December 8, 2016

Is Consultation Dead At Transport Canada?


Is Consultation Dead At Transport Canada?

Kevin Psutka


On April 1, 2011 Transport Canada (TC) will take back the Private Operator Certificate (POC) program from the Canadian Business Aviation Association (CBAA) after several years of management by the CBAA.

The good news about the transition back to TC is that the applicability has been revised to exclude some aircraft that COPA considered to be unnecessarily captured when the CBAA program was developed.The bad news is that some recreational aircraft will continue to be captured by this program.

The POC program is detailed in CAR 604.Operators of certain aircraft are required to have in place a management program that is subject to approval and oversight. It is aimed primarily at non-commercial operators of larger aircraft such as corporate jets to provide a higher level of safety for passengers in these aircraft who do not pay an airfare to fly but are transported for other than recreational reasons.

Most COPA members were not affected by this program and its additional burden of paperwork, inspections and management.However, some truly private and recreational operations such as a single turboprop were captured by CAR 604.

When TC was last managing the POC program there was an exemption in place for certain turboprops that were owned and flown by private individuals for their own personal transportation and recreation. For a variety of reasons, TC decided to delegate the management of the POC program to CBAA. When the CBAA program was created, the applicability provisions were revised and the program then captured all turbine powered, pressurized, passengercarrying aircraft.

The exemption for small turboprops was also permitted to expire. For example, a turboprop converted Cessna P210 and a turboprop powered amateur-built Lancair IVP were captured.

COPA tried to put a lower limit on the program in terms of number of seats, weight or number of aircraft but TC and CBAA refused to accept our reasoning.

Instead, TC permitted the exemption to expire and many aircraft involved in personal aviation were captured. This move actually created a less safe environment in Canada, in my opinion, because private owners of the troublesome piston powered Piper Malibu, for example, who wanted to upgrade to a Meridian for the obvious safety advantages of turboprop power were discouraged from doing so by the increased regulatory burden imposed by the CBAA program.

To be fair, the qualification, cost and inspection requirements for smaller operators were less onerous than for corporate fleet operators but nevertheless the POC program resulted in an additional and unnecessary burden on personal aviation. No such program exists in the US.

CBAA management of the POC program came under political scrutiny in the past few years after a high profile accident and political pressure by some groups who did not like a non-government agency having this regulatory management authority.The issue culminated in a decision last year by the Transport Minister to repatriate the program to TC by 1 April 2011.

This is a very short time for a regulatory change. The regulatory process is now essentially dysfunctional in that it can take up to 10 years to get a change through the system.

It is possible to move urgent matters from concept to consultation to publication in Gazette I (public comment) and Gazette II (becoming law) in less time but even expedited matters can take up to two years.

To deal with this issue and to address the political decision TC bureaucrats decided to create an interim order to be in place until such time as the CAR can be amended. The only consultation was with the CBAA to create a transition for current POC holders so that they can continue to operate without having to go through an onerous reapplication process. The interim order will remain in place until an expedited Gazette process can be completed later this year.

The political decision is problematic for our sector of aviation because it side-steps the process that COPA and others have spent years to put in place. The Canadian Aviation Regulations Advisory Council is a unique process compared with many other countries for consulting on all regulatory change. It gives us an opportunity to influence and negotiate a consensus as regulations are developed or changed.

The POC interim order prevents this consultation. After the interim order is in place, the changes to CAR 604 will be hastily run through the Gazette process.Even though we will be permitted to comment during Gazette I, the words will already have been cast in concrete and experience has shown that it is virtually impossible to change anything once it reaches Gazette I.

The good news about the interim order is that TC has decided to adopt some ICAO provisions and they changed from turbine powered aircraft to turbojet powered aeroplane.

This leaves most turboprop aircraft out of the program. However, the choice of turbojet powered aeroplane captures several recreationally flown aircraft such as ex-military trainers and some amateurbuilt aircraft.

If an aircraft is flown with passengers or goods on board and is any one of the following then a POC will be required:

(a) a turbo-jet aeroplane;

(b) a large aeroplane (greater than 5,700 kg/12,500 pounds);

(c) an aircraft that is configured for at least 10 passenger seats; or

(d) an aircraft that is registered to an owner of three or more aircraft that are operated by a pilot for hire or reward.

Further information about the POC repatriation and the interim order are available on TC’s website

I have several questions concerning the wording of the interim order, including whether or not pilots flying instrument approaches using GPS, who would otherwise not be captured, will require a POC.

I would certainly not expect to require a POC to conduct RNAV approaches in my Cessna 182 but I have not been given any opportunity to comment and question the interim order.

Although I have tried, the response from TC is that I would have to wait until Gazette I to comment.I am dismayed at how this issue was dealt with by a political decision rather than consultation with the industry and I hope this is not a sign of things to come at TC.