Regulations Amending the Canadian Aviation Regulations (Training Programs): SOR/2022-17
Canada Gazette, Part II, Volume 156, Number 5
Registration
SOR/2022-17 February 11, 2022
AERONAUTICS ACT
P.C. 2022-99 February 10, 2022
Her Excellency the Governor General in Council, on the recommendation of the Minister of Transport, pursuant to section 4.9 footnote a and paragraphs 7.6(1)(a) footnote b and (b) footnote c of the Aeronautics Act footnote d, makes the annexed Regulations Amending the Canadian Aviation Regulations (Training Programs).
Regulations Amending the Canadian Aviation Regulations (Training Programs)
Amendments
Column I Designated Provision |
Column II Maximum Amount of Penalty ($) |
|
|---|---|---|
| Individual | Corporation | |
| Subsection 604.184(2) | 3,000 | 15,000 |
Column I Designated Provision |
Column II Maximum Amount of Penalty ($) |
|
|---|---|---|
| Individual | Corporation | |
| Subsection 702.78(2) | 3,000 | 15,000 |
Column I Designated Provision |
Column II Maximum Amount of Penalty ($) |
|
|---|---|---|
| Individual | Corporation | |
| Subsection 703.100(2) | 3,000 | 15,000 |
Column I Designated Provision |
Column II Maximum Amount of Penalty ($) |
|
|---|---|---|
| Individual | Corporation | |
| Subsection 704.118(2) | 3,000 | 15,000 |
Column I Designated Provision |
Column II Maximum Amount of Penalty ($) |
|
|---|---|---|
| Individual | Corporation | |
| Subsection 705.128(2) | 3,000 | 15,000 |
2 The reference “[604.184 to 604.196 reserved]” after section 604.183 of the Regulations is replaced by the following:
Amendments to Training Program
604.184 (1) If the Minister determines that a private operator’s training program required under section 604.166 does not include the competencies required for each person who receives training to perform their assigned duties, the Minister shall notify the private operator of
- (a) the corrective actions that the private operator is required to implement to its training program; and
- (b) the date by which the private operator is required to implement the corrective actions to its training program.
(2) The private operator referred to in subsection (1) shall implement the corrective actions on or before the date specified by the Minister under paragraph (1)(b).
[604.185 to 604.196 reserved]
3 The reference “[702.78 to 702.80 reserved]” after section 702.77 of the Regulations is replaced by the following:
Amendments to Training Program
702.78 (1) If the Minister determines that an air operator’s training program required under section 702.76 does not include the competencies required for each person who receives training to perform their assigned duties, the Minister shall notify the air operator of
- (a) the corrective actions that the air operator is required to implement to its training program; and
- (b) the date by which the air operator is required to submit its amended training program to the Minister for approval under paragraph 702.76(1)(b).
(2) The air operator referred to in subsection (1) shall submit its amended training program to the Minister on or before the date specified by the Minister under paragraph (1)(b).
[702.79 and 702.80 reserved]
4 The reference “[703.100 to 703.103 reserved]” after section 703.99 of the Regulations is replaced by the following:
Amendments to Training Program
703.100 (1) If the Minister determines that an air operator’s training program required under section 703.98 does not include the competencies required for each person who receives training to perform their assigned duties, the Minister shall notify the air operator of
- (a) the corrective actions that the air operator is required to implement to its training program; and
- (b) the date by which the air operator is required to submit its amended training program to the Minister for approval under paragraph 703.98(1)(b).
(2) The air operator referred to in subsection (1) shall submit its amended training program to the Minister on or before the date specified by the Minister under paragraph (1)(b).
[703.101 to 703.103 reserved]
5 The reference “[704.118 and 704.119 reserved]” after section 704.117 of the Regulations is replaced by the following:
Amendments to Training Program
704.118 (1) If the Minister determines that an air operator’s training program required under 704.115 does not include the competencies required for each person who receives training to perform their assigned duties, the Minister shall notify the air operator of
- (a) the corrective actions that the air operator is required to implement to its training program; and
- (b) the date by which the air operator is required to submit its amended training program to the Minister for approval under paragraph 704.115(1)(b).
(2) The air operator referred to in subsection (1) shall submit its amended training program to the Minister on or before the date specified by the Minister under paragraph (1)(b).
[704.119 reserved]
6 The reference “[705.128 to 705.133 reserved]” after section 705.127 of the Regulations is replaced by the following:
Amendments to Training Program
705.128 (1) If the Minister determines that an air operator’s training program required under 705.124 does not include the competencies required for each person who receives training to perform their assigned duties, the Minister shall notify the air operator of
- (a) the corrective actions that the air operator is required to implement to its training program; and
- (b) the date by which the air operator is required to submit its amended training program to the Minister for approval under paragraph 705.124(1)(b).
(2) The air operator referred to in subsection (1) shall submit its amended training program to the Minister on or before the date specified by the Minister under paragraph (1)(b).
[705.129 to 705.133 reserved]
Coming into Force
7 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.)
Issues
The Canadian Aviation Regulations (CARs) require air operators (i.e. subparts 702, 703, 704 and 705) and private operators (i.e. Subpart 604) [hereafter referred to collectively as “Operators”] to establish and maintain training programs for aviation personnel including pilots, flight attendants, flight dispatchers, and others. Training programs for Part VII — Commercial Air Services operators must be approved by the Minister of Transport (the “Minister”) in accordance with the CARs. However, ministerial approval is not required for private operators.
The CARs (all subparts) also indicate that no air operator may permit a person to act as the pilot-in-command unless they have fulfilled the requirements of the air operator’s relevant training program. While a training program must be established and maintained, the Minister of Transport (or a Transport Canada [TC] delegated official) is unable to confirm that critical safety updates to a training program that no longer reflects the competencies for personnel to proficiently perform their assigned duties have been implemented on a priority basis. More specifically, the Minister is incapable of effectively enforcing compliance on an Operator who has failed to implement critical safety updates into a training program. The purpose of the Regulations Amending the Canadian Aviation Regulations (Training Programs) [the amendments] is also in part to address the Minister’s inability to require that specific training requirements be adopted by Operators, given that the CARs do not directly incorporate by reference the various training recommendations, or operational evaluation (OE) reports, that are produced (or updated) in respect of a type certified aircraft, over the years.
Background
On January 18, 2021, as part of the return to service of the Boeing 737 MAX 8 series (B-737-8) in Canada, the Minister issued an Interim Order Respecting Certain Training Requirements (B-737-8 and Other Aircraft). Subsequent Interim Orders (IOs) were issued on February 1, 2021, and February 15, 2021, with the third IO approved by the Governor in Council, thus extending the validity of the requirements by one year. These IOs compelled air operators to update existing training programs to reflect findings in the TC OE Report — Boeing 737, Revision 2, published by the Department of Transport on December 4, 2021. footnote 2
The Interim Order Respecting Certain Training Requirements (B-737-8 and Other Aircraft) outlines specific requirements for the B-737-8, in addition to providing the Minister with relevant powers to impose future supplemental training programs, or modifications to an existing program, if required. The IO is a temporary legal instrument, expiring February 15, 2022.
In the absence of any regulatory authority to mandate Operators to incorporate essential elements of the OE report for the B-737-8, the IO was deemed necessary. It outlined TC’s expectations with respect to additional training for crew members, while providing clarity and certainty to the industry. Implicated Canadian Operators submitted revised training programs, all of which were approved by the Minister.
The B-737-8 incidents exposed gaps in the CARs by which the Minister is unable to require that the air operators update their training programs, and enforce compliance with approved programs, when necessary.
Under subsection 6.41(3) of the Aeronautics Act, the Minister shall, as soon as possible after the approval of an IO by the Governor in Council, recommend to the Governor in Council that a regulation having the same effect as the IO be made. While the IO is restricted to Operators under subparts 705 and 604 of the CARs, these amendments extend to subparts 702, 703 and 704 of the CARs.
Objective
The objective of the amendments is to ensure that critical aviation safety updates and modifications to ground or flight training programs are decisively and verifiably implemented by all affected Operators within specific timeframes.
Description
These amendments provide the Minister with authority to require Operators to implement changes, by a specified date, to any part of their ground and flight training programs.
Should it be determined that an air operator’s training program (required by the CARs) does not contain the competencies for each person who receives training to successfully perform their assigned duties, the amendments will allow the Minister to notify an air operator of
- the corrective actions the air operator is required to implement to its training program; and
- the date by which the air operator is required to submit its amended training program to the Minister for approval; and the date by which the private operator is required to implement the corrective actions into its training program.
There is currently no obligation for the Minister to approve a private operator’s training program. Thus, the amendments require the Minister to notify a private operator of corrective actions to be implemented into a training program, and the date by which the private operator is required to implement the corrective actions into its training program.
The new provisions are designated as enforceable through administrative monetary penalties (AMPs) under sections 7.6 to 8.2 of the Aeronautics Act (please refer to the “Implementation, compliance and enforcement, and service standards” section).
Regulatory development
Consultation
Consultations were undertaken with B-737-8 Operators prior to issuing the initial IO, as required under the Aeronautics Act. TC did not receive any opposition or concerns in granting the Minister the power to require changes to a training program hereafter under the current IO.
All Operators were consulted on codifying the Minister’s authority in the CARs via a Notice of Proposed Amendments (NPA), published online on June 9, 2021. The NPA was distributed through the Canadian Aviation Regulation Advisory Council (CARAC) with a 51-day comment period, ending July 30, 2021. One comment was received from an association representing Operators subject to Subpart 705 of the CARs, in support of the initiative. Follow-up communications were later issued to several industry organizations representing Operators subject to subparts 702, 703 and 704 of the CARs seeking definite concurrence of the amendments. No concerns were raised. In all, TC did not receive any opposition given that the amendments do not require any immediate action by Canadian Operators.
As Operators are already required to maintain and update training programs on a regular basis, they are only expected to bear minor administrative costs to comply with the new requirements (please refer to the “Benefits and Costs” section).
Given that impacted stakeholders were consulted and are expected to bear minimal costs; that no concerns or objections were raised; and the amendments codify an authority currently in place under an existing IO, these amendments were not prepublished for comment in the Canada Gazette, Part I.
Modern treaty obligations and Indigenous engagement and consultation
In accordance with the Cabinet Directive on the Federal Approach to Modern Treaty Implementation, an analysis was undertaken to determine whether these amendments give rise to modern treaty implications. The assessment examined the geographic scope and subject matter of the amendments in relation to modern treaties in effect. Upon examination, no treaty obligations were identified.
Instrument choice
The existing requirement to establish a training program in the CARs is a prescriptive regulation in that it explicitly states what must be done (i.e. establish a training program) and how an Operator’s duties are to be performed (i.e. maintain the program). The amendments simply specify where fine-tuning will need to be applied considering new information, and/or technological advancements, that dictate how the safety of air transportation can be strengthened. Therefore, these amendments ensure compliance with safety recommendations when a training deficiency has been identified by the Minister.
The obligation to develop a training program and have it approved by the Minister is already enshrined in the CARs. TC relies on Operators to voluntarily adjust and implement recommendations to training programs upon issuance of various reports. Allowing the Minister to specify changes and dates by which amendments must be actualized, after having initially approved the program, provides clarity and certainty to Operators. This notice will reduce ambiguity and uncertainty among Canadian Operators regarding which changes must be implemented in order to properly maintain a training program, and by when.
The recommended solution is to add a section to the training program requirements for subparts 702, 703, 704, and 705 of the CARs that enables the Minister to require that these Operators modify a previously approved training program, should TC believe that changes are necessary to enhance aviation safety.
In the absence of the amendment to the CARs, the Minister could issue IOs as needed to require changes to a training program. However, an IO is considered a temporary solution and is not a substitute for a regulation. Indeed, the Aeronautics Act requires that the Minister, as soon as possible following the approval of an IO by the Governor in Council, recommend that the Governor in Council make a regulation having the same effect as that IO. The IO process is also more cumbersome for all affected parties considering the amount of consultation and levels of approval to have an IO issued, and later reissued. Having the authority laid out in the amendments is consistent with the intent of the statute regarding the issuing of IOs, and would achieve similar results in a more effective, efficient, comprehensive, and predictable manner.
For the above reasons, a regulatory amendment was determined to be the most appropriate option to ensure that required aviation safety updates and modifications to training programs are decisively and verifiably implemented by all affected Operators within specific timeframes.
Regulatory analysis
Benefits and costs
The amendments result in a total cost of $574.03 between 2022 and 2031, to be borne by Operators subject to subparts 702, 703 and 704 of the CARs (present value in 2020 Canadian dollars, discounted to the year of 2022 at a discount rate of 7%). The benefit of granting the Minister with authority to require changes to any part of the ground and flight training programs is to ensure that training programs meet a minimum level of safety. The costs and benefits associated with the amendments have been assessed in accordance with the Treasury Board Secretariat’s Policy on Cost-Benefit Analysis. Where possible, impacts are quantified and monetized. Only direct costs and benefits for stakeholders are considered in the cost-benefit analysis. Benefits and costs associated with the amendments are assessed based on comparing the baseline scenario against the regulatory scenario. The baseline scenario depicts what is likely to happen in the future if the Government of Canada does not implement the amendments. The regulatory scenario provides information on the intended outcomes due to the amendments. Details are further discussed below.
Stakeholders to be incrementally impacted by the amendments include Operators under subparts 702 (Aerial Work), 703 (Air Taxi) and 704 (Commuter). Although the amendments also provide the Minister with authority to require changes to training programs for Operators under subparts 705 and 604 of the CARs, the latter were already covered under the current IO. The amendments extend to subparts 702, 703 and 704 of the CARs; consequently, these stakeholders are expected to be impacted incrementally.
In the baseline scenario, when revisions are deemed necessary to an air operator’s training program, the Minister can issue an IO respecting certain training requirements. The IO acts as a temporary legal instrument, compelling air operators to update their training program. Under the current order [Interim Order Respecting Certain Training Requirements (B-737-8 and Other Aircraft)], TC has the authority to require corrective actions to training programs affecting the B-737-8 aircraft (and any other critical safety issues) for Operators subject to subparts 705 and 604 of the CARs. That said, the baseline scenario includes both the existing IO, as well as the potential to issue other IOs, as required.
Under the regulatory scenario, the Minister will be required to notify Operators of corrective actions to training programs, and the date by which these revisions will need to be submitted for approval and implementation. Therefore, there would be no need to issue IOs in the regulatory scenario.
The IO, although a legal instrument, is temporary (expires every 14 days to 12 months). Thus, the same repetitive actions must be borne with each issuance or re-issuance. On the other hand, codifying the Minister’s authority in regulation entails a singular action.
Cost to industry
Stakeholders do not bear any compliance costs due to the amendments, as the cost associated with updating a training program would be the same irrespective of whether the requirements are established in an IO or the CARs. However, the amendments establish an obligation to operators under subparts 702, 703 and 704 of the CARs to submit their revised training program to the Minister by a certain date, thus imposing some administrative burden costs. According to subject matter experts at TC, the Minister had to issue an IO to compel revisions to a training program once in 25 years; thus it is not a frequent occurrence. Furthermore, since the submissions take place electronically, the time taken to submit the revised training has been estimated to be five minutes. Taking these approximations into account, it has been estimated that the amendments result in a total administrative burden cost of $574.03 between 2022 and 2031, which will be assumed by operators under subparts 702, 703 and 704 of the CARs (present value in 2020 Canadian dollars, discounted to the year of 2022 at a discount rate of 7%).
Cost to Government
It should be noted that the Government will incur some costs associated with notifying operators of corrective actions, and later reviewing and approving the updated training program. However, the costs associated with these activities are expected to be minimal.
It is worth noting that both the baseline and regulatory scenarios would ensure that training programs are updated whenever it is deemed necessary to ensure minimum safety standards are upheld; however, the regulatory scenario achieves the same outcome as the baseline scenario more efficiently.
Small business lens
Analysis under the small business lens concludes that the amendments will impact Canadian small businesses. It should be noted that operators under subparts 702, 703 and 704 of the CARs are predominantly small businesses and, as a result, would be impacted incrementally from these amendments. The impacted small businesses would assume an annualized administrative cost of 30$ (present value in 2019 Canadian dollars, 7% discount rate, base year of discounting in 2012) for a 10-year period between 2022 and 2031.
Small business lens summary
- Number of small businesses impacted: 663
- Number of years: 10 (2022–2031)
- Base year for costing: 2012
- Present value base year: 2019
- Discount rate: 7%
| Description of cost | Annualized value | Total present value |
|---|---|---|
| Compliance costs | $0 | $0 |
| Administrative costs | $30 | $210 |
| Total costs | $30 | $210 |
| Costs per small business | $0 | $0 |
One-for-one rule
The one-for-one rule applies, as the amendments impose an incremental administrative burden on operators under subparts 702, 703 and 704 of the CARs. In the regulatory scenario, these operators will be required to submit a revised training program to the Minister, should modifications be required to enhance aviation safety. It is not anticipated that the authority to require specific updates to training programs and set deadlines by which the updates must be made will be used often. This analysis assumes that such requirements would be triggered once in every 25 years, resulting in very low overall, “business per usual” costs. The revised training programs will be submitted electronically, which is anticipated to take no more than five minutes per business. Using the methodology developed in the Red Tape Reduction Regulations, it is estimated that air operators will assume a total net IN of $15 in annualized administrative costs (present value in 2019 Canadian dollars, 7% discount rate, base year of discounting in 2012) for a 10-year period between 2022 and 2031, or an annualized administrative cost of $0.02 per business.
| Description of cost | Present value |
|---|---|
| Annualized administrative cost | $15 |
| Annualized administrative cost per business | $0.02 |
Regulatory cooperation and alignment
The U.S. Federal Aviation Administration has a similar provision in place to address the B-737-8 return to service training requirements. Section 121.405 of the U.S. Code of Federal Regulations (CFR), Training program and revision: Initial and final approval, subsection (e), states: “Whenever the Administrator finds that revisions are necessary for the continued adequacy of a training program that has been granted final approval, the certificate holder shall, after notification by the Administrator, make any changes in the program that are found necessary by the Administrator. . . . However, if the Administrator finds that there is an emergency that requires immediate action in the interest of safety in air transportation, he may, upon a statement of the reasons, require a change effective without stay.”
This regulatory initiative supports Canada’s efforts to meet its international obligations as a principal signatory of the Convention on International Civil Aviation and align with similar provisions enforced by the Federal Aviation Administration, the European Union Aviation Safety Agency and a great many other national civil aviation authorities (CAAs).
Strategic environmental assessment
In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, and the TC Policy Statement on Strategic Environmental Assessment (2013), the strategic environmental assessment process was followed for these amendments, and a sustainable transportation assessment was completed. No important environmental effects are anticipated as a result of these amendments. The assessment considered how environmental goals and targets, laid out in the Federal Sustainable Development Strategy, could be potentially affected.
Gender-based analysis plus
In accordance with the Cabinet Directive on Regulation, a gender-based analysis plus (GBA+) was undertaken to determine whether these amendments are likely to impact diverse groups of Canadians. This assessment examined the gender and demographic groups, which are expected to be impacted by these amendments. The analysis concluded that the administrative amendments will not disproportionately impact any group of persons.
Rationale
Canadian air carriers generally comply with manufacturer recommendations or TC Civil Aviation (TCCA) report findings. TC permits air carriers to operate with a high degree of discretion in implementing — and subsequently amending — training programs, as new information and/or requirements come to light, following certification of these programs.
The purpose of the amendments is to address an identified gap whereby the Minister is presently incapable of requiring Operators to comply with additional and/or supplemental training specifications, laid out in documents such as TCCA OE reports, operational suitability data, updated standards from the Original Equipment Manufacturer, or training requirements imposed by other CAAs.
This regulatory gap was revealed upon returning the B-737-8 to service. In the absence of any regulatory authority to require Operators to incorporate essential elements of the OE report for the B-737-8, the IO was deemed necessary. It outlined TC’s expectations with respect to additional training for crew members, while providing clarity and certainty to the industry. All implicated Canadian air operators willingly submitted a revised training program, approved by the Minister.
The amendments would allow the Minister to ensure that important elements are not missed by Operators when updating their training programs. Having the authority to require Operators to submit amended training programs to the Minister also brings about a secondary effect of increasing confidence to the travelling public, especially following a catastrophe (as illustrated with the B-737-8), by providing clear direction on how Canadian civil aviation will be strengthened.
Implementation, compliance and enforcement, and service standards
TC publishes and disseminates training requirements to Canadian air operators through various documents, such as TC OE reports, updated standards from the Original Equipment Manufacturer, and/or other CAAs. However, where the Minister is of the opinion that crew members, flight dispatchers, training personnel and other employees (subject to the training program) would benefit from additional and/or supplemental training, these amendments will be utilized to ensure that corrective actions are implemented without delay.
The new provisions come into force upon the registration of the Regulations Amending the Canadian Aviation Regulations (Training Programs), and will be enforced through the assessment of administrative monetary penalties for contraventions of designated provisions under sections 7.6 to 8.2 of the Aeronautics Act, which carry a maximum fine of $3,000 for individuals and $15,000 for corporations; or through suspension or cancellation of a Canadian aviation document; or, as applicable, proceeding by way of summary conviction or indictment pursuant to section 7.3 of the Aeronautics Act.
This new power will be used on an ad hoc basis in cases where safety issues are identified, and the Minister is of the opinion that updates to training programs are warranted. The amendment is proactive and forward-looking. As it stands, this authority is not anticipated to be exercised at a given time. To date, all issues affecting air transportation safety have been resolved. It should also be noted that since the inception of the CARs on October 10, 1996, such intervention has not been necessary. It wasn’t until the fatal catastrophe of the B-737-8 whereby the Minister warranted a rapid response. Urgent safety issues are impossible to predict, and historical data confirms they do not arise often.
Contact
Chief
Regulatory Development
Regulatory Affairs Branch
Civil Aviation
Safety and Security Group
Transport Canada
Place de Ville, Tower C
Ottawa, Ontario
K1A 0N5
Telephone: 1‑800‑305‑2059
Email: TC.CARConsultations-RACConsultations.TC@tc.gc.ca
Website: www.tc.gc.ca