Vol. 148, No. 27 — December 31, 2014

Registration

SOR/2014-308 December 12, 2014

CANADA MARINE ACT

Regulations Amending the Port Authorities Operations Regulations

P.C. 2014-1463 December 12, 2014

His Excellency the Governor General in Council, on the recommendation of the Minister of Transport, pursuant to paragraphs 62(1)(b), (d) and (e) of the Canada Marine Act (see footnote a), makes the annexed Regulations Amending the Port Authorities Operations Regulations.

REGULATIONS AMENDING THE PORT AUTHORITIES OPERATIONS REGULATIONS

AMENDMENT

1. Section 31.1 of the Port Authorities Operations Regulations (see footnote 1) and the heading before it are replaced by the following:

CONTAINER TRUCKING — PORT METRO VANCOUVER

31.1 (1) The following definitions apply in this section.

“Authority” means the Vancouver Fraser Port Authority. (Administration)

“authorization” means a written authorization issued by the Authority to transport containers by truck in Port Metro Vancouver. (autorisation)

“Container Trucking Act” means the British Columbia Container Trucking Act, S.B.C. 2014, c. 28. (loi sur le transport de conteneurs par camion)

“Port Metro Vancouver” means the Authority’s port. (Port Metro Vancouver)

(2) Subject to subsections (5) and (6), the Authority shall not permit a truck to gain access to Port Metro Vancouver for the purpose of transporting a container unless

(3) An authorization is valid if the holder complies with, or ensures that the holder’s drivers comply with, any of the following requirements that are established by the Authority and specified in the authorization:

(4) For greater certainty, a licence referred to in paragraph (2)(b) includes an authorization that is deemed to be a licence under the Container Trucking Act.

(5) Subsection (2) does not apply if there is an emergency that poses a risk to the safety of persons or property in Port Metro Vancouver or a risk to the environment and if containers must be transported by truck to mitigate or help mitigate that risk.

(6) Paragraphs (2)(b) and (c) do not apply in respect of a truck that is transporting a container to or from a location outside of the Lower Mainland of British Columbia.

APPLICATION PRIOR TO PUBLICATION

2. For the purposes of paragraph 11(2)(a) of the Statutory Instruments Act, these Regulations apply according to their terms before they are published in the Canada Gazette.

COMING INTO FORCE

3. These Regulations come into force on the day on which the Container Trucking Act, S.B.C. 2014, c. 28 comes into force, but if they are registered after that day, they come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

The Vancouver-Fraser Port Authority, which uses the trade name Port Metro Vancouver (the Port), currently licenses trucks that carry containers to and from port property for delivery in the Lower Mainland of British Columbia (B.C.). Section 31.1 of the Port Authorities Operations Regulations (the Regulations) prevents the Port from allowing trucks to access its property to move a container unless it has issued the truck operator a licence and the holder of the licence complies with certain minimum conditions, including minimum rates of remuneration and fuel surcharges.

As part of the Joint Action Plan (the Action Plan), negotiated to end a trucking dispute at the Port in early 2014, the Province of British Columbia (the Province) introduced legislation (the Container Trucking Act) [the Act] to regulate the container trucking sector in the Lower Mainland, which is expected to come into force in December 2014. The legislation creates an obligation on persons that provide prescribed container trucking services in B.C. to hold a licence, issued by the Province, to transport containers by truck within certain areas of the province, including the Port. The Act provides a general framework for the issuance, amendment, cancellation and suspension of trucking licences, the setting of rates of remuneration, the conduct of audits and investigations, and the issuance of penalties for non-compliance.

The Regulations must be amended to align with the new provincial legislative and regulatory regime, which includes the licensing of container trucks.

Background

Trucking services at the Port are provided by trucking companies and independent owner-operators. Trucking companies provide services directly to the shipper, receiver, importer or exporter. Independent owner-operators own a truck and contract their services to trucking companies. There are currently approximately 800 owner-operators who provide services at the Port.

Truck operators transport containers into, from, and within the Port, to and from warehouses and distribution centres. Drivers, both employees of companies and owner-operators, can be unionized or non-unionized.

Section 31.1 of the existing Regulations places a legal obligation on the Port to prohibit access to a container truck unless the Port has issued a licence, and the holder of the licence is in compliance with a minimum set of conditions.

One of the conditions of the licence is the minimum rates of remuneration that must be paid to an independent owner-operator of a truck. The rates cannot be less than the rates that are set out in the collective agreement that is binding on the owner-operator, or if there is no such agreement, then those set out in an applicable law. If there is no collective agreement and no applicable law, then the rates are those set out in the “Memorandum of Agreement between the Trucking Companies (Owners/Brokers) and the Vancouver Container Truckers’ Association,” dated July 29, 2005 (known as the MOA). The MOA is referenced in the Regulations.

On February 26, 2014, a work stoppage by container truck drivers shut down the Port for several weeks. Their main concerns were the long wait times at port terminals and rates of pay that were less than those prescribed in the Regulations and collective agreements. This disruption affected regional and national supply chains which are critical to the national economy and Canada’s international trade.

To respond to the issues that were raised by the trucking industry, the Action Plan was developed by the Government of Canada, the Province of British Columbia, the Port and trucking industry stakeholders in order to restore stability to the container trucking sector. Stabilizing port operations maintains the Port’s reputation as a reliable component of the Asia-Pacific Gateway and the associated international supply chains that serve Canada’s international trade. Container truck drivers returned to work on March 27, 2014.

As part of the implementation of the Action Plan, the Province introduced the Container Trucking Act on October 23, 2014, to regulate container trucking in the Lower Mainland of BC. Through the Act, the Province will establish a licensing and rate regime for container trucks. The legislation will also create an Office of the Commissioner of Container Trucking. Provincial regulations made under the Act, which are expected to come into force on the same day as the legislation, set out the geographic areas and the type of truck movements which will be subject to the Act, as well as the rates of remuneration (including fuel surcharges) for such movements.

To address an oversupply of trucks, the Port is currently reforming its licensing system, which will reduce the number of companies and truckers and provide more stability in the industry. The Province will be assuming this licensing system once the Port’s reform is completed. To ensure a smooth transition from the existing Port licensing regime to the new provincial system, the Act will deem licences that are issued by the Port to be provincial licences.

During the transition period, which is expected to end on February 1, 2015, only the Port will be issuing licences. After the transition period, the Province will be the issuer of any new licences over and above those Port licences that have already been deemed to be provincial. The Port will continue to issue authorizations, as per the Regulations, that will allow a company and its associated trucks (operated by employee drivers or owner-operators with whom the company has a contractual relationship) to access Port property.

Objectives

The objective of this amendment is to ensure that the Regulations are compatible with the Province’s new Act and regulations, which regulate container trucking companies in the Lower Mainland of B.C.

Description

The amendments repeal current Port licensing provisions for container truckers that do not align with the Province’s legislation and regulations pertaining to rate regulation of owner-operators.

The amended Regulations require that the Port not allow a container truck to access port property unless the driver of a truck is employed by or is acting, either directly or indirectly, on behalf of a person who holds an authorization issued by the Port, and the person has a provincial licence to transport containers in the Port issued under the Act. The Port is required to refuse access if the provincial licence has been suspended.

The authorization issued by the Port, which allows trucks to gain access to Port property, is conditional upon Port requirements with respect to the appointment or reservation system for trucks and the identification of those trucks. These requirements are in place for safety and security purposes as well as to ensure the efficient movement of containers in and out of the Port and terminals.

The provincial Act will not apply to trucking outside the Lower Mainland. Therefore, the requirement to have a provincial licence does not apply in respect of a truck that transports containers from the port to a place outside the Lower Mainland of B.C. or vice versa. However, an authorization from the Port to access Port property is still required.

To deal with emergency situations that could require the Port to move a container on or off Port property quickly, the amended Regulations create an exception to the general rule that trucks must have a provincial licence. They allow the Port to give access to trucks without a provincial licence in order to respond to an immediate threat to the safety or security of persons, property or the environment.

The amendments specify that for the purposes of the Statutory Instruments Act, the Regulations apply according to their terms before they are published in the Canada Gazette, Part II. This will allow the Regulations to be enforced should there be a delay between the time they come into force and the time they are published in the Canada Gazette. This will be communicated to stakeholders in several ways: upon the coming into force of the Regulations, Transport Canada will email stakeholders directly and a notice will be posted on the Port’s Web site.

Finally, the amendments specify that the Regulations enter into force on the same date that the Act enters into force. The Act will be brought into force by the Province through an Order in Council.

“One-for-One” Rule

The “One-for-One” Rule does not apply to this amendment, as there is no change in administrative costs to businesses. None of the businesses involved in this regulatory amendment report to the Government of Canada in any capacity.

Small business lens

There are no costs associated with this amendment. Therefore, the small business lens does not apply, as the amendment does not increase the administrative or compliance burden of businesses.

Consultation

The Province and the Port were directly consulted in the fall of 2014 regarding this amendment and they are supportive of it.

With respect to consultations with trucking stakeholders, Transport Canada established the Drayage Steering Committee (members consisting of the federal and provincial governments, the Port, marine container terminals, Unifor and the United Truckers Association) soon after the Action Plan was negotiated in March 2014. Consultations continued until October 2014, when the Province introduced its legislation to regulate the container trucking sector in the Lower Mainland. All issues regarding the implementation of the Action Plan were discussed, including the new licensing regime, rates, and enforcement.

In addition, as per the Action Plan, Transport Canada engaged Vince Ready (the labour mediator during the trucking dispute) and Corrin Bell in order to seek their support in issuing recommendations, through additional stakeholder consultations, on all points in the Action Plan. Interim recommendations were made in May 2014; however, based on ongoing concerns raised over remuneration to truckers outlined in the Action Plan, including for the movement of containers outside the Port area, additional recommendations were requested on this issue. Subsequently, broad consultations over a period of 90 days were conducted, and additional recommendations were made in September 2014.

The Port also conducted consultations on the reform of its licensing system throughout 2014 in which truckers and the industry were invited to comment on all aspects of the system.

Rationale

This amendment is required to support commitments made by the Government of Canada for the implementation of the Action Plan, which will bring increased stability to the Port’s operations. The amendment is required in order to ensure the Regulations are aligned with the Province’s legislation and regulations for the container trucking sector in the Lower Mainland of B.C., and which are expected to come into force in December 2014.

Implementation, enforcement and service standards

There are no additional requirements on the part of the federal government related to the implementation of the amendment. The Port is responsible for ensuring that no container truck gain access to port property without meeting certain conditions as set out in the Regulations, including proof of a licence that has been issued by the Province. The legislation introduced by the Province will include sanctions for trucking companies for non-compliance with the conditions of the provincial licence.

Pursuant to section 127 of the Canada Marine Act (CMA), which provides that a person who contravenes a provision of the CMA (other than section 107), or of the regulations made under the CMA or of the regulations made under paragraph 27(1)(a) of the CMA, is guilty of an offence and liable to a fine of not more than $5,000 in the case of an individual and of not more than $50,000 in the case of a corporation.

Contact

Joyce Henry
Acting Director General
Marine Policy
Transport Canada
Place de Ville, Tower C, 25th Floor
330 Sparks Street
Ottawa, Ontario
K1A 0N5