Regulations Amending the Regulations Amending the Canadian Aviation Regulations (Parts I, VI and VII — Seaplane Operations): SOR/2020-190
Canada Gazette, Part II, Volume 154, Number 19
SOR/2020-190 August 31, 2020
P.C. 2020-590 August 19, 2020
Her Excellency the Governor General in Council, on the recommendation of the Minister of Transport, pursuant to section 4.9 footnote a of the Aeronautics Act footnote b, makes the annexed Regulations Amending the Regulations Amending the Canadian Aviation Regulations (Parts I, VI and VII — Seaplane Operations).
Regulations Amending the Regulations Amending the Canadian Aviation Regulations (Parts I, VI and VII — Seaplane Operations)
1 Subsection 7(1) of the Regulations Amending the Canadian Aviation Regulations (Parts I, VI and VII — Seaplane Operations) footnote 1 is replaced by the following:
7(1) Subject to subsection (2), these Regulations come into force on June 6, 2021.
Coming into Force
2 These Regulations come into force on the day on which they are registered.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
On February 25, 2019, the Governor in Council made the Regulations Amending the Canadian Aviation Regulations (Parts I, VI and VII — Seaplane Operations) [the Regulations] to require passengers and pilots of Subpart 703 commercial seaplanes (i.e. aircraft with 9 passengers or less) to wear an inflatable personal flotation device (PFD) when the seaplane is operated on or over water and to require pilot underwater egress training for Subpart 703 operators and Subpart 704 operators (i.e. aircraft with 10 to 19 passengers). The Regulations were published in the Canada Gazette, Part II (CGII), on March 6, 2019. The Regulations requiring the wearing of PFDs when the seaplane is operating on or over water were set to come into force on September 6, 2020, and the regulations requiring pilot egress training were set to come into force on March 6, 2022.
The aviation industry has been significantly impacted by COVID-19, with operators greatly reducing flights (i.e. up to 90% decrease in passenger volumes) or not operating at all, as federal and provincial travel restrictions reduced the demand for their services. Seaplane operators approached Transport Canada (TC) to request an extension to the coming-into-force date as seaplane operators have been left without the financial means to purchase PFDs. Additionally, PFDs have become difficult to source as some PFD manufacturing companies have shifted manufacturing lines to produce personal protective equipment in response to the COVID-19 pandemic.
The objective is to delay the coming into force of the requirements to ensure air operators have the financial capacity to acquire PFDs, and that PFD manufacturers have adequate supply to fully implement these requirements.
The amendment delays the coming-into-force date for the requirement to wear a PFD on Subpart 703 operations when the aircraft is operated on or over water until June 6, 2021.
The Northern Air Transport Association (NATA) [who represents Canada’s Floatplane Operators Association], Harbour Air, and Wilderness Seaplanes Ltd. approached TC to request an extension of the coming-into-force date. Stakeholders informed TC that if the current coming-into-force dates are maintained, seaplane operations may be forced to shut down on September 6, 2020; that is, before the end of their summer season. They informed TC that PFDs are either not readily available, or there is an insufficient amount of capital to pay for them.
Seaplane operators are supportive of the delaying the coming into force of the PFD requirements given the financial impacts of the COVID-19 pandemic on their operations. Given that the amendment is well supported and will provide some financial relief to stakeholders, and that it is time sensitive (the PFD requirements would otherwise come into force on September 6, 2020), this amendment was not pre-published in the Canada Gazette, Part I.
Modern treaty obligations and Indigenous engagement and consultation
An initial review did not identify any applicable modern treaty obligations and, therefore, a detailed analysis was not required.
Two options were considered for addressing the hardship faced by seaplane operators in relation to meeting the PFD requirements.
- Option 1 — Regulatory amendment delaying the coming into force (recommended) by nine months for the requirement to wear a PFD on Subpart 703 flights operated on or over water. This would provide air operators additional time to acquire PFDs by June 2021, thereby allowing them to continue operations in the short term while they are unable to procure the required PFDs. The delay will also help ensure that manufacturers have time to produce PFDs so that seaplane operators’ needs can be met before the requirements come into force.
- Option 2 — Maintain the September 6, 2020, coming-into-force date with no extension. This option preserves the September 6, 2020, coming-into-force date of the Regulations. Industry has advised that if the current coming-into-force date is maintained, some seaplane operations may be forced to shut down on September 6, 2020, as they will not be able to meet the new requirements. This would cause further impacts on their economic recovery as it would prevent certain operators from finishing their seasonal operations.
Benefits and costs
Due to the delayed coming-into-force date for PFDs, seaplane operators will not need to be fully equipped until June 2021. Hereafter, the PFDs would be replaced every three years, and additional annual maintenance required. In short, the schedule of purchase and maintenance is being shifted by nine months.
The initial analysis estimated that the Canadian commercial air taxi (Subpart 703) seaplane fleet consists of 630 seaplanes, for which 4 524 passengers and crews require PFDs. In addition, it was assumed that operators would need to purchase 2.5 times the required flotation devices since they may need to be rotated out of service for inspections and repair. Given the reduction in demand for air travel, these estimates are considered an upper bound. In the absence of current data, these costing assumptions remain unchanged.
In order to estimate the incremental impacts of these amendments, the difference between the baseline and regulatory scenarios must be provided over the same analytical timeframe (from September 2020 to August 2030). In this case, the baseline scenario is one in which the coming-into-force date for the equipment of PFDs in seaplanes remains on September 6, 2020, whereas the regulatory scenario is one in which that coming-into-force date is delayed until June 6, 2021. In order to properly analyze the nine-month delay, figures have been computed monthly and discounted using a monthly discount rate of 0.57%, which corresponds to an annual discount rate of 7%.
Analyzing the baseline scenario, in which the coming-into-force date remains September 2020, gives a total present value industry cost of $5.16 million; $1.63 million of which would occur in 2020. In the regulatory scenario, in which the coming-into-force date is deferred to June 2021, results in total present value costs of $4.90 million. Therefore, over the 10-year analytical timeframe, the total difference in present value costs for the amendment is $0.26 million. These cost savings represent the benefit to seaplane operators of delaying the coming into force of the provisions.
It should be noted that the difference in present value costs in 2020 (i.e. $1.63 million) will give air operators the flexibility to allocate the funds elsewhere at a time of great uncertainty in the air industry.
The intent of having passengers wear PFDs on board seaplanes when operating on or over water is to decrease the probability of passengers drowning in the case of an accident. As the initial amendments were estimated to bring about these safety benefits, delaying the implementation results in the potential for increased risk and reduced safety impacts. That said, these potential impacts are expected to be minimal due to the fact that seaplanes already carry PFDs for emergencies and that flying time of seaplanes in Canada has decreased as a result of the COVID-19 pandemic. Therefore, given these considerations, these reduced safety benefits have not been monetized.
Small business lens
The small business lens applies, as there are impacts on small businesses associated with the amendment. Approximately 80% to 90% of the 187 seaplane operators are small businesses. footnote 2 operations are seasonal, with high volumes occurring during summer months. Due to the fact that the COVID-19 pandemic commenced in the spring, along with the associated travel restrictions, many operators were not able to operate, or operated on extremely limited schedules. This has meant they did not have the necessary capital to purchase PFDs.
By shifting the coming-into-force date by nine months, industry will be able to shift $1.63 million in costs from September 2020 to June 2021, giving operators the flexibility to reallocate these funds as they see fit. This will provide flexibility to small businesses at a time of strain on the air industry.
The one-for-one rule does not apply to the amendment, as there are no incremental administrative burden costs for businesses as defined under the one-for-one rule.
Regulatory cooperation and alignment
Canada has the highest volume of seaplane operations in the world. The United States (U.S.) Federal Aviation Administration (FAA) does not mandate the use of PFDs over water in general; however, air tour operators (commercial passenger operations) in the State of Hawaii, who function under special operating rules, do require wearing PFDs. In addition, the U.S. FAA has developed guidance material for Part 91, General Operating and Flight Rules, of the Federal Aviation Regulations, and suggests that operators establish a policy whereby all occupants wear an inflatable PFD anytime the seaplane operates on or near the water.
The International Civil Aviation Organization’s standards and recommended practices require that seaplanes be equipped with a flotation device for each person on board in a location that is easily accessible from the passenger’s seat, a requirement already in place in Canada. There is no requirement for passengers to don the flotation device while the seaplane is in operation.
TC maintains that the Canadian approach, which will require passengers and crew to wear a PFD on or above water, is appropriate, given the prevalence of seaplane operations in Canada, risks identified by the Transportation Safety Board (TSB), stakeholders, lack of a suitable international standard (to address the risks), low overall impact of the amendment, and absence of any identified impact on international competitiveness, per the initial Regulatory Impact Analysis Statement.
Strategic environmental assessment
An initial assessment was conducted. No environmental impacts are expected.
Gender-based analysis plus
Negative differential impacts are highly unlikely to affect a particular group of persons. The original intent of bringing forward the Regulations was associated with an increased level of safety following a seaplane accident in Canada. Pilots and passengers benefit, from a safety perspective, by the increased probability of evacuation of the aircraft underwater (from pilots undergoing egress training), in addition to decreasing the probability that passengers who have evacuated the seaplane will drown (i.e. by wearing a flotation device). When applying the gender-based analysis plus (GBA+) lens to the safety component of the proposal, it was determined that the requirements (to wear a PFD on or over water, and egress training) would not marginalize or negatively affect those of either gender, or any vulnerable populations. Instead, the requirements would strengthen the safety of all passengers.
Delaying the coming-into-force date until June 6, 2021, would provide temporary relief from the PFD requirements to ensure air operators have the financial capacity to acquire PFDs and, at the same time, that there is an adequate supply to implement these requirements.
When the Regulations were made, TC acknowledged and understood that there would be a financial burden to air carriers. However, it was assumed to be reasonable based on the expectation of a stable industry; not one that has had passenger levels (and revenue) reduced by 90% or more. A delayed coming into force is in line with the original intent of phasing in these requirements and would alleviate financial burdens to air operators.
Air operators and manufacturers will also need to ensure appropriate cleaning and sanitization between uses, and that disinfectants do not impact the life span or integrity of the PFD. This has become a more prevalent concern since the outbreak of the COVID-19 pandemic, and additional sanitation procedures may not be fully developed by the time the Regulations come into force in September 2020.
Egress training does not come into force until March 6, 2022. While TC will continue to work with air carriers and training providers to monitor compliance progress, no additional delays for this provision are being proposed at this time.
Implementation, compliance and enforcement, and service standards
TC will inform stakeholders of the delayed implementation through the Canadian Aviation Regulation Advisory Council (CARAC). Operators will be encouraged to implement the constant wear PFDs as they are purchased, prior to the coming-into-force date.
Inspectors will ensure compliance (wearing of flotation devices and training schedule) during the course of regular oversight activities. This amendment provides an additional nine months for Subpart 703 operators to comply with the requirement to have pilots and passengers wear an inflatable PFD when operating on or over water.
Once the PFD requirements are in force, the amendment will be enforced through the assessment of monetary penalties imposed by designated provisions under sections 7.6 to 8.2 of the Aeronautics Act, which carry a maximum fine of $1,000 for individuals and $3,000 for corporations; through suspension or cancellation of a Canadian aviation document; or, as applicable, proceeding by way of an indictable offence, pursuant to section 7.3 of the Aeronautics Act.
Regulatory Affairs (AARKA)
Safety and Security Group
Place de Ville, Tower C
Telephone: 613‑993‑7284 or 1‑800‑305‑2059