Assessment and Supervision, means that it, the ERA, may need to deal with the problem of NSAs having different enforcement powers. 19

20 Date updated October

21 The Fourth Railway Package Background The European Commission (EC) published proposals for the Fourth Railway Package on 31 January The package is a complex series of proposals, summarised at: There are two pillars to the proposals; the Market Pillar contains legislative proposals to further open the market for domestic passenger services across Europe and rules concerning the governance of rail infrastructure. The Technical Pillar contains a revised Interoperability Directive, Safety Directive and European Railway Agency (ERA) Regulation: Interoperability Directive Safety Directive Agency regulation Main provisions Previous versions of the RSLU have included detailed background information and the main provisions of the Forth Railway Package, focussing on 4 key areas: Standards and approvals that work cutting administrative costs to facilitate new operators Better quality and more choice through allowing new players to run rail services encouraging innovation, efficiency and better value for money A structure that delivers maximising operational efficiencies A skilled workforce See section 1 of issue 76 of the Railway Safety Legislation Update for the latest version of this detailed background information: The Council has agreed that competitive tendering should be the main way of awarding public service contracts. However, direct awards without tendering would be possible if justified by the structure and geographical characteristics of the market and network 21

22 and if it would improve the quality of services and/or cost-efficiency. Operators would have to meet objective and measurable performance criteria such as train punctuality and service frequency Current status Fourth Railway Package considerations Member States reached political agreement in 2014 on changes to the technical pillar. Trilogue discussions between the European Commission, European Council and European Parliament have been taking place in An informal agreement of the technical pillar was agreed at a TRAN vote in July 2015 and a closure of the first reading took place in October The European Parliament has now in principle accepted the choice model, which allows a duty holder to choose between ERA and their NSA for the issuing of safety certificates and vehicle authorisations when they apply in only one country. The choice model was strongly supported by member states. For cross-border services, applications for safety certification and EU-wide authorisation of vehicles will be submitted to ERA. Under the agreed texts, ERA will become a one-stop shop for all applications for safety certification and the authorisation of locomotives and rolling stock for cross-border services. The new regime should be operational three years after the new rules enter into force, although member states may apply to ERA and the Commission for a one year extension if necessary. The agreement also foresees a further harmonisation of technical standards to take place over time. Other key points of change will be: Certificates will cover Area of Operation for the TOC (similarly T&RS will have Area of Use under Interoperability Regulations) Depots and sidings come into scope of area of operation Greater detail on maintenance functions (and ECMs) Annual safety report input date is brought forwards to the end of May Member State to designate competent authorities to monitor driving, working, rest time for drivers as part of CSM Supervision Peer reviews of National Investigation Bodies, reports may be published on voluntary basis (but note FOI could apply) ERA to start issuing safety certs within 3 years of the Directive coming into force, and NSAs can continue for 4 years- and longer for single state operators The timescales which the Council has agreed for implementation of these changes are longer than those put forward by the Commission. There would be a period of 10 years 22

23 when national authorities could directly award public service contracts without having to justify their use, and existing contracts would be allowed to run until they expire. Member states would have three years to implement key rules on independence and financial transparency, with non-discriminatory access required from The EC established a Task Force to consider the arrangements that would need to be in place for the introduction of a single safety certificate. The EC has since proposed an extension of TF s remit from single safety certificates to all aspects of 4 TH Railway Package technical pillar implementation. Revised terms of reference of the TF will be put to the next RISC meeting for validation. The TF will have a particular role in securing the legislative measures that will be needed (Implementing Acts and Delegated Acts).. The extension of responsibility to other actors in the railway system (including loaders and fillers) has now been resolved: The relevant article 4(4) states: Without prejudice to the responsibilities of railway undertakings and infrastructure managers referred to in paragraph 3, entities in charge of maintenance and all other actors having a potential impact on the safe operation of the Union rail system, including manufacturers, maintenance suppliers, keepers, service providers, contracting authorities, carriers, consignors, consignees, loaders, unloaders, fillers and unfillers, shall: (a) implement the necessary risk control measures, where appropriate in cooperation with other actors; (b) ensure that subsystems, accessories, equipment and services supplied by them comply with specified requirements and conditions for use so that they can be safely operated by the railway undertaking and/or the infrastructure manager concerned. In other member states the above extension of responsibility to others is seen as beneficial for clarifying responsibilities. In the UK the existing contractual system largely deals with such concerns. To ensure that the new responsibilities work effectively, cooperation agreements will be needed between NSAs and ERA. A subgroup of NSA Network, chaired by UK, will develop proposals for these agreements. Entry into force is currently foreseen for 1 January The transition period (time for implementation) is 3 years from 1 January 2016, plus there is one additional year for Member States who have difficulty implementing them. So effectively, by 1 st January 2019 most Member States should have implemented, latest is 1 st January ERA has considered five possible scenarios for its work on issuing single safety certificates. The preferred option would mean ERA coordinates the SMS assessment but involves nominees from a pool of experts (who can be from NSAs or external experts). An impact assessment on this option will be carried out by ERA. 23

24 It is clear that the original implementation dates of 2017 for single certification etc are unlikely to be realised, the revised timescales are to operate in shadow mode in 2018 with implementation of the Directive (through national Regulations) by This (4 th Rail Package) will obviously then have an impact on both CSM Conformity Assessment and CSM Supervision, work which is being undertaken to ensure that there will be adequate collaborative and cooperative process in place between the ERA and the NSAs once the Directives, and the new European Rail Agency Regulation are in force. Standards and approvals that work ERA submitted a recommendation to the EC seeking to increase the transparency of the process for notification of NSRs in different Member States. The recommendation included a proposal to establish a taskforce to support this work and prepare good practice guidance. The main recommendations in the report, which have been integrated into the 4 th Railway Package, were: Merge NSRs and NTRs into national rules Streamline requirements for notification in NOTIF-IT and publication Remaining rules apply to exceptions in European law NSRs (in current definition) will be: same operating rules, as allowed by OPE TSI and RID; risk acceptance criteria; and criteria for significant change The EC see NSRs as a barrier to entry into the market. Extension of EU legislation (eg, train driver certification, the CSMs for Conformity Assessment and Risk Assessment, and the TSI OPE) has closed many gaps, therefore making many NSRs and types of NSRs redundant. The NSR task force developed a draft rule management tool to help Member States/NSAs work through the significant task of updating, reclassifying and withdrawing NSRs to reflect these developments. The rule management tool will be further developed/ applied by the new ERA taskforce. ERA would like NSAs (or other competent authorities) to apply this tool as soon as possible to clean up the rules, and then on an annual basis. ERA confirmed at October 2015 s RISC meeting that progress with rules harmonisation is to be tracked via a fixed item on RISC agenda and with regular reporting from ERA. A number of NSAs remain concerned over the likely speed of authorisation when ERA is responsible. In some member states authorisation is moving towards vehicle series rather than individual types, which has yet to occur at European level. There are also concerns that ERA does not yet have a policy covering major and minor vehicle upgrades. ERA held a workshop at the end of October 2015 to identify issues arriving from the 4RP, understand new roles and responsibilities and to consider how to ensure convergence 24

25 to a common process. Wider discussions between ERA, NSAs and stakeholders will take place in the new year. ERA is planning to have a workshop involving the sector during A number of safety authorities have proposed that ERA make it clear NSA experts are the first choice of the Agency and that these are nominated by the NSA in question, established by legal contract between ERA and the NSA rather than individual expert. There are some concerns over the involvement of non-rail specialists and the possibility of decoupling assessment from supervision. It was agreed by NSAs to study the framework contract that exists in the aviation sector between EASA and national aviation authorities. It is expected that ERA will propose a similar framework, borrowing many parts of EASA contracts. ERA has not yet decided if contracts will definitely be with NSAs rather than individual experts. ERA now sees cooperation agreements taking place over three phases: i) learning phase (now until 2017); ii) shadow running (2018); iii) delivery phase (from 2019 onwards). EPSF has an agreement with ERA which is regarded as a cooperation agreement for phase i). Railway industry position The industry has expressed views to the EC, particularly on the avoidance of duplication of approvals processes and increased costs as currently the ORR do not charge for assessment whereas the ERA will be charging, fees will have to be apportioned between the ERA and the NSAs. In other member states the above extension of responsibility to others is seen as beneficial for clarifying responsibilities. In the UK the existing contractual system largely deals with such concerns. The UK does not share the level of concerns of other NSAs and sees the possibility of a role for non-nsa experts in assessment. ERA reinterpreted the final recommendation to only include NSRs needed for the OPE TSI and ORR and some other NSAs have asked ERA to consider including rules for safety critical work (Type 6). The development of the rule management tool is an opportunity for UK railway (ORR, DfT and RSSB) to examine the GB NSRs to ensure they are transparent and that the right rules appear on the NOTIF-IT database. 25

26 The Rail Delivery Group, which represents the UK rail industry, said the agreement was a compromise between countries which wished to see far more ambitious open markets, and those who wished to retain national state-owned structures. RDG said it fully supports this compromise as a useful step forward. Date updated October

27 EC Regulation EU/445/2011 (The Entities in Charge of Maintenance Regulation) Background Prompted by the incidents as Viareggio and Bressanone, ERA established a task force to look at the management of contractors which reports back to the cooperation of certifying bodies task force. The Entities in Charge of Maintenance Regulation (ECM) was published in the Official Journal of the European Union on 11 May As a result, certifying bodies have offered certification since May 2012 and freight ECMs will be required to be certified by The first amendment to ROGS, which includes the requirement for all vehicles registered in the NVR to be assigned to an ECM came into force on 26 August The second amendment came into force on 21 May 2013 and sets out the requirements for the certification of freight ECMs, and enables the supervision by ORR. Main provision An Entity in Charge of Maintenance has to be assigned to all vehicles and registered as such in the national vehicle register (NVR). For domestic vehicles, this was done by 9 November (All international vehicles should have been entered on the NVR by 9 November 2009). The certification scheme currently only applies to freight wagons Previous versions of the RSLU have included detailed background information on Entities in Charge of Maintenance. See section 1 of issue 76 of the Railway Safety Legislation Update for the latest version of this detailed background information: Current status ERA actions ERA has received a mandate to make a recommendation to the Commission on examining the feasibility of extending the scope of the certification ECMs to all vehicles and propose the content for a revised legal act. A timetable has been proposed from November 2015 until April 2017, when ERA will address the recommendation to the EC. 27

28 ERA has set-up a Technical Committee (TC) in order to facilitate the provision in Article 6(4) of the ECM Regulation (445/2011/EU). The TC will provide means of formalising the drafting and issuing of technical recommendations. The ECM certification scheme and the ECM accreditation scheme are both being revised to allow migration from EN to ISO 17065:2012. Comments to ERA to be sent by 15 December. ERA will then consult the European Cooperation for Accreditation. Railway industry position A mandate was tabled at RISC on 4 June 2015 on the possible extension of scope. The UK stated its opposition to this proposal, stressing a lack of market or safety problems needing a solution, in addition to the unnecessary layer of further regulation. In addition, any changes should be supported by a proper impact assessment. Germany offered a compromise text that allowed ERA to make a positive or negative recommendation rather than the original draft mandate that would have obliged ERA to extend the scheme. A number of NSAs wanted mandatory certification extended to all vehicles. Following an internal review ORR will continue as a certifying body for ECMs for freight wagons. This position will be reviewed again in UKAS has set up an accreditation scheme for the UK so other certifying bodies can be accredited. Date updated October

29 Train Driving Licences and Certificates Regulations 2010 and changes to the Train Driving Licences Directive Background The Train Driving Licences and Certificates Regulations 2010 (TDLCR) sets out the legal requirements of the licensing and certification system for train drivers in Great Britain. This brings into force the requirements of the Train Driving Licences Directive 2007/59/EC (TDL). Main provisions Any new driver must have a train driver licence and certificate to drive on the mainline railway. Existing drivers will need a train driver licence and certificate to drive by 29 October Doctors, psychometric assessors and training and examination centres who assess new train drivers must be recognised by ORR. Previous versions of the RSLU have included detailed background information on Train Driving Licences and Certificates and on related issues: ERA Report on the Introduction of Smartcards Driver Registers See section 1 of issue 76 of the Railway Safety Legislation Update for the latest version of this detailed background information: 29

30 Current status Extending requirements The proposed changes to the TDL directive regarding general professional knowledge, medical and licence requirements at the January 2014 RISC were accepted. The new section 8 paragraph 2 final sentence in Annex VI has been amended to read: Drivers must be able to communicate orally and in writing according to level B1 of the Common European Framework of Reference for Languages (CEFR) established by the Council of Europe. The requirement for written communication is additional to the existing requirements. The amendments were published by the Commission on 24 June DfT published the final amending regulations on 23 October Driver registers It is expected ERA will deliver a recommendation for further changes to the Directive and supporting legislation by the end of A final draft report was circulated by ERA on 23 October for comments. Any changes to the Directive are unlikely before ERA has established a Task Force and drafting Sub Group on 3 December 2014 to discuss and agree the proposed changes. Seven meetings have taken place and one more is planned. The EC mandate to ERA has asked them to prepare proposals in the following areas: Article 3: Definitions. Some terms (i.e. historical trains, cross border drivers and native language) are not properly defined. Different terms were also used for the same process (e.g. examinations, checks and assessments) and which may need to just one term. Agreement has been reached within the Task Force on proposed new definitions Article 4: community certification model. Article 4(2) does not cover all cases where an exemption would be needed and uses unconventional terminology about a second driver. It was also felt that the need to inform the infrastructure manager where a second driver was needed for route knowledge was not appropriate. 4(3) (a) does not clearly define operations covered under category A of the certificate and might better to do this than refer to rolling stock. New draft definition proposals for categories of drivers circulated on 4 June and have now been agreed: these concern category A shunting movements in a defined restricted area and category B train driving on the open network. Article 11(1): Education requirements were seen by most NSA as unhelpful - clarification or deletion will be considered by ERA. For Article 11(2) and (3) most participants want common criteria to be developed for the recognition of doctors and psychologists. A proposal to allow at least two years railway operation work experience to be used as substitute for education has been put forward and no agreement has been reached on including an education level. 30

31 Article 11(1): Education requirements were seen by most NSA as unhelpful - clarification or deletion will be considered by ERA. For Article 11(2) and (3) most participants want common criteria to be developed for the recognition of doctors and psychologists. A proposal to allow at least two years railway operation work experience to be used as substitute for education has been put forward and no agreement has been reached on including an education level. Article 16: The need for periodic checks for psychometric assessments was unclear as no timescales were included and it is not apparent who should do this check. This might be deleted altogether by ERA or else further clarified. There is disagreement among NSAs and within CER on whether a periodic assessment is needed. Views vary between no assessment, one every ten years and a periodic check at 55. The evidence for a periodic assessment is not robust. ERA have redrafted the text so that it is left to NSAs to decide if they want to have periodic psychometric assessments Article 17: It was not clear why it was necessary to inform the NSA when a driver ceases work as the licence can remain valid. This will therefore be deleted. Article 23(5): recognition of language schools. Most NSA felt they did not have the expertise to do this and should not be required to do so. It has been agreed that NSAs should not be recognising or accrediting language schools. Annex II: Medical requirements. ORR raised concerns over vision requirements and there may be some changes made. The working group discussed ERA needing expert advice to enable to keep up to date with changes in medical practice. A working party of medical experts has proposed changes to clarify the vision requirements and delete the need for a mandatory assessment after an n accident. Annex IV: General professional knowledge. Seen as too vague and needs to be replaced by something more precise. ERA has put forward three options, (a) do nothing, (b) develop a draft based on general operating principles or (c) amend the Directive to require a proposal to be developed within three years. (c) has the most support and will be the recommendation put to the Commission. Train driver certificate. Not clear what terms to use for rolling stock and infrastructure on the certificate and this needed to be clarified in the EC decision 17/2010. The EC Regulation on the format of the certificate was too prescriptive and out-dated requiring to be a paper copy. NSAs and CER have put forward proposals to change the Regulation and model certificate to allow more flexibility. CER would prefer the certificate only listed operating systems the driver is competent to drive on. It has been agreed that the paper copy can be A4 and ERA will recommend that they draft proposals for the infrastructure knowledge that will be required on the certificate. National Licence Register. The EC decision needed clarification on how medical assessment information is provided to NSAs and what information should be stored by 31