The Railways and Other Guided Transport Systems (Safety) Regulations 2006

PART 1U.K.INTRODUCTION

Citation and commencementU.K.

1.  These Regulations may be cited as the Railways and Other Guided Transport Systems (Safety) Regulations 2006 and shall come into force—

(a)as respects all regulations except for regulations 19, 23 to 26, 29, and 34 on 10th April 2006; and

(b)as respects regulations 19, 23 to 26, 29 and 34 on 1st October 2006.

Interpretation and applicationU.K.

2.—(1) In these Regulations—

[F1“2011 EU ECM Regulation” means Commission Regulation (EU) No 445/2011 on a system of certification of entities in charge of maintenance for freight wagons and amending Regulation (EC) No 653/2007 as it had effect or as it has effect in EU law, as the context dictates;

“2019 EU ECM Regulation”, save in the expression “retained 2019 EU ECM Regulation”, means Commission Implementing Regulation (EU) 2019/779 laying down detailed provisions on a system of certification of entities in charge of maintenance of vehicles pursuant to Directive (EU) 2016/798 of the European Parliament and of the Council and repealing Commission Regulation (EU) No 445/2011 as it had effect or as it has effect in EU law, as the context dictates;

“accident” means an unwanted or unintended sudden event or a specific chain of such events which have harmful consequences; accidents are divided into the following categories: collisions, derailments, level-crossing accidents, accidents to persons caused by rolling stock in motion, fires and others;]

“building operation” means the—

but does not include any operation which is a work of engineering construction;

“bus” means a motor vehicle which is designed or adapted to travel along roads and to carry more than eight passengers but which is not a tramcar;

“cableway installation” means an installation made up of several components that—

but does not include cable operated tramways, rack railways or lifts;

M1M2“carriageway” has the same meaning as in the Highways Act 1980 , or in Scotland the Roads (Scotland) Act 1984 ;

[F2“certification body” [F3means a body responsible for the certification of entities in charge of maintenance, on the basis of the criteria in Part 3 of Schedule 10 ]];

[F4“common safety methods” (“CSMs”) means—

as they have effect in Great Britain;]

[F5“common safety targets” (“CSTs”) means the minimum safety levels that must be reached by the mainline railway system, or parts of the mainline railway system, expressed in risk categories as defined in paragraph 2 of Schedule 11;]

“competent person” means, except for the purposes of Part 4, a person who—

[F6“cross-border service” means a service for the carriage of passengers or goods by way of the tunnel system;

“cross-border UK-issued ECM certificate” means a certificate issued in the United Kingdom to an entity in charge of maintenance by an accredited or recognised body or by a safety authority in accordance with the retained 2019 EU ECM Regulation;]

F7...

F8...

F8...

[F9“the Directive” means Directive 2004/49/EC of the European Parliament and of the Council on safety on the Community’s railways and amending Council Directive 95/18/EC on the licensing of railway undertakings and Directive 2001/14/EC on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification as amended by—

[F10“EU ECM certificate” means a certificate issued to an entity in charge of maintenance in accordance with the 2011 EU ECM Regulation or the 2019 EU ECM Regulation as may be applicable;]

F11...

“engineering possession” means a section of track which is closed to normal traffic and where the closure is for the purpose of carrying out maintenance which shall include any repair alteration, reconditioning, examination or testing of infrastructure;

[F12“entity in charge of maintenance” means an entity in charge of maintenance of a vehicle, and includes a transport undertaking, an infrastructure manager or a keeper;]

F13...

M3“factory” means a factory within the meaning of section 175 of the Factories Act 1961 and premises to which section 123(1) or (2) or 125(1) of that Act applies;

[F14“freight wagon” means a non-self-propelled-vehicle designed for the purpose of transporting freight or other materials to be used for activities such as construction or infrastructure maintenance;]

“guided bus system” means a system of transport, used wholly or mainly for the carriage of passengers, that employs buses which for some or all of the time when they are in operation—

“guided transport” means a system of transport, used wholly or mainly for the carriage of passengers, employing vehicles which for some or all of the time when they are in operation are guided by means of—

[F15“harbour” area has the same meaning as in the Dangerous Goods in Harbour Areas Regulations 2016;]

F16...

F17...

“infrastructure” means fixed assets used for the operation of a transport system which shall include, without prejudice to the generality of the foregoing—

“infrastructure manager” means the person who—

[F18“Interoperability Directive” means Directive 2008/57/EC of the European Parliament and of the Council of 17^th June 2008 on the interoperability of the rail system within the Community (Recast);]

“Interoperability Regulations” means the Railways (Interoperability) Regulations [F192011];

[F20“keeper” means the person who, being the owner of a vehicle or having the right to use it, exploits the vehicle as a means of transport and is registered as being the keeper in the National Vehicle Register;]

“mainline application” means an application for—

made in relation to an operation on the mainline railway;

[F21“mainline railway” means any railway except for any railway or part of a railway—

“mainline railway system” means the mainline railway and the management and operation of the mainline railway as a whole;

[F23“maintenance file” means the written file that contains all the technical and management information that is necessary to carry out the maintenance of a vehicle;]

[F23“maintenance rules” means any rules, applicable [F24in] Great Britain, which set out requirements relating to the maintenance of vehicles;]

“material” includes plant;

“military establishment” means an establishment intended for use for naval, military or air force purposes or for the purposes of the Department of the Secretary of State responsible for defence;

M4“mine” has the meaning assigned to it by section 180 of the Mines and Quarries Act 1954 ;

“national safety rules” means any legislation and other requirements—

except that where the requirements in sub-paragraph (b) consist of common operating rules of the mainline railway it shall not include such rules which regulate matters which are [F27covered by an NTSN];

[F28“NTSN” means a National Technical Specification Notice published by the Secretary of State pursuant to regulation 3B of the Interoperability Regulations;]

[F29“National Vehicle Register” means the register of vehicles authorised in Great Britain, required by regulation [F3036] of the Interoperability Regulations;]

“new” in relation to regulations 5 and 6 means new to the transport system in question;

“non-mainline application” means an application for—

made in relation to an operation on a transport system other than the mainline railway;

“operator of last resort” means a transport operator appointed by the Secretary of State to provide transport services in accordance with section 30 of the Railways Act 1993;

[F31“owner”, in relation to a vehicle, means any person who has an estate or interest in, or a right over, that vehicle, and whose permission is needed before another may use it;]

“Part A of a safety certificate” means that part of a safety certificate certifying the matters set out in regulation 7(4)(b)(i) and related expressions shall be construed accordingly;

“Part B of a safety certificate” means that part of a safety certificate certifying the matters set out in regulation 7(4)(b)(ii) and related expressions shall be construed accordingly;

[F32“placed in service” means when a vehicle or infrastructure, having been constructed, upgraded or renewed, is first operated in the provision of a transport service, and in ascertaining when this takes place no regard shall be had to any trials or testing that take place to the vehicle or infrastructure, and cognate expressions shall be construed accordingly;]

M5“quarry” has the meaning assigned to it by regulation 3 of the Quarries Regulations 1999 ;

“railway” means a system of transport employing parallel rails which—

but does not include a tramway;

[F33“Recast Safety Directive” means Directive (EU) 2016/798 of the European Parliament and the Council on railway safety (recast);]

“relevant infrastructure manager” means the infrastructure manager for any infrastructure used in relation to the operation in question;

“relevant infrastructure or vehicle” means any new or altered—

falling within regulation 5(4) or 6(4) and related expressions shall be construed accordingly;

“responsible person” means in relation to any relevant infrastructure or vehicle, any person who—

and includes an authorised representative established in Great Britain of such a person.

[F34“retained 2019 EU ECM Regulation” means Commission Implementing Regulation (EU) 2019/779 laying down detailed provisions on a system of certification of entities in charge of maintenance of vehicles pursuant to Directive (EU) 2016/798 of the European Parliament and of the Council and repealing Commission Regulation (EU) No 445/2011, as it has effect in the UK after IP completion day;]

“risk” means in Parts 1 and 2 a risk to the safety of a person;

“road” means in the definition of ” “guided bus system” and “tramway” –

M6“rolling stock” has the meaning in section 83(1) of the Railways Act 1993 ;

M7“ROTS” means the Railways and Other Transport Systems (Approval of Works, Plant and Equipment) Regulations 1994 ;

“safety authorisation” means a safety authorisation issued by the [F22Office of Rail and Road] in accordance with regulation 10 or 12;

[F35“safety authority”, save for in the expression “safety authority for the tunnel system”, means—

[F36“safety authority for the tunnel system” means the Intergovernmental Commission as defined in section 49(1) of the Channel Tunnel Act 1987 M11;]

“safety certificate” means a safety certificate issued by the [F22Office of Rail and Road] in accordance with regulation 7 or 9;

“safety management system” means the organisation and arrangements established by a transport operator to ensure the safe management of its operation;

“significant safety risk” means, in relation to new or altered infrastructure or a new or altered vehicle the design or construction of which incorporates significant changes compared to any infrastructure or vehicle already in use on the transport system, the capability of significantly increasing an existing safety risk or creating a significant safety risk to—

“station” means a passenger stop, station or terminal on a transport system but does not include any permanent way or other means of guiding or supporting vehicles or plant used for signalling or exclusively for supplying electricity for operational purposes to a transport system;

[F37“subsystem” has the same meaning as in the Interoperability [F38Regulations]] ;

F39...

“train” includes any rolling stock;

“tramway” means a system of transport used wholly or mainly for the carriage of passengers—

“transport operator” means any transport undertaking or infrastructure manager;

“transport system” means a railway, a tramway, or any other system using guided transport where that other system is used wholly or mainly for the carriage of passengers but a transport system does not include—

except where the transport system in question forms part of the mainline railway;

“transport undertaking” means any person who operates a vehicle in relation to any infrastructure but shall not include a person who operates a vehicle solely within an engineering possession;

“trolley vehicle system” means a system of transport by vehicles constructed or adapted for use on roads without rails under electric power transmitted to them by overhead wires (whether or not there is in addition a source of power on board the vehicles);

[F41“tunnel system” has the same meaning as in section 1(7) of the Channel Tunnel Act 1987;

“UK-issued ECM certificate”, save in the expression “cross-border UK-issued ECM certificate”, means a certificate issued in the United Kingdom to an entity in charge of maintenance by an accredited or recognised body or by a safety authority in accordance with Schedule 10;]

[F42“vehicle”—

“work of engineering construction” means the—

“writing” apart from its usual meaning includes any text transmitted using electronic communications that is received, or accessible by the person to whom it is sent, in legible form.

(2) Any reference in these Regulations to a person who operates a train or a vehicle is a reference to the person operating the train or vehicle for the time being in the course of a business or other undertaking carried on by him, whether for profit or not, but it does not include a self-employed person by reason only that he drives or otherwise controls the movement of a train or vehicle.

[F43(3) Parts 2 and 3 of these Regulations shall not apply to or in relation to the operation of a train or the management or use of infrastructure in the tunnel system, save for—

(a)regulation [F4418(A1)] for vehicles used to operate a cross-border service;

(b)regulation 18B for the tunnel system.]

[F45Determination of exclusion from the mainline railwayU.K.

2A.—(1) A railway or part of a railway does not form part of the mainline railway if the [F46Office of Rail and Road] determines that it falls within one or more of these categories—

(a)metros and other light rail systems;

(b)networks that are functionally separate from the rest of the mainline railway and intended only for the operation of local, urban or suburban passenger services, as well as transport undertakings operating solely on these networks;

(c)heritage, museum or tourist railways that operate on their own networks;

(2) The [F46Office of Rail and Road] may determine that a heritage vehicle which operates on the mainline railway and complies with national safety rules is deemed not to operate on the mainline railway for the purposes of these Regulations.

(3) The [F46Office of Rail and Road] may revoke or vary a determination under paragraph (1) or (2).

(4) A person may make an application to the [F46Office of Rail and Road] for a determination under paragraph (1) or (2) or for such a determination to be revoked or varied under paragraph (3) and the [F46Office of Rail and Road] shall consider any such application.

(5) The [F46Office of Rail and Road] shall maintain and publish a list of—

(a)railways or parts of railways that do not form part of the mainline railway; and

(b)heritage vehicles which operate on both the mainline railway and heritage railway and are deemed not to operate on the mainline railway,

by virtue of determinations made under paragraph (1) or (2).]

PART 2U.K.SAFETY MANAGEMENT, CERTIFICATION AND AUTHORISATION

Use of infrastructure on the mainline railwayU.K.

3.—(1) After 30th September 2006 no person shall operate a train in relation to any infrastructure on the mainline railway unless—

(a)he has established and is maintaining a safety management system which meets the requirements set out in regulation [F475(1) to (3)]; and

(b)he holds a current safety certificate in relation to the operation in question,

except to the extent that he is doing so within an engineering possession.

(2) After 30th September 2006 no person who is responsible for developing and maintaining infrastructure other than a station or who is responsible for managing and operating a station on the mainline railway shall manage and use it, or permit it to be used, for the operation of trains unless—

(a)he has established and is maintaining a safety management system which meets the requirements referred to in regulation 5(7);

(b)he holds a current safety authorisation in relation to the infrastructure in question; and

(c)where he is using it or permitting such use, the person who is to use the infrastructure has complied with paragraph (1)(b).

Use of infrastructure on other transport systemsU.K.

4.—(1) After 30th September 2006 no person shall operate a vehicle in relation to any infrastructure on a transport system other than the mainline railway unless—

(a)he has established and is maintaining a safety management system which meets the requirements set out in regulation 6; and

(b)subject to paragraph (3), he holds a current safety certificate in relation to the operation in question,

except to the extent that he is doing so within an engineering possession.

(2) After 30th September 2006 no person who is responsible for developing and maintaining infrastructure, other than a station, or who is responsible for managing and operating a station on a transport system other than the mainline railway shall manage and use it, or permit it to be used, for the operation of a vehicle unless—

(a)he has established and is maintaining a safety management system which meets the requirements set out in regulation 6; and

(b)subject to paragraph (3)–

(i)he holds a current safety authorisation in relation to the infrastructure in question; and

(ii)where he is using it or permitting such use, the person who is to use the infrastructure has complied with paragraph (1)(b).

(3) Paragraphs (1)(b) and (2)(b) shall not apply to the extent that the operation in question is only carried out—

(a)on a tramway; or

(b)on a transport system on no part of which there is a permitted maximum speed exceeding 40 kilometres per hour.

(4) Where the operation in question falls within paragraph (3)(a) or (b), the requirement in paragraphs (1)(a) and (2)(a) shall be read as if the date was, in each case, after 31st March 2007.

Safety management system for the mainline railwayU.K.

5.—(1) The requirements for a safety management system referred to in regulation 3(1)(a) are that—

(a)subject to paragraph (2), it is established to ensure that the mainline railway system—

(i)can achieve the CSTs; and

(ii)is in conformity with relevant national safety rules and relevant safety requirements laid down in [F48NTSNs]

(b)it applies the relevant parts of CSMs;

(c)it meets the requirements and contains the elements set out in Schedule 1, adapted to the character, extent and other characteristics of the operation in question;

(d)subject to paragraph (2), it ensures the control of all categories of risk including new or existing risks associated with the operation in question which, without prejudice to the generality of the foregoing, shall include such risks relating to the—

(i)supply of maintenance and material; [F49and]

(ii)use of contractors; F50...

F51(iii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e)it takes into account, where appropriate and reasonable, the risks arising as a result of activities carried on by other persons; and

(f)all parts of it are documented.

(2) The requirements in paragraphs (1)(a) and (d) shall be met where the safety management system of a transport operator or of an applicant for a safety certificate or a safety authorisation (“the first operator”) taken with that of any relevant transport operator is capable of meeting the requirements of the paragraph in question.

(3) In paragraph (2), “relevant transport operator” means another transport operator whose operation is capable of materially affecting the safety of the operation carried on by the first operator.

F52(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F53(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F54(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F55(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) The requirements for a safety management system referred to in regulation 3(2)(a) are the requirements in paragraphs [F56(1) to (3)] F57... and that—

F58(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)it takes into account the effects of operations of transport undertakings; and

(c)it contains provisions to ensure that the way in which the infrastructure manager carries out his operation makes it possible for any transport undertaking to operate in accordance with—

(i)relevant [F59NTSNs] and national safety rules; and

(ii)the means adopted by the transport undertaking to meet the requirements referred to in regulation 7(4), of which the [F60Office of Rail and Road] accepted that there was sufficient evidence upon issue or amendment of its safety certificate pursuant to these Regulations; and

(d)it aims to co-ordinate the emergency procedures of the infrastructure manager or of the applicant for a safety authorisation with those of transport undertakings,

and in each case the requirements in [F61sub-paragraphs (b) to (d)] shall only apply in relation to transport undertakings that operate or will operate a train in relation to the infrastructure of the infrastructure manager or of the applicant for a safety authorisation in question.

Safety management system for other transport systemsU.K.

6.—(1) The requirements for a safety management system referred to in regulation 4(1)(a) and 4(2)(a) are that—

(a)it is adequate to ensure that the relevant statutory provisions which make provision in relation to safety will be complied with in relation to the operation in question;

(b)subject to paragraph (7), it meets the requirements and contains the elements set out in Schedule 1, adapted to the character, extent and other characteristics of the operation in question;

(c)subject to paragraph (2), it ensures the control of all categories of risk associated with the operation in question which, without prejudice to the generality of the foregoing, shall include such risks relating to the—

(i)supply of maintenance and material;

(ii)use of contractors; and

(iii)placing in service of new or altered vehicles or infrastructure the design or construction of which incorporates significant changes compared to any vehicles or infrastructure already in use on the transport system and which changes would be capable of significantly increasing an existing risk or creating a significant safety risk;

(d)it takes into account, where appropriate and reasonable, the risks arising as a result of activities carried on by other persons; and

(e)all parts of it are documented.

(2) The requirement in paragraph (1)(c) shall be met where the safety management system of a transport operator or an applicant for a safety certificate or a safety authorisation (“the first operator”) taken with that of any relevant transport operator is capable of meeting the requirements of the paragraph in question.

(3) In paragraph (2), “relevant transport operator” means another transport operator whose operation is capable of materially affecting the safety of the operation carried on by the first operator.

(4) In paragraph (1)(c)(iii) where such new or altered vehicles or infrastructure are intended to be placed in service, then before that placing in service the transport operator shall ensure that he—

(a)has an established written safety verification scheme which meets the requirements and contains the elements set out in Schedule 4; and

(b)has appointed a competent person to undertake that safety verification and the competent person has undertaken that safety verification in relation to the new or altered vehicle or infrastructure.

F62(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) In this regulation the requirements of paragraph (4) shall apply in the absence of a transport operator to a responsible person as they would apply to a transport operator.

(7) Paragraph 2(c) of Schedule 1 shall apply in relation to transport systems other than the mainline railway as if it read as follows—

“(c)procedures—

(i)to meet relevant technical specifications; and

(ii)relating to operations or maintenance,

insofar as they relate to the safety of persons, and procedures for ensuring that the procedures in sub-paragraphs (i) and (ii) are followed throughout the life-cycle of any relevant equipment or operation;”.

Safety certificateU.K.

7.—(1) An application for a first safety certificate in respect of an operation shall—

(a)be made to the [F63Office of Rail and Road];

(b)subject to regulation 17(1) and (2), include the information set out in—

(i)Part 1 of Schedule 2 in respect of a mainline application; and

(ii)Part 2 of Schedule 2 in respect of a non-mainline application; and

(c)if it is a mainline application, clearly indicate in respect of which part of the safety certificate any information is provided.

(2) [F64Subject to paragraph 2A,] where—

(a)an applicant sends to the [F63Office of Rail and Road] in relation to a mainline application the matters specified in paragraphs 1(a) and 1(b)(i) of Schedule 2; and

(b)the [F63Office of Rail and Road] is satisfied that the certificate in question is for an equivalent operation to that in respect of which the application is made,

then that certificate shall be deemed to be Part A of the safety certificate for the operation in respect of which the application is made.

[F65(2A) Where in accordance with paragraphs (1) and (2) of this regulation, the applicant has at any time before, on or after exit day submitted a copy of the certificate referred to in paragraph 1(b)(i)(bb) of Schedule 2, that certificate shall cease to be deemed to be Part A of the safety certificate after the second anniversary of exit day and no such certificate submitted after that anniversary shall be deemed to be Part A of the safety certificate.]

(3) Subject to regulation 17(7), within four months of the date of receipt of the application, the [F63Office of Rail and Road] shall—

(a)issue a safety certificate for the operation in question; or

(b)notify the applicant that it has refused the application,

and in either case shall give reasons for its decision.

(4) A safety certificate shall—

(a)specify the type and extent of the operation in respect of which it is issued; and

(b)certify acceptance by the [F63Office of Rail and Road] that the applicant has provided sufficient evidence—

(i)subject to paragraph (2), to demonstrate that the safety management system of the applicant meets the requirements set out in regulations 5(1) to (4) in respect of a mainline application or regulation 6 in respect of a non-mainline application; and

(ii)of the provisions adopted by the applicant to meet the requirements that are necessary to ensure safe operation on the transport system in question,

and reference the information on which such acceptance is based; and

(c)be valid for no longer than five years from the date of issue and the period of validity shall be indicated in the safety certificate and where Part A of the certificate is deemed to be such a Part A in accordance with regulation 7(2) that period shall expire on or before the date of expiry of the certificate which is deemed to be the Part A.

(5) In paragraph (4)(b)(ii) “requirements” means in relation to—

(a)a mainline application, the [F66NTSNs], national safety rules and other safety requirements referred to in paragraph 2(a) of Schedule 2; and

(b)a non-mainline application, the relevant statutory provisions, technical specifications and procedures referred to in paragraph 5 of Schedule 2.

Amended safety certificateU.K.

8.—(1) Where it is proposed that the type or extent of an operation in respect of which a safety certificate has been issued is to be substantially changed then the holder of the safety certificate shall apply to the [F67Office of Rail and Road] for the safety certificate to be amended accordingly and the substantial change shall not be made until the safety certificate is so amended.

(2) An application for an amended safety certificate under this regulation shall—

(a)provide details of the change proposed;

(b)provide details of any consequential changes to any information sent to the [F67Office of Rail and Road] in respect of the operation in question which remains relevant to that operation; and

(c)if it is a mainline application, clearly indicate in respect of which part of the safety certificate any information is provided.

(3) Where Part A of a safety certificate in respect of which an application is made is deemed to be such a Part A in accordance with regulation 7(2) then the [F67Office of Rail and Road] shall—

(a)consider whether the Part A in question would still be for an equivalent operation if the change were made; and

(b)if it considers that it would not be equivalent, notify the applicant in accordance with paragraph (4) that it has refused the application and that he should apply for a new safety certificate under regulation 7 if he wants to make the proposed change,

except that, in relation to Part B of the safety certificate, he only need provide the details set out in paragraph (2) above.

(4) Subject to regulation 17(7), within four months of the date of receipt of the application the [F67Office of Rail and Road] shall—

(a)issue a notice making any necessary amendments to the matters set out in the safety certificate; or

(b)notify the applicant that it has refused the application,

and in either case shall give reasons for its decision.

Further safety certificateU.K.

9.—(1) Before the expiry of a safety certificate the holder of that safety certificate may apply to the [F68Office of Rail and Road] for a further safety certificate to be issued for the operation in question.

(2) An application for a further safety certificate shall set out particulars of any changes to any information sent to the [F68Office of Rail and Road] in respect of the operation in question which remains relevant to that operation.

(3) Regulations 7(1)(c) and 7(2) to (4) shall apply to an application for and the issuing of a further safety certificate as they apply to an application for and the issuing of a first safety certificate under regulation 7.

[F69Format for safety certificates and applicationsU.K.

9A.  Schedule 8 has effect.]

Safety authorisationU.K.

10.—(1) An application for a first safety authorisation in respect of infrastructure shall—

(a)be made to the [F70Office of Rail and Road];

(b)subject to regulation 17(1) and (2), set out particulars of—

(i)the infrastructure in question;

(ii)how the safety management system of the applicant meets the requirements in regulation 5(7) in relation to a mainline application or in regulation 6 in relation to a non-mainline application; and

(iii)how the provisions adopted by the applicant meet any requirements which are necessary for the safe design, maintenance and operation of the infrastructure in question.

(2) Subject to regulation 17(7), within four months of the date of receipt of the application the [F70Office of Rail and Road] shall—

(a)issue a safety authorisation in relation to the infrastructure in question; or

(b)notify the applicant that it has refused the application; and

(c)in either case shall give reasons for its decision.

(3) A safety authorisation shall—

(a)specify the infrastructure in respect of which the authorisation is issued;

(b)accept that the applicant has provided sufficient evidence to demonstrate that the safety management system of the applicant meets the requirements—

(i)referred to in regulation 5(7) in relation to a mainline application; or

(ii)in regulation 6 in relation to a non-mainline application;

(c)accept that the applicant has provided sufficient evidence of the provisions adopted by the applicant to meet any requirements that are necessary for the safe design, maintenance and operation of the infrastructure in question;

(d)reference the information on which the acceptance referred to in sub-paragraphs (b) and (c) is based; and

(e)be valid for no longer than five years from the date of issue and the period of validity shall be indicated in the safety authorisation.

Amended safety authorisationU.K.

11.—(1) Where it is proposed that a substantial change is to be made to—

(a)the infrastructure in respect of which a safety authorisation has been issued;

(b)any energy supply, not falling within sub-paragraph (a), which is used in connection with the infrastructure in question; or

(c)the principles of operation and maintenance of such infrastructure or energy supply,

then the holder of the safety authorisation shall apply to the [F71Office of Rail and Road] for the safety authorisation to be amended accordingly and the substantial change shall not be made until the safety authorisation is so amended.

(2) An application for an amended safety authorisation under this regulation shall provide details of—

(a)the substantial changes proposed; and

(b)any consequential changes to any information sent to the [F71Office of Rail and Road] in respect of the operation in question which remains relevant to that operation.

(3) Subject to regulation 17(7), within four months of the date of receipt of the application the [F71Office of Rail and Road] shall—

(a)issue a notice making any necessary amendments to the matters set out in the safety authorisation; or

(b)notify the applicant that it has refused the application,

and in either case shall give reasons for its decision.

Further safety authorisationU.K.

12.—(1) Before the expiry of a safety authorisation the holder of that safety authorisation may apply to the [F72Office of Rail and Road] for a further safety authorisation to be issued for the infrastructure in question.

(2) An application for a further safety authorisation shall set out particulars of any changes to any information sent to the [F72Office of Rail and Road] in respect of the operation in question which remains relevant to that operation.

(3) Regulations 10(2) and 10(3) shall apply to an application for and the issuing of a further safety authorisation as they apply to an application for and the issuing of a first safety authorisation under regulation 10.

Notice of changes by holder of a safety certificate or a safety authorisationU.K.

13.  The holder of a safety certificate or a safety authorisation shall, without delay, notify the [F73Office of Rail and Road]—

(a)of any major changes—

(i)to the means by which he meets the requirements relating to the safety management system as set out in—

(aa)regulation 5(1) to (4) in relation to an operation of a transport undertaking on the mainline railway;

(bb)regulation 5(7) in relation to an operation of an infrastructure manager on the mainline railway; or

(cc)regulation 6 in relation to an operation which is not carried out on the mainline railway;

(ii)in the case of a transport undertaking, to the provisions adopted by him to meet any requirements necessary to ensure safe operation on the transport system in relation to the operation in question; or

(iii)in the case of an infrastructure manager, to the provisions adopted by him to meet any requirements that are necessary for the safe design, maintenance and operation of the infrastructure in question;

(b)when persons first commence work directly relating to the operation which is of a type which has not previously been carried out in relation to that operation; or

(c)when types of vehicle which are new to the operation in question are first introduced.

Direction to apply for an amended safety certificate or safety authorisationU.K.

14.—(1) Where there is a substantial change to any of the relevant statutory provisions which make provision in relation to the safety of the transport system in question, then the [F74Office of Rail and Road] may direct the holder of a safety certificate or a safety authorisation to apply to the [F74Office of Rail and Road] for an amendment to its safety certificate or safety authorisation.

(2) A direction issued under paragraph (1) shall—

(a)state the reasons why the [F74Office of Rail and Road] considers that it is necessary for the transport operator to apply for an amended safety certificate or safety authorisation;

(b)identify the information—

(i)on the basis of which the [F74Office of Rail and Road]'s acceptance referred to in regulation 7(4) or 10(3) was made upon issue or amendment of the safety certificate or safety authorisation; or

(ii)notified to the [F74Office of Rail and Road] under regulation 13,

which it considers will have to be changed; and

(c)specify the period, being not less than 28 days from the date of issue of the direction, within which the application shall be sent to the [F74Office of Rail and Road].

(3) An application for an amended safety certificate or safety authorisation pursuant to this regulation shall provide details of any changes to any information—

(a)sent to the [F74Office of Rail and Road] in respect of the operation in question which remains relevant to that operation; and

(b)which is consequential upon the relevant change to the relevant statutory provisions.

(4) Regulations 8(2)(c) and 8(4) shall apply to an application for and the issuing of a notice of amendment to a safety certificate under this regulation as they apply to an application for and issuing of an amendment to a safety certificate under regulation 8.

(5) Regulation 11(3) shall apply to an application for and the issuing of a notice of amendment to a safety authorisation under this regulation as it applies to an application for and issuing of an amendment to a safety authorisation under regulation 11.

Revocation of safety certificateU.K.

15.—(1) The [F75Office of Rail and Road] shall revoke—

(a)either Part A or Part B of a safety certificate if it is satisfied that the holder is no longer satisfying the conditions of that part of the safety certificate and that there is a significant risk arising as a result;

(b)a safety certificate if it is satisfied that the holder—

(i)is no longer satisfying the conditions of that safety certificate and that there is a significant risk arising as a result; or

(ii)is not operating a vehicle in relation to any infrastructure on a transport system as intended pursuant to that safety certificate and has not done so throughout the period of one year commencing with the date of issue of the safety certificate by the [F75Office of Rail and Road],

except that this paragraph shall not apply in relation to Part A of a safety certificate where it is deemed to be such a Part A in accordance with regulation 7(2).

(2) In this regulation, “conditions” means in relation to—

(a)Part A of a safety certificate, any part of the requirements relating to the safety management system set out in—

(i)regulation 5(1) to (4) in relation to an operation carried out on the mainline railway; or

(ii)regulation 6 in relation to an operation carried out on a transport system other than the mainline railway;

(b)Part B of a safety certificate, that the provisions adopted by the applicant are sufficient to meet any requirements that are necessary to ensure safe operation on the transport system in question in relation to the operation in question; or

(c)a safety certificate, the matters referred to in sub-paragraphs (a) and (b).

(3) Before revoking any safety certificate or Part A or B of it, the [F75Office of Rail and Road] shall—

(a)notify the holder that—

(i)it is considering revoking that safety certificate or Part A or B of it and the reasons why;

(ii)within a period specified in the notice, which shall be not less than 28 days, the holder may make representations in writing to the [F75Office of Rail and Road] or, if the holder so requests, may make oral representations to the [F75Office of Rail and Road]; and

(b)consider any representations which are duly made and not withdrawn.

(4) Where the [F75Office of Rail and Road] revokes a safety certificate or Part A or B of it, it shall send to the holder with the notice of revocation a statement of the reasons why.

(5) Where—

(a)the [F75Office of Rail and Road] revokes Part B of a safety certificate; and

(b)Part A of that safety certificate is deemed to be Part A of a safety certificate pursuant to regulation 7(2) and was issued by the safety authority F76... in Northern Ireland,

then the [F75Office of Rail and Road] shall notify that safety authority as soon as reasonably possible of that revocation.

F77(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F78(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Revocation of safety authorisationU.K.

16.—(1) The [F79Office of Rail and Road] shall revoke a safety authorisation if it is satisfied that the holder is no longer satisfying the conditions of that safety authorisation and there is a significant risk arising as a result.

(2) In this regulation, “conditions” means—

(a)any part of the requirements relating to the safety management system—

(i)referred to in regulation 5(7) in relation to an operation carried out on the mainline railway; or

(ii)in regulation 6 in relation to an operation carried out on a transport system other than the mainline railway; or

(b)that the provisions adopted by the applicant are sufficient to meet any requirements that are necessary for the safe design, maintenance and operation of the infrastructure in question.

(3) Before revoking any safety authorisation, the [F79Office of Rail and Road] shall—

(a)notify the holder that—

(i)it is considering revoking that safety authorisation and the reasons why;

(ii)within a period specified in the notice, which shall be not less than 28 days, the holder may make representations in writing to the [F79Office of Rail and Road] or, if the holder so requests, may make oral representations to the [F79Office of Rail and Road]; and

(b)consider any representations which are duly made and not withdrawn.

(4) Where the [F79Office of Rail and Road] revokes a safety authorisation, it shall send to the holder with the notice of revocation a statement of the reasons why.

General provisions relating to safety certificates and safety authorisationsU.K.

17.—(1) Where an application is made under these Regulations for a safety certificate or safety authorisation or for an amended safety certificate or safety authorisation which relates to an operation on the mainline railway and on a transport system other than the mainline railway then—

(a)one application may be made for that operation but it shall be split into separate parts for the mainline railway and the other transport system; and

(b)these Regulations shall apply to those parts as if they were a mainline application and a non-mainline application,

except that where the same information is required it need not be stated twice.

(2) A transport operator may make one application for an operation in relation to which he requires both a safety certificate and a safety authorisation or an amended safety certificate and an amended safety authorisation but—

(a)such application shall be split into separate parts relating to the safety authorisation and the safety certificate; and

(b)these Regulations shall apply to those parts as if they were an application for a safety authorisation and a safety certificate or an amended safety authorisation and an amended safety certificate,

except that where the same information is required it need not be stated twice.

(3) Where—

(a)an applicant sends—

(i)an application for a safety certificate or safety authorisation, an amended safety certificate or safety authorisation; or

(ii)further information to the [F80Office of Rail and Road] pursuant to paragraph (5); or

(b)the holder of a safety certificate or a safety authorisation sends a notice pursuant to regulation 13 F81...,

then he shall at the same time either copy it to any affected party or notify any affected party without delay that the application or further information has been sent and of the address of the website where those documents may be accessed and how they may be accessed and, in either case, shall notify such a party, where the document in question is an application, of the time for making representations to the [F80Office of Rail and Road] pursuant to paragraph (6).

(4) Where the [F80Office of Rail and Road] issues a—

(a)safety certificate or safety authorisation, other than to an operator of last resort;

(b)notice amending a safety certificate or safety authorisation;

(c)notice refusing an application for a safety certificate or a safety authorisation or an amended safety certificate or safety authorisation;

(d)direction to apply for an amended safety certificate or safety authorisation;

(e)notice that it is considering revoking a safety certificate or a safety authorisation; or

(f)notice revoking a safety certificate or a safety authorisation,

then the [F80Office of Rail and Road] shall at the same time either copy it and the reasons given for the [F80Office of Rail and Road]'s decision to any affected party or notify any affected party that the relevant document has been issued and of the address of the website where those documents and the reasons given for the decision may be accessed and how they may be accessed and, in either case, shall notify such a party, where the document in question is a notice that it is considering revocation as mentioned in sub-paragraph (e), of the time for making representations to the [F80Office of Rail and Road] pursuant to paragraph (6).

(5) The [F80Office of Rail and Road] may upon receipt of—

(a)an application for a safety certificate or safety authorisation;

(b)an application for an amended safety certificate or safety authorisation;

(c)any further information requested under this paragraph,

request as soon as reasonably possible such further information as it may reasonably require and the applicant shall provide such information as soon as reasonably possible F82....

(6) Where an affected party receives a copy of an application or a notice relating to revocation pursuant to paragraph (3)(a) or (4)(e) then—

(a)he may make any representations in writing to the [F80Office of Rail and Road], which are relevant to the application or notice, within 28 days of the date of issue of the application or notice in question; and

(b)the [F80Office of Rail and Road] shall consider any such representations in making its decision.

[F83(7) If a request for information is made under paragraph (5), the period of 4 months for the [F80Office of Rail and Road] to make a decision referred to in regulations 7(3), 8(4), 10(2) and 11(3) shall not start to run until the date of receipt of the last information requested.]

F84(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9) An employer who makes an application for a safety certificate or safety authorisation, an amended safety certificate or safety authorisation or sends a notice to the [F80Office of Rail and Road] under regulation 13 F85... shall, in relation to its preparation, consult—

(a)safety representatives within the meaning of regulation 2(1) of the Safety Representatives and Safety Committees Regulations 1977 M13; and

(b)such other employees as he is required to consult by virtue of regulation 3 of the Health and Safety (Consultation with Employees) Regulations 1996 M14.

(10) In this regulation, “affected party” means for a document sent or issued in relation to—

(a)a safety certificate or an application for a safety certificate—

(i)any relevant infrastructure manager;

(ii)a trade union which is a recognised trade union within the meaning of regulation 2(1) of the Safety Representatives and Safety Committees Regulations 1977 in relation to employees of the operator or applicant employed in relation to the operation in question; and

(iii)the [F86Passengers’ Council] and the London Transport Users' Committee where, in each case, it represents passengers' interests in relation to the operation in question; and

(b)a safety authorisation or an application for a safety authorisation—

(i)any transport undertaking who is or will be operating on the infrastructure of the applicant or infrastructure manager in question;

(ii)any infrastructure manager who manages infrastructure which interfaces or will interface with the infrastructure of the infrastructure manager in question; and

(iii)any person falling within paragraph (10)(a)(ii) or (iii).

Notification to the European Railway Agency regarding safety certificates and safety authorisations relating to the mainline railwayU.K.

F8718.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F88Maintenance of vehicles on the mainline railwayU.K.

18A.—[F89(1) No person may place in service or use a vehicle on the mainline railway unless that vehicle has an entity in charge of maintenance assigned to it, and that entity in charge of maintenance—

(a)is registered in relation to that vehicle in the National Vehicle Register; and

[F90(b)where the vehicle is a freight wagon, holds—

(i)a UK-issued ECM certificate;

(ii)a cross-border UK-issued ECM certificate; or

(iii)if that person is compliant with the requirements set out in paragraphs (1ZA) or (1ZB), an EU ECM certificate;]]

[F91(1ZA) Before 1st November 2023, a person is compliant with the requirements referred to in paragraph (1)(b)(iii) if that person—

(a)places in service or uses a vehicle in circulation on railway lines across the territory of two states;

(b)has an EU ECM certificate that was issued by a certification body accredited by the UK national accreditation body; or

(c)has made an application to a certification body for a UK-issued ECM certificate and the certification body has not yet taken a decision on the application.

(1ZB) On or after 1st November 2023, a person is compliant with the requirements referred to in paragraph (1)(b)(iii) if that person—

(a)places in service or uses a vehicle in circulation on railway lines across the territory of two states; or

(b)has an EU ECM certificate that was issued by a certification body accredited by the UK national accreditation body.]

[F92(1A) No person may use a vehicle to operate a cross-border service unless that vehicle has an entity in charge of maintenance assigned to it, and that entity in charge of maintenance—

(a)is registered in relation to that vehicle in the National Vehicle Register; and

(b)holds either an EU ECM certificate valid on the terms of its original issue or a cross-border UK-issued ECM certificate, where it is required to do so in accordance with the retained 2019 EU ECM Regulation.]

(2) Each entity in charge of maintenance must ensure, by means of a system of maintenance, that a vehicle for which it is in charge of maintenance is in a safe state of running.

(3) The requirement for a system of maintenance referred to in paragraph (2) is that a vehicle must be maintained in accordance with—

(a)the maintenance file for the vehicle;

(b)applicable maintenance rules; and

(c)applicable [F93NTSNs].

[F94(4) Schedule 9 (applications for UK-issued ECM certificates by entities in charge of maintenance) and Schedule 10 (system of certification of entities in charge of maintenance in respect of Great Britain) have effect.]

[F95(5) In this regulation, “UK national accreditation body” means the body which was appointed by the Secretary of State in accordance with Regulation (EC) No 765/2008 of the European Parliament and of the Council setting out the requirements for accreditation and market surveillance relating to the marketing of products and repealing Regulation (EEC) No 339/93, as it had effect in EU law before IP completion day.]]

[F96Common safety targetsU.K.

18B.  The Office of Rail and Road must assess the achievement of common safety targets in accordance with Schedule 11 (common safety targets), which has effect.]

PART 3U.K.GENERAL DUTIES

Risk assessmentU.K.

19.—(1) A transport operator shall—

(a)make a suitable and sufficient assessment of the risks to the safety of any persons for the purpose of identifying the measures he needs to take to ensure safe operation of the transport system in question insofar as this is affected by his operation; and

(b)implement the measures referred to in sub-paragraph (a).

(2) When carrying out an assessment or a review under paragraph (1) or (3), a transport operator shall apply the CSMs to the extent that the operation is carried out on the mainline railway.

(3) Any assessment under paragraph (1) shall be reviewed by the transport operator who made it if—

(a)there is a reason to suspect that it is no longer valid; or

(b)there has been a significant change in the matters to which it relates and where as a result of any such review changes to an assessment are required,

the transport operator concerned shall make them, and implement any changes to the measures identified pursuant to paragraph (1) as a result of the review.

(4) The transport operator shall record in relation to any assessment or review under this regulation—

(a)the assessment process undertaken, the methods of any calculation used and any assumptions made; and

(b)the significant findings of the risk assessment including the measures in place and any further measures the transport operator intends to take to ensure safe operation of the transport system in relation to his operation.

(5) Every transport operator shall make and give effect to such arrangements as are appropriate, having regard to the nature of his activities and the extent of the undertaking, for the effective planning, organisation, control, monitoring and review of the measures identified pursuant to paragraph (1) or (3) and shall record such arrangements.

Annual safety reportsU.K.

20.—[F97(1) Subject to paragraph (2), any transport operator who carries out operations on the mainline railway shall send to the [F98Office of Rail and Road] an annual safety report in respect of its operations on the mainline railway relating to the previous calendar year, which shall contain—

(a)information on how the transport operator’s safety targets, referred to in paragraph 2(b) of Schedule 1, are met;

(b)the results achieved through putting the transport operator’s safety plans, referred to in paragraph 2(b) of Schedule 1, into effect;

(c)statistics for the common safety indicators F99... insofar as they are relevant to the operations in question;

(d)the findings of safety auditing carried out pursuant to the procedures referred to in paragraph 2(k) of Schedule 1; and

(e)comments on any deficiencies or malfunctions relating to the running of vehicles or the management of infrastructure relating to the operation in question that may be relevant to the safety of that transport system,

and where an operation is carried out in part on the mainline railway and in part on another transport system the report shall include only information in respect of the part carried out on the mainline railway.]

(2) The first annual report required under paragraph (1) shall be sent by 30th June 2007 and subsequent reports by 30th June in each subsequent calendar year.

F100(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F101(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F102(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F103(6) For the purposes of paragraph (1)(c), the common safety indicators are those laid down in paragraphs 1.1 to 6.2 of, and the Appendix to, Annex I to the Directive, save that the Appendix is to be read with the following modifications—

(a)in paragraph 1.2, for “EUR 150 000” substitute “ £170,000 ”;

(b)in paragraph 5.1, for “Member State” substitute “ United Kingdom ”; and

(c)in paragraphs 7.3 and 7.4, for “railway network in Member States, whose scope is set out in Article 2” substitute “ mainline railway as defined in the Railways and Other Guided Transport Systems (Safety) Regulations 2006 ”]

Sending, issuing, and keeping of documents and making them available for public inspectionU.K.

21.—(1) Any application, notice, report or any other information sent to the [F104Office of Rail and Road] or records made pursuant to these Regulations shall be in writing and in English.

(2) Any certificate, authorisation, notice, direction, request for information, statement or report issued by the [F104Office of Rail and Road] pursuant to these Regulations shall be in writing and in English.

(3) An applicant who makes an application in respect of a safety certificate or a safety authorisation pursuant to regulations 7, 9, 10 or 12 shall when sending the application, notify the [F104Office of Rail and Road] of an address F105... for the purposes of this regulation (“notified address”).

(4) Subject to paragraphs (5) and (6), a transport operator shall keep at the notified address in relation to the operation in question—

(a)the safety certificate or safety authorisation issued in response to his application for such certificate or authorisation and the documentation referenced in that safety certificate or safety authorisation;

(b)any notice of amendment issued pursuant to Part 2 of these Regulations F106... in relation to his safety certificate or safety authorisation;

(c)any records he is required to make pursuant to regulation 19(4) and (5);

(d)any annual safety report sent to the [F104Office of Rail and Road] under regulation 20(1);

(e)any notification of changes or of a revision notified to the [F104Office of Rail and Road] under regulation 13 F107...; and

(f)a record of any findings of internal safety auditing carried out pursuant to the procedures referred to in paragraph 2(k) of Schedule 1 and of any action taken in consequence of such auditing,

or a hard or electronic copy of such documents.

(5) The documents referred to in paragraph (4) shall be kept as long as they—

(a)are or are a copy of the current safety certificate or safety authorisation or a notice of amendment thereof;

(b)are or are a copy of a notification of a major change or a revision which is relevant to the current operation of the transport undertaking;

(c)relate to the information on the basis of which the [F104Office of Rail and Road]'s acceptance referred to in regulation 7(4) or 10(3), as the case may be, was made in relation to a current safety certificate or safety authorisation; or

(d)relate to a risk assessment, as reviewed from time to time, carried out pursuant to regulation 19.

(6) The documents kept pursuant to paragraph (4)(d) or (4)(f) shall be kept for 5 years and the documents kept pursuant to sub-paragraphs (a), (b), (d) and (e) of paragraph (4) shall, subject to paragraph (7), be made available for public inspection at the notified address at reasonable times and on reasonable notice.

(7) Nothing in paragraph (6) shall require the disclosure of any information—

(a)relating to a named individual;

(b)which is commercially confidential; or

(c)which is detrimental to national security or to the security of the transport system in question.

(8) A person who has a notified address may subsequently notify the [F104Office of Rail and Road] of a different address F108... and in this case references in this regulation to the notified address shall be construed as a reference to the last address notified under this paragraph.

Co-operationU.K.

22.—(1) Every person to whom this paragraph applies shall co-operate as far as is necessary with a transport operator to enable him to comply with the provisions of these Regulations.

(2) Paragraph (1) applies to—

(a)any transport operator whose operations may affect or may be affected by operations carried out by the duty holder; and

(b)an employer of persons or a self-employed person carrying out work on or in relation to premises or plant owned or controlled by the duty holder.

(3) Every transport operator shall co-operate, insofar as is reasonable, with any other transport operator who operates on the same transport system where that other transport operator is taking action to achieve the safe operation of that transport system.

(4) In paragraph (2) “duty holder” means a transport operator referred to in paragraph (1).

PART 4E+W+N.I.SAFETY CRITICAL WORK

Interpretation and application of Part 4U.K.

23.—(1) In this Part—

“assessor” means any person who is competent to make an impartial and objective assessment of another person's competence or fitness to carry out safety critical work, and related expressions shall be construed accordingly;

“controller of safety critical work” means any person controlling the carrying out of safety critical work on a transport system or in relation to a vehicle used on a transport system;

“fitness” means physical and mental fitness, and related expressions shall be construed accordingly;

“installation” includes the installation, examination or testing of components;

“maintenance” includes repair work, reconditioning, examination, testing or alteration;

“operator” means any person carrying on an undertaking which includes a transport system or any part of it or the provision of transport services on such a system;

“safety critical task” means—

which could significantly affect the health or safety of persons on a transport system;

“safety critical work” means any safety critical task carried out by any person in the course of their work F109...on or in relation to a transport system and related expressions shall be construed accordingly; F110...

“telecommunications system” means any telecommunications system provided by a transport operator or its associated equipment, which is capable of controlling or affecting the movement of a vehicle, or which is provided by a transport operator for purposes which include calling the emergency services[F111; and

“work” includes voluntary work].

(2) Any reference in this Part to a safety critical worker or a controller of safety critical work supervising and checking the work of another person is to a safety critical worker or a controller of safety critical work who has been assessed as competent in the tasks to which that supervision and checking relates.

(3) Any reference in this Part to a person controlling the carrying out of safety critical work is a reference to a person managing, supervising or controlling that work in connection with the carrying on by him of a trade, business or other undertaking (whether or not for profit).

(4) This Part shall not apply to or in relation to—

(a)the police, ambulance or fire service when they are carrying out their emergency functions on or in relation to a transport system; and

(b)any voluntary worker for a period of twelve months from the date of the coming into force of this Part.

Competence and fitnessU.K.

24.—(1) Every controller of safety critical work shall, so far as is reasonably practicable, ensure that a person under his management, supervision or control, with the exception of where that person is receiving practical training in a safety critical task, only carries out safety critical work where—

(a)that person has been assessed as being competent and fit to carry out that work following an assessment by an assessor;

(b)there is an accurate and up to date record in writing of that person's competence and fitness which references any criteria for determining competence and fitness against which that assessment of competence was made;

(c)the record, or an accurate summary of the record referred to in sub-paragraph (b) is available for inspection, on reasonable request, by any other controller of safety critical work or any operator who may be affected by any safety critical work carried out or to be carried out by that person, for the purposes of establishing that person's competence and fitness to carry out safety critical work; and

(d)there are in place [F112suitable and sufficient] arrangements for monitoring the competence and fitness of that person.

(2) Every controller of safety critical work shall without unreasonable delay review any person's competence or fitness assessment where—

(a)they have reason to doubt the competence or fitness of a person to carry out that safety critical work; or

(b)there has been a significant change in the matters to which the assessment relates,

and where, as a result of any such review a reassessment of competence or fitness is required, that reassessment of competence or fitness shall be carried out to ensure that the requirements of paragraph (1) are met.

(3) Where a reassessment of competence or fitness under paragraph (2) is required, the controller of safety critical work shall, so far as is reasonably practicable ensure that, as a result, the health and safety of persons on a transport system is not prejudiced.

FatigueU.K.

25.—(1) Every controller of safety critical work shall have in place arrangements to ensure, so far as is reasonably practicable, that a safety critical worker under his management, supervision or control does not carry out safety critical work in circumstances where he is so fatigued or where he would be liable to become so fatigued that his health or safety or the health or safety of other persons on a transport system could be significantly affected.

(2) The arrangements in paragraph (1) shall be reviewed by the controller of safety critical work where he has reason to doubt the effectiveness of those arrangements.

Co-operation requirements for safety critical workU.K.

26.—(1) Every controller of safety critical work to whom this Part applies shall co-operate as far as is necessary with any other controller of safety critical work or any operator to enable that other controller of safety critical work to comply with the provisions of this Part.

(2) Every person carrying out safety critical work shall, as regards any requirement imposed on any controller of safety critical work under this Part, co-operate with that controller of safety critical work so far as is necessary to enable that requirement to be performed or complied with.

PART 5U.K.MISCELLANEOUS

AppealsU.K.

27.—(1) A person who is aggrieved by a—

(a)decision of the [F113Office of Rail and Road] to refuse his application for—

[F114(i)a safety certificate, a safety authorisation or [F115an EU ECM certificate, a cross-border UK-issued ECM certificate or a UK-issued ECM certificate];]

(ii)an amended safety certificate or safety authorisation;

(b)direction of the [F113Office of Rail and Road] to make an application to amend his safety certificate or safety authorisation; F116...

(c)decision of the [F113Office of Rail and Road] to revoke his—

(i)safety certificate or part of it; or

(ii)safety authorisation,

[F117[F118(d)decision of the Office of Rail and Road, concerning his EU ECM Certificate taken pursuant to either—

(i)Article 7(3), (4) or (7) of the 2011 EU ECM Regulation; or

(ii)Article 7(5) or (8) or 8(2) of the 2019 EU ECM Regulation;]

[F119(dd)decision of the Office of Rail and Road taken pursuant to paragraph 7(3), (4) or (7) of Schedule 10 concerning his UK-issued ECM certificate;

(de)decision of the Office of Rail and Road, concerning his cross-border UK-issued ECM certificate, taken pursuant to Article 7(5) or (8) or 8(2) of the retained 2019 EU ECM Regulation; or]

(e)determination of the [F113Office of Rail and Road] under regulation 2A or a decision of the [F113Office of Rail and Road] under that regulation to revoke or vary such a determination,]

may appeal to the Secretary of State.

[F120(1A) A person who is aggrieved by—

(a)a decision taken either—

(i)to refuse an application for an EU ECM certificate or taken pursuant to Article 7(4) or (7) of the 2011 ECM Regulation by a certification body accredited or recognised in Great Britain for the purposes of the 2011 EU ECM Regulation; or

(ii)to refuse an application for an EU ECM certificate or taken pursuant to Article 7(8) or 8(2) of the 2019 EU ECM Regulation by a certification body accredited or recognised in Great Britain for the purposes of the 2019 EU ECM Regulation;

(b)a decision of a certification body accredited or recognised for the purposes of Schedule 10 either to refuse an application for a UK-issued ECM certificate or taken by that body pursuant to paragraph 7(3), (4) or (7) of Schedule 10; or

(c)a decision of a certification body accredited or recognised for the retained 2019 EU ECM Regulation, either to refuse an application for a cross-border UK-issued ECM certificate or taken by that body pursuant to Article 7(3), (4) or (7) of the retained 2019 EU ECM Regulation,

may appeal to the Secretary of State.]

[F121(1B) For the purposes of an appeal under paragraph (1A), references to the Office of Rail and Road in this regulation are to be construed as references to the relevant certification body (except for paragraph (7), which does not apply to such appeal).]

(2) For the purposes of [F122paragraphs (1) and (1A)] the Secretary of State may, in such cases as he considers it appropriate to do so, having regard to the nature of the questions which appear to him to arise, direct that an appeal under that paragraph shall be determined on his behalf by a person appointed by him for that purpose.

(3) Before the determination of an appeal the Secretary of State shall ask the appellant and the [F113Office of Rail and Road] whether they wish to appear and be heard on the appeal and—

(a)The appeal may be determined without a hearing of the parties if both of them express a wish not to appear and be heard as aforesaid;

(b)The Secretary of State shall, if either of the parties expresses a wish to appear and be heard, afford to both of them an opportunity of doing so.

(4) The Tribunals and Inquiries Act 1992 shall apply to a hearing held by a person appointed in pursuance of paragraph (2) to determine an appeal as it applies to a statutory inquiry held by the Secretary of State, but as if in section 10(1) of that Act (statement of reasons for decisions) the reference to any decision taken by the Secretary of State included a reference to a decision taken on his behalf by that person.

[F123(4A) A hearing held by a person appointed in pursuance of paragraph (2) shall be a statutory inquiry for the purposes of Schedule 7 to the Tribunals, Courts and Enforcement Act 2007 (Administrative Justice and Tribunals Council).]

(5) A person who determines an appeal under this regulation on behalf of the Secretary of State and the Secretary of State, if he determines such an appeal, may give such directions as he considers appropriate to give effect to his determination.

(6) The Secretary of State may pay to any person appointed to hear or determine an appeal under paragraph (2) on his behalf such remuneration and allowances as the Secretary of State may with the approval of the [F124Treasury] determine.

(7) For the purposes of paragraph (1)(a), a failure by the [F113Office of Rail and Road] to make a decision on whether or not to issue or amend a safety certificate or safety authorisation within the four month period for making a decision calculated in accordance with regulation 17(7) shall be treated as a refusal of the application.

(8) The Health and Safety Licensing Appeals (Hearing Procedure) Rules 1974 M15, as respects England and Wales, and the Health and Safety Licensing Appeals (Hearing Procedure)(Scotland) M16 Rules 1974, as respects Scotland, shall apply to an appeal under paragraph (1) as they apply to an appeal under [F125section 44(1) of the Health and Safety at Work etc. Act 1974], but with the modification that references to a licensing authority are to be read as references to the [F113Office of Rail and Road].

(9) Where an appeal is made under paragraphs (1)(a) or (1)(c), the decision in question shall be suspended pending the final determination of the appeal.

OffencesU.K.

28.  A failure to discharge a duty placed on the [F126Office of Rail and Road] by these Regulations shall not be an offence under section 33(1)(c) of the Health and Safety at Work etc. Act 1974.

Transitional provisions and savingsU.K.

29.—(1) Any competence and fitness assessments made pursuant to regulation 3 of the Railways (Safety Critical Work) Regulations 1994 M17 shall have effect as if they were made under Part 4, provided that the assessment would, at the time it was made, have met the requirements for impartiality and objectivity in that Part.

(2) Notwithstanding the revocation of ROTS pursuant to regulation 34, and subject to paragraph (6) ROTS shall, up to and including 1st October 2008, continue in force as they had effect on 30th September 2006 for the purposes of—

(a)determining applications for approval made;

(b)issuing a written consent for the purposes set out in regulation 4(4)(b) of ROTS in relation to new or altered works, plant or equipment for which an application for approval has been made;

(c)making notices dispensing with or requiring compliance with certain provisions of ROTS under regulation 10(1)(a) or 11(1)(a) of ROTS in relation to new or altered works, plant or equipment, for which an application for approval has been made,

to the [F127Office of Rail and Road] in relation to a relevant transport system before 1st October 2006.

(3) Where an approval is issued by the [F127Office of Rail and Road] in response to an application for approval made in relation to a transport system —

(a)before 1st October 2006 but where the new or altered works, plant or equipment are placed in service within the meaning of regulation 5(6) and 6(5) on or after that date; or

(b)on or before 1st October 2008 pursuant to paragraph (2),

in relation to new or altered works, plant or equipment that is relevant infrastructure or a vehicle then such works, plant or equipment shall be deemed to satisfy the requirements of regulations 5(4) and 6(4).

(4) Where a written consent is issued by the [F127Office of Rail and Road] in relation to new or altered works, plant or equipment which is relevant infrastructure or a vehicle in relation to a transport system—

(a)under regulation 4(4)(b)(i) of ROTS on or before 1st October 2008 pursuant to paragraph (2) then such relevant infrastructure or vehicle shall be deemed to satisfy the requirements of regulations 5(4) and 6(4) ; or

(b)under regulation 4(4)(b)(ii) of ROTS on or before 1st October 2008 pursuant to paragraph (2) then no regard shall be taken of the use of such relevant infrastructure or vehicle for the purposes for which the written consent relates when determining whether the relevant infrastructure or vehicle has been placed in service in accordance with regulations 5(6) and 6(5).

(5) In this regulation—

(a)“application for approval” means an application for approval made under regulation 5, 6 or 7 of ROTS;

(b)“altered works, plant or equipment” shall have the meaning in regulation 2(a) of ROTS; and

(c)“relevant transport system” shall have the meaning in regulation 2(a) of ROTS.

(6) For the purposes of heritage railways and tramways, all references in this regulation to 1st October 2006 shall be read as if those references were in each case to 1st October 2008, and all references to 1st October 2008 shall be read as if those references were in each case to 1st October 2010.

F128(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

ExemptionsU.K.

30.—(1) Subject to paragraphs (2) and (3), the [F129Office of Rail and Road] may, by certificate in writing, exempt any person or class of persons or any transport system or part of a transport system from any requirement or prohibition imposed by these Regulations.

(2) The [F129Office of Rail and Road] shall not grant any such exemption in relation to any requirement or prohibition imposed by Part 2 or 3 in relation to an operation carried out on the mainline railway other than an exemption to an operator of last resort from the requirement to copy the documents referred to in regulation 17(3)(a)(i) and (ii) to an affected party or to notify an affected party as the case may be.

(3) The [F129Office of Rail and Road] shall not grant any such exemption unless, having regard to the circumstances of the case, and in particular to—

(a)the conditions, if any, which it proposes to attach to the exemption; and

(b)any other requirements imposed by or under any enactment which applies to the case,

it is satisfied that the health and safety of persons who are likely to be affected by the exemption will not be prejudiced in consequence of it.

(4) The Secretary of State for Defence may, in the interests of national security, by a certificate in writing exempt any person or class of persons from any requirement or prohibition imposed by these Regulations.

(5) An exemption granted pursuant to paragraph (1), (2) or (4) may be granted subject to conditions and to a limit of time.

(6) An exemption granted pursuant to—

(a)paragraph (1) or (2) may be revoked by the [F129Office of Rail and Road]; and

(b)paragraph (4) may be revoked by the Secretary of State for Defence,

at any time by a further certificate in writing.

Defence of due diligenceU.K.

31.—(1) Subject to the following provisions of this regulation, in any proceedings against any person for an offence under [F130regulation 5(4), 6(4) or 18A(2)] it shall be a defence for that person to show that he took all reasonable steps and exercised all due diligence to avoid committing the offence.

(2) Where in any proceedings against any person for such an offence the defence provided in paragraph (1) involves an allegation that the commission of the offence was due to—

(a)the act or default of another; or

(b)reliance on information given by another,

that person shall not, without the leave of the court, be entitled to rely on the defence unless, within a period ending seven clear days before the hearing of the proceedings (or in Scotland, the trial diet), he has served a notice under paragraph (3) on the person bringing the proceedings.

(3) A notice under this paragraph shall give such information identifying, or assisting in the identification of, the person who committed the act or default or gave the information as is in the possession of the person serving the notice at the time he serves it.

(4) A person shall not be entitled to rely on the defence provided by paragraph (1) by reason of his reliance on information supplied by another, unless he shows that it was reasonable in all the circumstances for him to have relied upon the information, having regard in particular—

(a)to the steps which he took, and those which might reasonably have been taken, for the purpose of verifying the information; and

(b)to whether he had any reason to disbelieve the information.

Amendment of ROTSU.K.

32.  In regulation 4 of ROTS—

(a)for paragraph (2A) substitute—

“(2A) Approval shall not be required in relation to any interoperability constituent or any subsystem to the extent that the interoperability constituent or subsystem, as the case may be, has been authorised before 2nd April 2006 under regulation 14 of the Railways (Interoperability) (High-Speed) Regulations 2002 or is subject to the requirement for authorisation under regulation 4(1)(a) of the Railways Interoperability Regulations 2006.”

(b)for paragraph (5) substitute—

“(5) In this regulation, “interoperability constituent” and “subsystem” have the same meaning as in the Railways (Interoperability) Regulations 2006.”

Consequential amendmentsU.K.

33.  The Regulations referred to in Schedule 6 shall be amended as set out in that Schedule.

RevocationU.K.

34.  The Regulations referred to in column (1) of Schedule 7 are revoked to the extent specified in column (3) of that Schedule.

[F131ReviewU.K.

34A.—(1) Before the end of each review period, the Secretary of State must—

(a)carry out a review of these Regulations;

(b)set out the conclusions of the review in a report; and

(c)publish the report.

(2) In carrying out the review the Secretary of State must, so far as is reasonable, have regard to how the Directive is implemented in other member States.

(3) The report must in particular—

(a)set out the objectives intended to be achieved by the regulatory system established by these Regulations;

(b)assess the extent to which those objectives are achieved; and

(c)assess whether those objectives remain appropriate and, if so, the extent to which they could be achieved with a system that imposes less regulation.

(4) “Review period” means—

(a)the period of five years beginning with the day on which the Railways and Other Guided Transport Systems (Safety) (Amendment) Regulations 2011 come into force; and

(b)subject to paragraph (5), each successive period of five years.

(5) If a report under this regulation is published before the last day of the review period to which it relates, the following review period is to begin with the day on which that report is published.]