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31 2005

Railway Safety Act 2005

PART 4

Safety Management Systems and Safety Case

Commencement (Part 4).

38. —This Part shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes and different provisions.

Safety management systems and safety case.

39. —(1) For the purpose of complying with its duty under section 36 , a railway undertaking shall implement a safety management system and shall prepare a document (“safety case”) describing the components of such safety management system.

(2) A safety case shall achieve the following two objectives—

(a) it shall demonstrate that the railway undertaking has the ability to properly assess and effectively control risks to the safety of persons, in compliance with its general duty under section 36 , and

(b) it shall provide a working document by which the railway undertaking and the Commission can ensure that the safety systems described in the safety case are being properly implemented and continue to be maintained.

(3) To achieve the objectives referred to in subsection (2), a safety case shall contain at least the following components—

(a) a general description of the operations, or proposed operations, of the railway undertaking,

(b) a statement of the safety objectives and safety policy of the railway undertaking,

(c) an identification of the hazards arising from the operations of the railway undertaking, an assessment of the risks and details of the measures in place or proposed to mitigate such risks,

(d) the management and organisational arrangements necessary for the implementation and management of railway safety, and

(e) arrangements for monitoring, audit, and consequent review and revision of the safety case.

(4) The Commission may prepare and, after consultation with the Council, railway undertakings and such other persons as in the opinion of the Commission may be relevant, publish guidelines, from time to time, on the appropriate contents of a safety case and on appropriate technical principles and specifications, and a railway undertaking shall, for the purposes of complying with its duty under section 36 , in preparing a safety case or a revision to a safety case, and for the purposes of complying with sections 42 and 43, have regard to such guidelines.

(5) A safety case shall be submitted to the Commission in accordance with section 45 for acceptance by the Commission in accordance with section 46 .

(6) A railway undertaking shall consult with its staff and staff representatives in the preparation of a safety case.

(7) A safety case shall contain the title and office address of one person in a senior management position within the railway undertaking who is responsible for ensuring, and has sufficient authority to ensure, that the undertaking implements the provisions of its safety case.

Co-operation between railway undertakings.

40. —(1) Where the railway infrastructure of a railway undertaking is used by another railway undertaking to operate trains or where the activities of one railway undertaking may affect the safe operation of another railway undertaking, the railway undertakings concerned shall agree systems and procedures to ensure compliance with the duty imposed on each of them by section 36 .

(2) Railway undertakings shall co-operate with each other and provide to each other, without undue delay, all information reasonably required by the other party to enable the agreement in subsection (1) to be made.

(3) The Commission may give a direction to a railway undertaking requiring it to make an agreement under subsection (1) or to co-operate with another railway undertaking under subsection (2) and the railway undertaking shall comply with such direction.

(4) A railway undertaking may only refuse to give its agreement under subsection (1) where to give such agreement, in its reasonable opinion, would be failing in its duty under section 36 .

(5) An agreement under subsection (1) shall form a separate part of the safety case of each relevant railway undertaking.

(6) An agreement under this section shall include provisions for—

(a) monitoring, reviewing and updating of the agreement, and

(b) procedures for dealing with alleged non-compliance by any of the parties involved in the agreement.

(7) A railway undertaking shall not operate trains on the railway infrastructure of another railway undertaking, and an operator of railway infrastructure shall not give permission for such trains to operate, unless all parties have an agreement in accordance with subsection (1) and the safety case of each relevant railway undertaking has been accepted by the Commission in accordance with section 46 .

(8) Subsection (7) does not apply to a railway undertaking which operates a railway service immediately before the commencement of this section in respect of the period specified in sections 45(1) and 46(8).

(9) Where a railway undertaking is contravening subsection (7), the Commission may give a direction to it to cease operating its trains on the railway infrastructure of the other railway undertaking.

(10) A railway undertaking shall comply with a direction of the Commission given to it under this section.

(11) Where the Commission proposes to give a direction under this section, it shall notify the railway undertaking concerned of the proposal and the railway undertaking may, within 21 days of the notification, make representations to the Commission, which shall consider them.

(12) Where the Commission decides to give a direction under this section, the railway undertaking concerned may, within 21 days of notification of the decision, appeal to the High Court and the direction shall not take effect until the time allowed for such appeal has elapsed and, in the event of an appeal, until the appeal is determined or withdrawn.

(13) On hearing an appeal under subsection (12), the Court may either confirm or vary the decision of the Commission or allow the appeal.

(14) A decision of the High Court on an appeal under subsection (12) shall be final, save that, by leave of the Court, an appeal from the decision shall be to the Supreme Court on a specified point of law.

(15) A railway undertaking which, without reasonable excuse, fails to comply with a direction of the Commission under this section is guilty of an offence and is liable—

(a) on summary conviction, to a fine not exceeding €3,000, or

(b) on conviction on indictment, to a fine not exceeding €500,000.

International Services.

41. —(1) A railway undertaking first established in another Member State (“foreign railway”) which operates or proposes to operate an international service using only the infrastructure of another railway undertaking first established in the State, is deemed to have met the requirements of section 39 where—

(a) it has implemented a safety management system in compliance with the national requirements of the other Member State,

(b) it holds a valid safety certificate issued by the relevant competent authority in that other Member State, where it is required by that other Member State to do so, and

(c) it has an agreement under section 40 (1) with the railway undertaking first established in the State.

(2) A copy of a safety certificate or other evidence of compliance, as the case may be, issued or given to a foreign railway by the relevant competent authority of another Member State and a copy of any agreement under section 40 (1) between the foreign railway and a railway established in the State, together with any such other information as may be required by the Commission for the purposes of section 46 (2), is deemed to be a safety case for the purposes of this Part.

(3) A safety certificate issued to a foreign railway shall specify that the safety certificate is in respect of that element of the international service within the State only.

(4) A reference to an amendment to, a revision of, audit of, or compliance with a safety case in this Act shall, in respect of a foreign railway, be construed as an amendment to, revision of, audit of, or compliance with the agreement under section 40 (1) and of such other information provided by the railway undertaking under subsection (2).

(5) A foreign railway which is applying for a safety certificate in respect of that element of an international service within the State, shall provide to the Commission a copy of the safety case accepted by the competent authority of the other Member State or where no safety case was or is required by the other Member State, such documentary evidence of its safety management system as the Commission may direct.

(6) In this section “Member State” means a Member State of the European Communities.

Safety assessment of new works.

42. —(1) A railway undertaking shall not commence construction, installation or assembly of new works unless—

(a) it has submitted a safety assessment (referred to in this section as a “new works assessment”) to the Commission in such form and containing such information—

(i) as it considers appropriate to show to the satisfaction of the Commission the safety of the new works, or

(ii) as the Commission may set out in guidelines published in accordance with section 39 (4),

and

(b) the Commission has issued a communication under subsection (4).

(2) Where the Commission considers that the information provided in a new works assessment, or in a revised new works assessment under subsection (3), is not adequate, or the Commission is not satisfied—

(a) that the proposed method of construction, installation or assembly is adequate to ensure, in so far as reasonably practicable, the safety of persons during that construction, installation or assembly, or

(b) as to the expected operational safety of the new works,

the Commission shall serve a written notice to that effect on the railway undertaking and that notice shall set out the reasons for the Commission's decision to serve the notice.

(3) A railway undertaking in receipt of a notice under subsection (2) may submit a revised new works assessment which addresses the matters raised in such notice.

(4) Where, on the basis of the information contained in a new works assessment or in a revised new works assessment under subsection (3), the Commission is satisfied—

(a) that the proposed method of construction, installation or assembly is adequate to ensure, in so far as reasonably practicable, the safety of persons during that construction, installation or assembly, and

(b) as to the expected operational safety of the new works,

the Commission shall communicate in writing its acceptance of a new works assessment to the railway undertaking concerned.

(5) A railway undertaking shall obtain the consent of the Commission before bringing into operation the completed new works.

(6) A railway undertaking shall, within 21 days of receipt of a communication under subsection (4), amend its safety case to reflect the implications of the new works assessment.

(7) The Commission may at its discretion give a general or specific exemption from the requirements of this section where, in the opinion of the Commission, the new works are similar to works of a railway undertaking which are already in operation and where the safety case of the railway undertaking would not require revision when the new works are being brought into operation.

(8) A railway undertaking shall not commence commissioning of a new railway line or an addition to an existing railway line until—

(a) it has provided such information to the Commission, as may be specified by the Commission in any individual case, that, for the purposes of commissioning, demonstrates to the satisfaction of the Commission—

(i) the safety and suitability of the railway line, and

(ii) the adequacy of the systems and procedures to ensure safety of persons,

(b) the Commission has given its consent to such commissioning.

(9) The Commission may, where it considers it appropriate to do so, direct a railway undertaking to engage a suitably qualified person to independently assess a new works assessment or a revised new works assessment and the report of such person shall be submitted to the Commission at the same time as the submission under subsection (1) or subsection (3).

(10) Where a railway undertaking has altered its new works assessment on the basis of the report of a person engaged in accordance with subsection (9), a statement of the actions taken by the railway undertaking in response to the report, together with the report of the person and the new works assessment as amended, shall be submitted to the Commission.

(11) It shall be the duty of the Commission to ensure that it carries out its functions under this section as expeditiously as may be, and for that purpose, to take all such steps as are open to it to ensure that, in so far as is practicable, there are no avoidable delays at any stage in its performance of its functions under this section.

(12) Without prejudice to the generality of subsection (11), and subject to subsection (9), it shall be the objective of the Commission to ensure that it issues a notice under subsection (2) or a communication under subsection (4) within—

(a) 28 days, beginning on the date of receipt by the Commission of a new works assessment or a revised new works assessment or receipt of all information or clarifications requested under subsection (13), or

(b) such other period as the Minister may specify by order, after consultation with the Commission and railway undertakings.

(13) The Commission may, for the purpose of carrying out its functions under this section, request any additional information or clarifications from a railway undertaking and the undertaking shall comply with such a request.

(14) A railway undertaking which does not comply with this section is guilty of an offence and is liable—

(a) on summary conviction, to a fine not exceeding €3,000, or

(b) on conviction on indictment, to a fine not exceeding €500,000.

(15) In this section, “new works” means new or material changes to railway infrastructure of operational significance, including, for the avoidance of doubt, railway lines or additions to existing railway lines, bridges and structures, stations or other buildings required to operate or maintain railways, level crossings and signalling systems or such other works as may, by order, be specified by the Minister, after consultation with the Commission and railway undertakings.

(16) Where a railway undertaking proposes to replace the gates at a specific level crossing with barriers, lights or other automatic devices or appliances, and

(a) it has submitted a new works assessment in respect of those works which has been accepted by the Commission under subsection (4), or

(b) where the Commission has given a generic or specific exemption under subsection (7) in respect of such works,

any obligations to make or maintain gates at that crossing do not apply.

(17) Subject to subsection (18), section 23 of the Transport (Miscellaneous Provisions) Act 1971 applies to works under subsection (16) as if those works had been required by an order under section 22 of that Act.

(18) Subsection (17) does not apply to a level crossing to which section 47 of the Railway Clauses Consolidation Act 1845 or section 6 of the Railway Clauses Act 1863 applies.

Safety assessment of new rolling stock.

43. —(1) A railway undertaking shall not bring into operation new rolling stock unless—

(a) it has submitted a safety assessment (referred to in this section as a “new rolling stock assessment”) to the Commission containing such information—

(i) as it considers appropriate to demonstrate to the satisfaction of the Commission the safety of the new rolling stock, or

(ii) as the Commission may set out in guidelines published in accordance with section 39 (4),

and

(b) the Commission has issued a communication under subsection (4).

(2) Where the Commission considers that the information provided in the new rolling stock assessment is not adequate or that the bringing into operation of the new rolling stock does not provide reasonable assurance of safety, the Commission shall serve a written notice to that effect on the railway undertaking and that notice shall set out the reasons for the Commission's decision to serve the notice.

(3) A railway undertaking in receipt of a notice under subsection (2) may submit a revised new rolling stock assessment which addresses the matters raised in such notice.

(4) Where the Commission is satisfied as to the safety of the new rolling stock on the basis of the information contained in a new rolling stock assessment or a revised new rolling stock assessment under subsection (3), the Commission shall communicate in writing its acceptance of the new rolling stock assessment to the railway undertaking.

(5) A railway undertaking shall, within 21 days of receipt of a communication under subsection (4), amend the safety case to reflect the implications of the new rolling stock assessment.

(6) The Commission may at its discretion give a general or specific exemption from the requirements of this section where, in the opinion of the Commission, the new rolling stock is similar in nature to rolling stock of the railway undertaking which is already in operation and where the safety case of the railway undertaking would not require revision when the new rolling stock is being brought into operation.

(7) A railway undertaking shall not commence commissioning of new rolling stock until—

(a) it has provided such information to the Commission, as may be specified by the Commission in any individual case, that, for the purposes of commissioning, demonstrates to the satisfaction of the Commission—

(i) the safety and suitability for purpose of the rolling stock, and

(ii) the adequacy of the systems and procedures to ensure safety of persons,

and

(b) the Commission has given its consent to such commissioning.

(8) The Commission may, where it considers it appropriate to do so, direct a railway undertaking to engage a suitably qualified person to independently assess a new rolling stock assessment or a revised rolling stock assessment and the report of such person shall be submitted to the Commission at the same time as the submission under subsection (1) or subsection (3).

(9) Where a railway undertaking has altered its new rolling stock assessment on the basis of the report of a person engaged in accordance with subsection (8), a statement of the actions taken by the railway undertaking in response to the report, together with the report of the person and the new rolling stock assessment as amended, shall be submitted to the Commission.

(10) It shall be the duty of the Commission to ensure that it carries out its functions under this section as expeditiously as may be, and for that purpose, to take all such steps as are open to it to ensure that, in so far as is practicable, there are no avoidable delays at any stage in its performance of its functions under this section.

(11) Without prejudice to the generality of subsection (10), and subject to subsection (8), it shall be the objective of the Commission to ensure that it issues a notice under subsection (2) or a communication under subsection (4) within—

(a) 28 days, beginning on the date of receipt by the Commission of a new rolling stock assessment or a revised new rolling stock assessment or receipt of all information or clarifications requested under subsection (12), or

(b) such other period as the Minister may specify by order, after consultation with the Commission and railway undertakings.

(12) The Commission may, for the purpose of carrying out its functions under this section, request any additional information or clarifications from a railway undertaking and the undertaking shall comply with such a request.

(13) A railway undertaking which does not comply with this section is guilty of an offence and is liable—

(a) on summary conviction, to a fine not exceeding €3,000, or

(b) on conviction on indictment, to a fine not exceeding €500,000.

(14) In this section, “new rolling stock” includes material alterations to existing rolling stock of a railway undertaking and rolling stock which may have been in prior use but was not previously operated on the railway infrastructure of the relevant railway undertaking.

Transfer of ownership.

44. —(1) Where ownership of a railway undertaking or a right to operate a railway is proposed to be transferred from one railway undertaking to another railway undertaking, the latter undertaking shall immediately notify the Commission in writing of the proposed transfer and provide details of the proposed ownership and organisational structure to the Commission together with a statement specifying the principal changes which it intends to make to the safety case of the first-mentioned undertaking.

(2) A railway undertaking to which ownership of another railway undertaking or rights to operate a railway has transferred shall, within a period of 3 months of such transfer or such other period exceeding 3 months as may be specified by the Commission in any particular case, submit a new safety case in accordance with section 39 .

(3) In the period between the date of such transfer referred to in subsection (2) and the acceptance of the new safety case by the Commission, the railway undertaking to which ownership or rights has transferred shall, in respect of the assets or rights transferred and where it continues to operate the railway services or infrastructure transferred, ensure compliance with the statement under subsection (1) and with the safety case of the first-mentioned railway undertaking in so far as it has not been changed:

Provided that—

(a) the railway undertaking to which the ownership or rights has transferred complies with its general duty under section 36 ,

(b) the Commission has in the circumstances given its approval to the continued operation of the railway services or infrastructure, and

(c) the railway undertaking complies with any directions given in writing by the Commission.

(4) A railway undertaking from which ownership or rights are transferring shall provide its safety case and all other relevant information to the new railway undertaking to enable the new railway undertaking to comply with this section.

(5) Where a railway undertaking fails to comply with this section, the Commission may give a direction to it to comply with this section.

(6) Where the Commission proposes to give a direction under this section, it shall notify the railway undertaking concerned of the proposal and the railway undertaking may, within 21 days of the notification, make representations to the Commission, which shall consider them.

(7) Where the Commission decides to give a direction under this section, the railway undertaking concerned may, within 21 days of notification of the decision, appeal to the High Court and the direction shall not take effect until the time allowed for such appeal has elapsed and, in the event of an appeal, until the appeal is determined or withdrawn.

(8) On hearing an appeal under subsection (7), the court may either confirm or vary the decision of the Commission or allow the appeal.

(9) A decision of the High Court on an appeal under subsection (7) shall be final, save that, by leave of the court, an appeal from the decision shall be to the Supreme Court on a specified point of law.

(10) A railway undertaking which fails to comply with a direction under subsection (5) is guilty of an offence and is liable—

(a) on summary conviction, to a fine not exceeding €3,000, or

(b) on conviction on indictment, to a fine not exceeding €500,000.

Submission and assessment of safety case.

45. —(1) A safety case prepared by a railway undertaking which operates a railway immediately before the commencement of this section shall be submitted to the Commission by the railway undertaking not later than 6 months after the commencement of this section.

(2) A railway undertaking shall, before it submits a safety case to the Commission, engage a suitably qualified person to independently assess the safety management system described in such safety case and the report of such person shall be submitted to the Commission at the same time as the safety case.

(3) Where a railway undertaking has altered its safety management system on the basis of the report of a person engaged in accordance with subsection (2), the safety case shall be amended as appropriate and a statement of the actions taken by the railway undertaking in response to the report, together with the report of the assessment and the safety case as amended, shall be submitted to the Commission.

(4) A railway undertaking shall not operate railway infrastructure or railway services unless it has received notification from the Commission of its acceptance of the relevant safety case.

(5) Subsection (4) does not apply in respect of the periods specified in subsection (1), section 44(2) and section 46 (8).

(6) A railway undertaking which does not comply with this section is guilty of an offence and is liable—

(a) on summary conviction, to a fine not exceeding €3,000, or

(b) on conviction on indictment, to a fine not exceeding €500,000.

Acceptance of safety case by Commission.

46. —(1) (a) The Commission shall notify a railway undertaking of its acceptance of a safety case by issuing a certificate (“safety certificate”) to that undertaking.

(b) A safety certificate may contain such conditions as may be deemed appropriate by the Commission, including conditions restricting or prohibiting the operation of specified parts of the infrastructure or individual rolling stock or classes of rolling stock or restricting or prohibiting the provision of a specified railway service or services where, in the opinion of the Commission, not to do so would be in breach of the duty of the Commission under subsection (2).

(c) The form of safety certificates shall be decided by the Commission.

(2) The Commission shall only accept a safety case, or a revised safety case under section 48 , and issue a safety certificate under subsection (1) where the information contained in the safety case or the revised safety case is sufficient to satisfy the Commission that the undertaking is capable, subject to any conditions contained in the safety certificate, of carrying out its operations in compliance with the duty imposed on it under section 36 .

(3) Where the Commission is not satisfied in accordance with subsection (2) with a safety case or a revised safety case, the Commission shall, by notice in writing, require the railway undertaking concerned to—

(a) reconsider the information contained in the safety case or revised safety case and, if appropriate, re-examine and amend the safety management system described therein, and

(b) have any changes made by it to the safety case or revised safety case examined by a person engaged in accordance with section 45 (2) and to have a report of the examination prepared by such person.

(4) A railway undertaking in receipt of a notice under subsection (3) or in receipt of a safety certificate containing conditions in accordance with subsection (1)(b) may re-submit the safety case or revised safety case where, in the opinion of the railway undertaking—

(a) in the case of the notice, the issues raised by the Commission in the notice have been addressed, or

(b) in the case of a safety certificate containing conditions, the safety case or revised safety case has been amended to the extent that the conditions are no longer warranted.

(5) The Commission, in deciding whether or not to issue a safety certificate, for the purpose of satisfying itself under subsection (2), may request any additional information or clarifications from a railway undertaking and the undertaking shall comply with such a request.

(6) The re-submission of a safety case in accordance with subsection (4) shall be accompanied by a report prepared under subsection (3)(b).

(7) In considering a safety case or a revised safety case submitted by a railway undertaking, the Commission shall, in relation to the adequacy of the safety management system documented therein, have regard to the size and nature of the railway undertaking and, in particular—

(a) the nature, extent and complexity of its railway infrastructure and operations,

(b) its interaction, if any, with railway infrastructure or trains of other railway undertakings or with public roads, and

(c) the likely consequences for persons of any incident on its railway.

(8) The Commission shall issue a certificate under subsection (1) or a notice under subsection (3) as soon as practicable after it has completed its assessment but no later than 3 months after the date of receipt of the safety case or revised safety case or receipt of all information or clarifications requested under subsection (5).

(9) The acceptance of a safety case or a revised safety case by the Commission and the issuing of a safety certificate shall not be interpreted as relieving a railway undertaking of its duty under section 36 .

(10) The Commission may—

(a) refuse to issue a safety certificate where the Commission is not satisfied in accordance with subsection (2), or

(b) revoke a safety certificate issued under subsection (1) if the railway undertaking which is the holder of the certificate fails to comply with its safety case and the Commission considers that the railway undertaking cannot comply with its duty under section 36 .

(11) Where the Commission proposes to refuse or revoke a safety certificate in accordance with subsection (10), it shall notify the railway undertaking concerned of the proposal and the railway undertaking may, within 21 days of the notification, make representations to the Commission, which shall consider them.

(12) Where the Commission decides to refuse a safety certificate, or revoke the safety certificate issued by it, the railway undertaking concerned may, within 21 days of notification of the decision, appeal to the High Court and the refusal or revocation shall not take effect until the time allowed for such appeal has elapsed and, in the event of an appeal, until the appeal is determined or withdrawn.

(13) On hearing an appeal under subsection (12), the court may either confirm or vary the decision of the Commission or allow the appeal.

(14) A decision of the High Court on an appeal under subsection (12) shall be final, save that, by leave of the court, an appeal from the decision shall be to the Supreme Court on a specified point of law.

(15) A safety certificate shall remain in force until it is revoked by the Commission under subsection (10) or replaced by a new certificate.

Compliance with safety case.

47. —(1) A railway undertaking shall implement the safety management system described in its safety case as accepted by the Commission under section 46 .

(2) A railway undertaking which does not comply with this section is guilty of an offence and is liable—

(a) on summary conviction, to a fine not exceeding €3,000, or

(b) on conviction on indictment, to a fine not exceeding €500,000.

Revision of safety case.

48. —(1) A railway undertaking shall revise its safety case (“revised safety case”) in circumstances where—

(a) the railway undertaking considers it appropriate to do so,

(b) new works or new rolling stock are accepted by the Commission in accordance with section 42 (6) or 43(5), or

(c) the Commission issues a notice in writing to the railway undertaking requiring it to do so.

(2) Where a revised safety case is proposed under paragraph (a) or (c) of subsection (1) and where the revision will materially alter the safety case previously accepted by the Commission, the relevant railway undertaking shall submit the proposed revision to the Commission, together with a report prepared by a person engaged in accordance with section 45 (2) and the revision shall not be made unless it has been accepted by the Commission in accordance with section 46 .

(3) Notwithstanding subsection (2), a railway undertaking may revise its safety case without the prior acceptance of the Commission in circumstances where not to do so may result in the railway undertaking being in contravention of its duty under section 36 .

(4) Where a railway undertaking revises its safety case in accordance with subsection (3), it shall immediately notify the Commission of such revision, stating the circumstances that give rise to the revision and the reasons why prior submission to the Commission could not be made and, as soon as practicable thereafter, submit the revised safety case to the Commission, together with a report prepared by a person engaged in accordance with section 45 (2).

(5) A railway undertaking which does not comply with a requirement of this section is guilty of an offence and is liable—

(a) on summary conviction, to a fine not exceeding €3,000, or

(b) on conviction on indictment, to a fine not exceeding €500,000.

Appointment of independent persons for assessments and audits.

49. —(1) The Commission shall, as soon as practicable after the establishment day, prepare and publish guidelines on the nature of the independence deemed appropriate by the Commission for the purposes of this section and shall on request, in so far as is reasonably practicable, provide guidance in individual cases to persons in relation to the appropriateness of their expertise and independence.

(2) The Commission shall establish and maintain a register (in this section referred to as a “register”) of persons who in the opinion of the Commission are qualified persons and the Commission shall make the register available to all railway undertakings.

(3) A person who is of the opinion that he or she is a qualified person for the purpose of subsection (2) may apply to the Commission to be placed on the register and an application under this section shall contain such information as may be specified by the Commission from time to time.

(4) The Commission shall review the register from time to time to confirm if the persons named therein remain qualified persons for the purposes of this section and such persons shall provide, on request from the Commission in writing, all relevant information required by the Commission for the purposes of the review.

(5) Where the Commission is of the reasonable opinion that a person who has made an application under subsection (3) or who has provided information under subsection (4) is not, on the basis of such application or information, a qualified person for the purposes of this section, the Commission shall notify the person in writing of its opinion and the reasons for such opinion.

(6) A person who fails to provide information on receipt of a request from the Commission under subsection (4) may be removed by the Commission from the register and, where the Commission proposes to do so, it shall issue a notification under subsection (5).

(7) A person who receives a notification under subsection (5) may, within a period of 21 days from the date of the notification, make representations to the Commission on the notification.

(8) Where representations are submitted to the Commission in accordance with subsection (7), the Commission shall consider the representations and—

(a) if it is satisfied that the person is a qualified person, shall include or, as the case may be, retain the name of the person on the register, or

(b) if it is not satisfied that the person is a qualified person, shall refuse to include or, as the case may be, refuse to retain the name of the person on the register,

and the person shall be notified in writing of the decision of the Commission within 14 days of the receipt of the submission.

(9) Where a railway undertaking proposes to appoint a suitably qualified person for the purposes of section 42 (9), 43(8), 45(2), 46(3)(b), 50(1) or 50(6), the railway undertaking shall notify the Commission in writing of the proposal at least 21 days in advance of the proposed appointment date.

(10) A notification under subsection (9) shall include—

(a) the name of the person proposed for conducting the assessment or audit, and details of his or her employer,

(b) where a person is not listed in the register, details of the expertise of the person concerned,

(c) any current or previous relationships between the railway undertaking and the said person, or between the railway undertaking and the employers of such person, and

(d) a statement from the railway undertaking that, in the opinion of the railway undertaking, the person—

(i) is independent of the railway undertaking having regard to the guidelines published by the Commission under subsection (1), and

(ii) has appropriate expertise for the purposes of carrying out an appropriate assessment or audit.

(11) Where, on receipt of a notification under subsection (9), the Commission is not satisfied as to the expertise or independence of the proposed person, the Commission shall communicate this, and the grounds for same, in writing to the railway undertaking within 14 days of receipt of the said notification.

(12) On receipt of a communication under subsection (11), a railway undertaking may, within a period of 21 days from the date of the communication, submit observations to the Commission on the communication.

(13) Where observations are submitted to the Commission in accordance with subsection (12), the Commission shall consider the submission and, having regard to the observations contained therein, shall within 14 days of the receipt of the submission communicate in writing to the railway undertaking that—

(a) it is satisfied as to the expertise and independence of the person or persons being proposed by the railway undertaking, or

(b) it is not satisfied as to the expertise and independence of the person or persons being proposed by the railway undertaking.

(14) A person in respect of whom a communication is issued by the Commission under subsection (13)(b) shall not be considered to be a suitably qualified person for the purposes of this Act.

(15) A railway undertaking which appoints a suitably qualified person under this section shall bear responsibility in all aspects for the appointment and the remuneration of such a person.

(16) Notwithstanding subsection (15) insofar as it relates to remuneration, in the case of a heritage railway the Commission may, with the consent of the Minister and the Minister for Finance and if it deems it appropriate to do so, agree to be responsible for the remuneration of the suitably qualified person and, where it gives its agreement to do so, may charge a fee to the heritage railway to offset in part the level of such remuneration and the level of the fee shall be decided by the Commission.

(17) Where the Commission proposes to be responsible for the remuneration of the suitably qualified person, it shall, before giving its final agreement to do so, be of the opinion that the scale of the remuneration required is appropriate and a heritage railway shall provide all necessary information to the Commission to enable it to reach an opinion.

(18) In this section—

“qualified person” means an individual who, in the opinion of the Commission, has appropriate expertise of railway operations or of a particular class or aspect of railway operations or other expertise relevant to safety management systems or aspects thereof; and

“suitably qualified person” means a qualified person who, having regard to guidelines published by the Commission, is sufficiently independent of railway undertakings or of a particular class of railway undertaking or of a particular railway undertaking.

Safety audits.

50. —(1) A railway undertaking shall ensure that its safety management system, as described in its safety case, is independently audited by a suitably qualified person not later than the fourth anniversary of its acceptance by the Commission and not later than each subsequent period of 4 years thereafter or such other lesser period as may be specified from time to time by the Commission, having regard in particular to railway undertakings who are parties to an agreement under section 40 .

(2) The objectives of an audit under subsection (1) shall, at minimum, be—

(a) to confirm the adequacy and scope of the safety management system,

(b) to confirm that the safety case accurately reflects the safety management system,

(c) to confirm compliance by a railway undertaking with its safety case, and

(d) to make recommendations, if any, for such improvements to the safety management system as the suitably qualified person deems appropriate in light of national or international experience and technological development.

(3) The report of a suitably qualified person appointed under subsection (1) shall be submitted by the railway undertaking to the Commission within such period as may be specified by the Commission.

(4) The Commission may, where it considers it appropriate to do so upon application by a railway undertaking, being—

(a) a heritage railway, or

(b) a railway undertaking, other than a railway undertaking used for the purposes of fare-paying passengers or for fee-paying members or the conveyance of merchandise for monetary gain,

grant an exemption or derogation from the requirements of subsection (1) to such railway undertaking on such terms and conditions as it deems appropriate.

(5) In considering an application made by a railway undertaking under subsection (4), the Commission shall have regard to—

(a) the nature, extent and complexity of its railway infrastructure and operations,

(b) its interaction, if any, with railway infrastructure or trains of other railway undertakings or with public roads,

(c) the likely consequences for persons of any incident on its railway, and

(d) the time elapsed since any previous safety audit was undertaken and the findings of such audit.

(6) Where the Commission considers that a potential danger may exist in any particular situation, it may undertake, or direct by notice in writing the relevant railway undertaking to engage a suitably qualified person to undertake, an independent safety audit of the particular matter that gives rise to potential danger.

(7) The Commission may at any time undertake, or appoint a suitably qualified person to undertake on its behalf, an audit of all or any part of the safety management system and safety case of a railway undertaking.

(8) A person appointed by the Commission under subsection (7) shall, for the duration for which he or she stands engaged, have the same powers as an inspector in respect of the railway undertaking concerned.

(9) A railway undertaking shall maintain sufficient records relating to all aspects of its safety management system for the purposes of demonstrating that it is conducting its activities in compliance with its safety management system.

(10) The Commission may make regulations specifying the minimum requirements for the auditing of safety cases and a suitably qualified person referred to in section 49 shall comply with such regulations.

(11) A railway undertaking which fails to comply with this section is guilty of an offence and is liable—

(a) on summary conviction, to a fine not exceeding €3,000, or

(b) on conviction on indictment, to a fine not exceeding €60,000.