Vol. 132, No. 36— September 5, 1998

Regulations Amending the Canadian Aviation Regulations (Part VII)

Statutory Authority

Aeronautics Act

Sponsoring Department

Department of Transport

REGULATORY IMPACT
ANALYSIS STATEMENT

Description

General

These proposed Regulations Amending the Canadian Aviation Regulations (Part VII Commercial Air Services) include amendments to Subpart 0 (General), Subpart 2 (Aerial Work), Subpart 3 (Air Taxi Operations) and Subpart 5 (Airline Operations). Part VII also includes Subpart 1 (Foreign Air Operations), Subpart 4 (Commuter Operations) and Subpart 6 (Aircraft Maintenance Requirements for Air Operators) which are not being amended at this time.

Part VII (Commercial Air Operations) of the Canadian Aviation Regulations encompasses the operating and flight rules which apply to all commercial aircraft operations. Subpart 0 (General) contains regulations applied to two or more types of commercial aircraft operations while Subparts 1, 2, 3, 4, and 5 apply individually to specific types of commercial operations or to aircraft differentiated by weight category, number of engines, passenger seating configuration, and engine power type. Subpart 1 (Foreign Air Operations) applies to the operation in Canada of a foreign state aircraft or of an aircraft operated by a foreign operator in an air transport service. Subpart 2 (Aerial Work) applies to aerial work involving the carriage of passengers other than flight crew, the carriage of helicopter external loads, towing of objects or the dispersal of products (e.g. crop spraying). Subpart 3 (Air Taxi Operations), Subpart 4 (Commuter Operations) and Subpart 5 (Airline Operations) apply to the operation by a Canadian air operator, in an air transport service or in aerial work involving sightseeing operations of aircraft of varying maximum certificated take-off weights (MCTOW) and passenger seating configurations. The smaller aircraft are regulated under Subpart 3 (Air Taxi Operations). The regulations contained in Subpart 4 (Commuter Operations) apply to somewhat heavier aircraft capable of carrying more passengers while even larger, more sophisticated aircraft capable of carrying 20 or more passengers are regulated under Subpart 5 (Airline Operations). Subpart 6 (Aircraft Maintenance Requirements for Air Operators) contains maintenance requirements which apply to operations conducted in accordance with Part VII.

The proposed amendments to Subpart 0 (General) include amendments to Canadian Aviation Regulations (CARs) 700.02 (Requirements for an Air Operator Certificate), 700.17 (Unfore-seen Operational Circumstances) and 700.21 (Flight Crew Member on Reserve). The proposed changes will eliminate unintended inconsistencies between regulations or between regulations and standards, repair an inadvertent omission from previous versions of the CARs and, in CARs 700.17, allow for the extension of flight times for flight crew members in unforeseen operational circumstances. Minor editorial changes will improve the clarity of these regulations.

In Subpart 2 (Aerial Work) amendments are proposed to CARs 702.01 (Application), to clarify the status of glider towing operations; CARs 702.16 (Carriage of Persons), to explicitly permit the carriage of parachutists where the air operator certificate authorizes parachuting operations, and to CARs 702.18 (Night, VFR OTT and IFR Operations), to remove a restriction from the conditions applicable to the conduct of night parachute operations. The proposed modification of CARs 702.65 (Flight Crew Member Qualifications) will clarify the pilot check requirements for a chief pilot in an aerial work operation.

Proposed revisions to Subpart 3 (Air Taxi Operations), CARs 703.88 (Flight Crew Member Qualifications), will remove or replace confusing terminology and clarify the intent of the regulation.

The proposed amendments to Subpart 5 (Airline Operations) include amendments to Canadian Aviation Regulations (CARs) 705.22 (Operational Flight Plan), 705.27 (Admission to Flight Deck), 705.39 (Weight and Balance Control) and 705.42 (Carry-on Baggage). Among the four regulations, five specific changes are proposed. Two of these changes will correct unintentional omissions from the current CARs, one is an editorial revision and the remaining two changes will clarify ambiguous provisions in the present Regulations.

Specific

CARs 700.02(4) (Requirements for an Air Operator Certificate)

CARs 700.02(4) will be amended to rectify an unintended omission from CARs. The holder of a flight training unit operator certificate may, at present, conduct a flight for sightseeing purposes. However, no legislation regarding the conditions under which such a flight may be conducted has been promulgated. The proposed amendment will require that such an operation be conducted under day VFR (visual flight rules) conditions, with a maximum of nine passengers on board and that the pilot-in-command hold a valid flight instructor rating in the appropriate category. These requirements for sightseeing flights were in place prior to the introduction of the CARs in October 1996 and reflect current industry practices.

As well, the amended CARs 700.02(4) will no longer specifically refer to the conduct of a familiarization flight by the holder of a flight training unit operator certificate. This editing change reflects the significance of a familiarization flight, as an integral part of flight training which need not be separately addressed.

CARs 700.17 (Unforeseen Operational Circumstances)

After being amended, CARs 700.17 (Unforeseen Operational Circumstances) will allow for the extension of weekly, monthly, quarterly or annual flight time limitations in the event of unforeseen operational circumstances. Unforeseen operational circumstances are defined in CARs 101.01 (Interpretation) as "an event, such as unforecast adverse weather, or an equipment malfunction or air traffic control delay, that is beyond the control of an air operator or private operator".

In CARs 700.17 (Unforeseen Operational Circumstances) and the associated standard 720.17, provision is made for an extension of flight duty time but not for an extension of flight time. Flight duty time is the period over which a flight crew member may be assigned to duty within any consecutive 24 hours. Limitations upon the duration of flight duty time are contained in CARs 700.16 (Flight Duty Time Limitations and Rest Periods). A major component of flight duty time is flight time which is defined as "the time from the moment an aircraft first moves under its own power for the purpose of taking off until the moment it comes to rest at the end of the flight" (CARs 101.01 Interpretation). CARs 700.15 (Flight Time Limitations) contains weekly, monthly, quarterly and annual limitations on flight time.

Under certain infrequent circumstances, it is possible that a flight crew member's flight duty time may need to be extended, but the operator may be unable to do so because the individual has reached a weekly, monthly, quarterly or annual limitation upon the permitted flight time. This proposed amendment will remove that restriction. Any such extension will still be subject to the limitations imposed by the definition of unforeseen operational circumstances and by Canadian Air Service Standard 720.17.

CARs 700.21 (Flight Crew Member on Reserve)

The proposed amendment to CARs 700.21 (Flight Crew Member on Reserve) will remove an inconsistency between present CARs 700.21 and the corresponding Commercial Air Services Standard (CASS) 720.21. At present, CARs 700.21 prohibits the interruption, by the air operator, of the rest period required for a flight crew member. On the other hand, CASS 720.21 presents the conditions with which an air operator must comply if they do interrupt the flight crew member's rest period, thus implying the possibility of legally interrupting the rest period. The proposed revision will remove the unintended contradiction by changing the restrictive wording "...with a rest period that is scheduled in advance, is not interrupted by the air operator and meets the requirements of the Commercial Air Services Standards" in CARs 700.21(1) to "...with a rest period that meets the requirements of the Commercial Air Services Standards". The air operator will then be permitted to interrupt a flight crew member's rest period provided the requirements of the Commercial Air Services Standards are met. CASS 720.21 will remain unchanged.

CARs 702.01(c) (Application)

CARs 702.01(1)(c) (Application) will be revised to remove a misleading and potentially confusing phrase. At present, CARs 702.01(1)(c) states that Part VII, Subpart 2 (Aerial Work) applies to the operation of an aeroplane or helicopter in aerial work involving the towing of objects, "other than a glider towing operation conducted by a flight training unit". However, "aerial work" is defined as "a commercial air service other than an air transport service or a flight training service" (CARs 101.01 Interpretation). Thus, CARs 702.01 does not apply to glider towing operations conducted by a flight training unit and the phrase excluding these operations from the application of this regulation is redundant and, possibly, confusing. The proposed amendment to CARs 702.01(1)(c) will eliminate the reference to glider operations conducted by a flight training unit and remove this source of ambiguity.

CARs 702.16 (Carriage of Persons)

CARs 702.16 (Carriage of Persons) will be amended to rectify an unfortunate oversight in the present CARs. This regulation was intended to allow an aerial work operator to carry parachutists where the air operator certificate permits parachuting, however, this intent is nowhere stated in CARs 702.16. Aerial work operators are not, in general, permitted to have persons other than flight crew members or those persons whose presence is essential during the flight on board. Departmental practice, at present, is to consider parachutists "essential during the flight" and to allow their presence during parachuting operations. The proposed amendment will state that parachutists are allowed on board where the air operator certificate permits, thus clarifying this regulation.

CARs 702.18 (Night, VFR OTT and IFR Operations)

At present, CARs 702.18 (Night, VFR OTT and IFR Operations) requires the pilot-in-command to have an instrument flight rules (IFR) rating during night parachute operations. Night parachute jumps take place under conditions such that there is little or no necessity to use the additional training and skills incorporated in qualifying for an IFR rating. The proposed amendment to CARs 702.18 will allow night parachute operations, within 10 nm of the aerodrome of departure, when the air operator certificate authorizes parachuting and night VFR, without a requirement for the pilot-in-command to hold an instrument flight rules rating.

CARs 702.65 (Flight Crew Member Qualifications)

The current wording of CARs 702.65 (Flight Crew Member Qualifications) has been mistakenly interpreted to mean that a chief pilot will need a competency check for an aircraft for which a pilot proficiency check is not required. It is proposed to amend this regulation to state explicitly that the requirement for a valid competency check or pilot proficiency check does not apply to a chief pilot.

CARs 703.88 (Flight Crew Member Qualifications)

The intent of CARs 703.88 is that, for single-engined aeroplanes in air taxi operations, when not carrying passengers in IFR flight or in night VFR flight, the chief pilot of the air operator is considered competent and does not require either a pilot proficiency check or a competency check. CARs 703.88 paragraph (1)(c), at present, contains wording that has been mistakenly interpreted to mean that a chief pilot will need to successfully complete a competency check or a pilot proficiency check on a single-engined aeroplane, operated under the above conditions with no passengers. After the proposed revisions, CARs 703.88 will specifically state that the requirements for successful completion of a competency check or a pilot proficiency check set out in that regulation do not apply to a chief pilot.

Paragraph (6)(a) of CARs 703.88, at present, exempts a flight crew member of an aircraft on a training, ferry or positioning flight from the currency, experience and pilot check requirements of this regulation. Since Subpart 3 applies only to a transport service or a sightseeing service but not to any of the three types of flight mentioned in 703.88(6)(a), paragraph (6)(a) conflicts with the applicability provisions of Subpart 3. The proposed amendment will delete this paragraph from CARs 703.88.

CARs 705.22 (Operational Flight Plan)

The proposed amendments to CARs 705.22 (Operational Flight Plan) will, firstly, specify a minimum period for which an air operator must retain an operational flight plan and, secondly, will reposition the requirements which must be met in the processing and retention of operational flight plans from Canadian Air Service Standard (CASS) 725.22 to the regulation.

At present, the requirement to retain a copy of an operational flight plan is stated in CARs 705.22 and the retention period is to be specified in the company operations manual. However, a minimum duration for the retention period is not indicated in the CARs nor in the associated standards. One of the proposed amendments to CARs 705.22 will repair that omission and require the operational flight plan to be retained for a minimum of 90 days.

The other proposed revision to CARs 705.22 will deal with an editorial change to the location of the requirement for formal acceptance of the operational flight plan by the pilot-in-command and, if applicable, by the flight dispatcher. This requirement is currently stated in the associated standard, CASS 725.22. For consistency with the treatment elsewhere in the CARs of similar requirements, it would be more suitably located as a regulation rather than as a standard. Therefore, the statement "The air operator shall specify, in its company operations manual, how formal acceptance of the operational flight plan by the Pilot-in-Command and, if applicable, the flight dispatcher shall be recorded." will be deleted from CASS 725.22. CARs 705.22(4) will be rewritten to require an air operator to specify in the company operations manual:

— the required retention period of the operational flight plan,

— the process for recording the formal approval of the operational flight plan by the flight dispatcher, and

— the process for recording the formal approval of the operational flight plan by the pilot-in-command.

CARs 705.27 (Admission to Flight Deck)

CARs 705.27 (Admission to Flight Deck) will be amended, at the request of the industry, to clarify the position that a seat on the flight deck not occupied by a member of the flight crew during the performance of flight deck duties (a jump seat) may not be used as a revenue seat for a passenger. CARs 705.27 currently permits only flight crew members, Department of Transport air carrier inspectors with official identification cards, or persons authorized by the air operator in accordance with the company operations manual to be admitted to the flight deck without a seat being available for that person in the passenger compartment. The intent of this regulation is to limit access to the flight deck by individuals with no duty to perform there. However, the category "persons authorized by the company operations manual" is ambiguous enough to permit an attempt to use the jump seat for a revenue paying passenger. The proposed change will ensure that an interpretation of present 705.27 as allowing the air operator to establish procedures in the company operations manual to permit an unoccupied flight deck seat to be assigned to a revenue paying passenger, with no alternative seating in the passenger compartment available, is prohibited.

CARs 705.39 (Weight and Balance Control)

The proposed amendment to CARs 705.39 (Weight and Balance Control) will incorporate a minimum period for which weight and balance forms must be retained. Similarly to CARs 705.22 (Operational Flight Plans), the current requirement for retention of weight and balance forms does not specify a minimum period during which they must be retained. The proposed revision will require an air operator to retain a copy of the weight and balance form for each flight, including any amendments, for a minimum period of 90 days.

CARs 705.42 (Carry-On Baggage)

CARs 705.42 (Carry-On Baggage) will be revised to ensure the airworthiness standards for carry-on baggage stowage applied to an aircraft are those appropriate for the design standards under which the aircraft was manufactured. At present, the wording in CARs 705.42 requires the equipment for baggage stowage to be approved in accordance with Chapter 525 (Transport Category Aeroplanes) of the Airworthiness Manual. Chapter 525 contains the most current standard of airworthiness under which transport category aeroplanes are manufactured and type certificated. Aircraft manufactured in conformity to earlier certification standards of airworthiness are not commonly required to satisfy subsequent design innovations. Therefore, they may not meet the standards for equipment for baggage stowage in the most recent version of Chapter 525. The proposed change to 705.42 will require equipment for baggage stowage to comply with the airworthiness standards appropriate for the aircraft upon which it is installed without imposing an overriding requirement for existing equipment on older aircraft to be modified or replaced to meet later design standards.

Alternatives

The proposed amendments to CARs 700.02 (Requirements for an Air Operator Certificate), CARs 700.21 (Flight Crew Member on Reserve), CARs 702.01 (Application), CARs 702.16 (Carriage of Persons), CARs 702.65 (Flight Crew Member Qualifications), CARs 703.88 (Flight Crew Member Qualifications), CARs 705.22 (Operational Flight Plan) and CARs 705.39 (Weight and Balance Control) rectify unintended omissions, remove incon-sistencies, correct oversights and clarify ambiguous wording in the present CARs. No alternatives were considered to these amendments.

CARs 700.17 (Unforeseen Operational Circumstances) is being amended to ease the impact upon the industry of the regulations governing flight time and flight duty time limitations and rest periods. It is being proposed at the request of the industry. No alternatives to regulatory action were considered.

The proposed amendment to CARs 702.18 (Night, VFR OTT and IFR Operations) will remove a restriction on the conditions under which night parachuting operations may take place. No alternative to regulatory action can effect the removal of this restriction.

The proposed revisions to CARs 705.27 (Admission to Flight Deck) and CARs 705.42 (Carry-on Baggage) will correct ambiguities which could lead to misinterpretations of the Canadian Aviation Regulations. No alternatives to regulatory action were considered.

Benefits and Costs

These proposed amendments have minimal benefit-cost implications.

Correction of Inconsistencies and Ambiguities

The following regulations are being amended to remove inconsistencies and ambiguities:

CARs 700.02 (Requirements for an Air Operator Certificate),

CARs 700.21 (Flight Crew Member on Reserve),

CARs 702.01 (Application),

CARs 702.16 (Carriage of Persons),

CARs 702.18 (Flight Crew Member Qualifications),

CARs 703.88 (Flight Crew Member Qualifications), and

CARs 705.22 (Operational Flight Plan).

The proposed modifications will improve the clarity of interpretation of the CARs and, thus, the efficiency of the regulation of the Canadian aviation industry. Since no change to present operational procedures is expected as a result of these proposals, no increase in costs is foreseen.

CARs 700.17 (Unforeseen Operational Circumstances)

The proposed amendment to CARs 700.17 (Unforeseen Operational Circumstances) will allow the extension of weekly, monthly, quarterly and annual limitations to flight times under the same restrictions and in the same circumstances as are, at present, applied to extensions of (daily) flight duty times. Notification requirements when flight duty times are extended, as shown in CASS 720.17, are:

— the pilot-in-command must notify the air operator,

— the air operator must retain the notification until the completion of the next Departmental audit, and

— the air operator must notify the Minister as soon as practicable for each extension.

These conditions provide for oversight by the governing authority of the use of the provision to extend flight duty times. When the limited conditions under which such an extension may be used and the monitoring provided by the notification requirements in CASS 720.17 are taken into account, detrimental effects upon aviation safety are unlikely to occur as a result of the proposed amendment. The flexibility allowed air operators to react to unforeseen operational circumstances will be improved by the allowance of extension to flight times as well as to flight duty times. This proposed amendment is anticipated to provide a marginally positive impact upon the aviation industry.

CARs 702.18 (Night, VFR OTT and IFR Operations)

The proposed removal of the restriction requiring the pilot-in-command to hold an instrument flight rules (IFR) rating when carrying parachutists for night jumps recognizes the very low risk of encountering non-visual conditions, for which an IFR rating is needed, during these operations. Night parachute jumps are conducted under visual meteorological conditions (VMC), i.e. conditions of ceiling and visibility such that the aircraft can be controlled primarily by visual reference to the horizon. They also usually take place on the aerodrome from which the aircraft departed. There is, therefore, little risk of encountering conditions under which the pilot-in-command would need to be able to control the aircraft and to navigate solely with reference to the aircraft instrumentation. That is, there is little need for the pilot-in-command to hold an instrument flight rules rating. No reduction in safety is foreseen from this action.

The proposed regulatory change will allow the air operator a wider choice of pilots who may be assigned to these flights. A possible minor reduction in costs may result.

CARs 705.22 (Operational Flight Plan) and CARs 705.39 (Weight and Balance Control)

The introduction of a minimum retention period for the operational flight plan and for the weight and balance form will ensure that a record of the planning process followed and of the decisions made for each specific flight remains available to the air operator and to any authority entrusted with responsibility for safety oversight of the industry during any period within which an investigation of a flight is likely to be initiated. The investigation of an aviation occurrence is undertaken for the purpose of discovering and correcting flaws in the system which may lead to unsafe conditions. Adequate information, with respect to the circumstances under which system deficiencies resulted in unanticipated hazardous events during flight, is necessary for the successful conclusion of such an investigation. These amendments to CARs 705.22 (Operational Flight Plan) and to CARs 705.39 (Weight and Balance Control) will ensure this type of information is available to an investigation. The likelihood of identification and correction of system flaws which led to the occurrence will be improved and increased aviation safety may result. Since arrangements must already be made for the retention of these documents, these amendments, specifying the minimum period for which they must be retained, are expected to impose little or no additional costs upon the industry.

CARs 705.27 (Admission to Flight Deck)

Amending CARs 705.27 (Admission to Flight Deck) will maintain current safety standards of airline operations by eliminating an ambiguity which could lead to a potentially hazardous misinterpretation of the CARs. Common industry practice is to permit passengers on the flight deck at the discretion of the pilot-in-command. This proposed amendment will ensure the pilot-in-command continues to have discretionary authority to bar passengers from the flight deck. Thus, protection against potential distraction of flight crew members by the presence of a passenger during high workload phases, such as take off or landing, or during critical flight conditions, such as rapidly deteriorating weather or malfunctioning aircraft systems will remain. Since scheduled passenger-carrying flights commonly depart with one or more revenue seats unfilled (see footnote 1) and the flight deck jump seat has not been typically used as a revenue seat, the cost impact of this amendment upon the aviation industry is expected to be negligible.

CARs 705.42 (Carry-on Baggage)

The proposed amendment to CARs 705.42 (Carry-on Baggage) will benefit the industry by removing the potential for significant costs to be imposed by a requirement to retrofit equipment for baggage stowage on older aircraft to meet newly upgraded design standards. Since standards for such equipment, with which older aircraft have been and will continue to be compliant, will remain in force no degradation of aviation safety is expected to occur with this amendment.

In summary, these proposed Regulations Amending the Canadian Aviation Regulations (Part VII — Commercial Air Services) have limited benefit-cost implications for the Canadian economy and for the Canadian aviation industry. In the cases of CARs 700.17 (Unforeseen Operational Circumstances), CARs 702.18 (Night, VFR OTT and IFR Operations), CARs 705.22 (Operational Flight Plan), CARs 705.39 (Weight and Balance Control), CARs 705.27 (Admission to Flight Deck) and CARs 705.42 (Carry-on Baggage) any resulting impact will provide a minor net benefit.

Consultation

Consultations on these proposed amendments have taken place with members of the Commercial Air Service Operations Technical Committee of the Canadian Aviation Regulation Advisory Council (CARAC). Active members of this Technical Committee include the Advisory Committee on Accessible Transportation, the Aerospace Industries Association of Canada, Air B.C., Air Canada, the Air Canada Pilots Association, the Air Line Pilots Association — Canada, the Air Transport Association of Canada, the Association québécoise des transporteurs aériens inc., the Canadian Airline Dispatchers Association, Canadian Airlines International Ltd., the Canadian Auto Workers, the Canadian Business Aircraft Association, the Canadian Labour Congress, the Canadian Union of Public Employees, the Helicopter Association of Canada, Parks Canada, and the Teamsters. These proposed amendments were discussed at meetings of the Commercial Air Service Operations Technical Committee held in March and June 1997. The Committee recommended the adoption of these amendments.

Compliance and Enforcement

These Regulations will generally be enforced through the assessment of monetary penalties imposed under sections 7.6 to 8.2 of the Aeronautics Act or through suspension or cancellation of a Canadian aviation document.

Contact

The Chief, Regulatory Affairs, AARBH, Transport Canada Safety and Security, Place de Ville, Tower C, Ottawa, Ontario K1A 0N8; General inquiries: (613) 993-7284 or 1-800-305-2059 (Telephone), (613) 990-1198 (Facsimile), www.tc.gc.ca (Internet address).

PROPOSED REGULATORY TEXT

Notice is hereby given that the Governor in Council, pursuant to section 4.9 (see footnote a) of the Aeronautics Act, proposes to make the annexed Regulations Amending the Canadian Aviation Regulations (Part VII).

Interested persons may make representations concerning the proposed Regulations to the Minister of Transport within 45 days after the date of publication of this notice. All such representations should cite the Canada Gazette, Part I, and the date of publication of this notice. Each representation must be sent to the Chief, Regulatory Affairs (AARBH), Civil Aviation, Safety and Security Group, Transport Canada, Place de Ville, Tower C, Ottawa, Ontario K1A 0N8. Each representation should stipulate those parts of it that should not be disclosed pursuant to the Access to Information Act and, in particular, pursuant to sections 19 and 20 of that Act, the reason why those parts should not be disclosed and the period during which they should remain undisclosed. The representation should also stipulate those parts of it for which there is no objection to disclosure pursuant to the Access to Information Act.

August 26, 1998

MICHEL GARNEAU
Assistant Clerk of the Privy Council

REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PART VII)

AMENDMENTS

1. Paragraphs 700.02(4)(a) and (b) of the Canadian Aviation Regulations (see footnote 2) are replaced by the following:

(a) the pilot-in-command is the holder of a valid flight instructor rating in the appropriate category of aircraft;

(b) the aircraft is operated in day VFR flight;

(c) these are no more than nine passengers on board; and

(d) the flight is conducted for the purpose of sightseeing operations.

2. Section 700.17 of the Regulations is replaced by the following:

700.17 The maximum flight time referred to in paragraphs 700.15(1)(a) to (e) and the maximum flight duty time referred to in subsection 700.16(1) may be exceeded if

(a) the flight is extended as a result of unforeseen operational circumstances;

(b) the pilot-in-command, after consultation with the other flight crew members, considers it safe to exceed the maximum flight time and flight duty time; and

(c) the air operator and the pilot-in-command comply with the Commercial Air Service Standards.

3. Subsection 700.21(1) of the Regulations is replaced by the following:

700.21 (1) An air operator shall provide flight crew members on reserve, within each 24-hour period, with a rest period that meets the requirements of the Commercial Air Service Standards.

4. Paragraph 702.01(1)(c) of the Regulations is replaced by the following:

(c) the towing of objects; or

5. Section 702.16 of the Regulations is replaced by the following:

702.16 No air operator shall allow a person who is not a flight crew member to be carried on board an aircraft unless

(a) the person's presence on board is essential during the flight;

(b) the air operator is authorized in its air operator certificate to permit parachute descents and the person is a parachutist; or

(c) the air operator

6. Subsection 702.18(3) of the Regulations is amended by striking out the word "or" at the end of paragraph (a) and by replacing paragraph (b) with the following:

(b) the air operator is authorized in its air operator certificate to permit parachute descents an night VFR flight and

(c) the air operator is authorized in its air operator certificate to carry persons, other than parachutists, and the air operator complies with the Commercial Air Service Standards.

7. Paragraph 702.65(c) of the Regulations is replaced by the following:

(c) if the person is not the chief pilot, has successfully completed a competency check or a pilot proficiency check, the validity period of which has not expired, for that type of aircraft in accordance with the Commercial Air Service Standards; and

8. (1) The portion of paragraph 703.88(1)(c) of the Regulations before subparagraph (i) is replaced by the following:

(c) if the person is not the chief pilot, has successfully completed a competency check or a pilot proficiency check, the validity period of which has not expired, for that type of aircraft, in accordance with the Commercial Air Service Standards as follows:

(2) Subparagraph 703.88(1)(c)(iv) of the Regulations is replaced by the following:

(3) Subsection 703.88(6) of the Regulations is replaced by the following:

(6) An air operator may permit a person to act and a person may act as a flight crew member in an aircraft if the person does not meet the requirements set out in paragraphs (1)(b) to (d) if the air operator

(a) is authorized to do so in its air operator certificate; and

(b) complies with the Commercial Air Service Standards.

9. (1) Section 705.22 of the Regulations is amended by adding the following after subsection (1):

(1.1) An air operator shall specify in its company operations manual

(a) the period for which the operational flight plan referred to in subsection (3) shall be kept;

(b) the method of recording the formal approval of the plan by the flight dispatcher; and

(c) the method of recording the formal approval of the plan by the pilot-in-command.

(2) Subsection 705.22(3) of the Regulations is replaced by the following:

(3) An air operator shall keep a copy of the operational flight plan, including any amendments to the plan, for not less than 90 days.

10. Section 705.27 of the Regulations is amended by adding the following after subsection (3):

(4) A revenue passenger is not allowed in the flight deck unless there is a seat, other than a jump seat, available for the passenger in the passenger compartment.

11. Subsection 705.39(3) of the Regulations is replaced by the following:

(3) An air operator shall keep a copy of the weight and balance forms, including any amendments to the forms, for not less than 90 days.

(4) An air operator shall specify in its company operation manual

(a) its weight and balance system;

(b) its instructions to employees regarding the preparation and accuracy of weight and balance forms; and

(c) the period for which the forms shall be kept.

12. (1) Paragraph 705.42(2)(a) of the Regulations is replaced by the following:

(a) stowed in a compartment or overhead rack that has been approved by the Minister in accordance with Chapter 551 of the Airworthiness Manual for the stowage of carry-on baggage;

(2) Paragraph 705.42(2)(c) of the Regulations is replaced by the following:

(c) restrained by a means that has been approved by the Minister in accordance with Chapter 551 of the Airworthiness Manual.

(3) Subsection 705.42(4) of the Regulations is replaced by the following:

(4) All carry-on baggage that is stowed under a passenger seat shall be restrained in a manner that has been approved by the Minister in accordance with Chapter 551 of the Airworthiness Manual.

(4) Subsection 705.42(6) of the Regulations is replaced by the following:

(6) No air operator shall allow the passenger entry doors of an aircraft to be closed for departure until a crew member has verified that all carry-on baggage is stowed in a location that has been approved by the Minister in accordance with Chapter 551 on the Airworthiness Manual or is restrained by a means that has been approved by the Minister in accordance with Chapter 551 of the Airworthiness Manual.

(5) Subsection 705.42(8) on the Regulations is replaced by the following:

(8) No carry-on baggage that may cause injury to passengers in the event of turbulence or an emergency shall be stowed in an overhead rack unless the rack is equipped with restraining devices or doors that have been approved by the Minister in accordance with Chapter 551 of the Airworthiness Manual.

COMING INTO FORCE

13. These Regulations come into force on the date on which they are registered.

[36-1-o]

Regulations Amending the Motor Vehicle Safety Regulations (Trailer Cargo Anchoring Devices)

Statutory Authority

Motor Vehicle Safety Act

Sponsoring Department

Department of Transport

REGULATORY IMPACT
ANALYSIS STATEMENT

Description

This proposed amendment would add section 905, which is titled "Trailer Cargo Anchoring Devices", to the Motor Vehicle Safety Regulations, and it incorporates by reference an accompanying test method called Test Method 905 — Trailer Cargo Anchoring Devices (August 1998). Section 905 introduces requirements governing the minimum number and strength of the attachment points to which tie-down assemblies are affixed. It applies to trailers with a gross vehicle weight rating (GVWR) of 10 000 kg or more without permanent sides or a roof, such as flatbed, heavy hauler, industrial, lowbed, and drop-centre trailers. The intent of the proposed Regulations is to ensure that all trailers manufactured after the effective date of this amendment are equipped with anchoring devices of sufficient number and strength to restrain their loads.

The proposed Regulations specify a mathematical formula for calculating the minimum number of cargo anchoring devices that must be installed on trailers. This formula takes into account the cargo carrying capacity of the trailer, the working load limit of typical tie-down assemblies, and the forces generated by everyday on-road manoeuvres. The proposed Regulations also stipulate that every trailer cargo anchoring device must be able to withstand an upward vertical force of at least 67 000 N.

According to accident statistics, the loss of cargo by trailers is a cause of injury, death and property damage on Canadian highways, and failure of the cargo anchoring devices to which tie-down assemblies are affixed is an important contributing factor. These proposed Regulations are necessary because, until now, there were no federal requirements governing trailer cargo anchoring devices, which are installed at the time of manufacture and which, consequently, fall under federal jurisdiction. The in-service aspects of load securement, such as the strength of tie-down assemblies, are regulated by the provinces and territories, whose jurisdiction is the operation and maintenance of vehicles. In addition, industry associations, notably the Commercial Vehicle Safety Alliance, have developed voluntary guidelines for the trucking industry.

These proposed Regulations are being introduced in part as a response to a request from the North American Cargo Securement Standards Harmonization Committee to establish requirements governing trailer cargo anchoring devices under the Motor Vehicle Safety Act. The Harmonization Committee, which includes representatives from Canada, the United States and Mexico, is in the process of developing uniform consensus standards for cargo security that will be used throughout North America. These standards, which are based on the results of the North American Cargo Securement Research Project, will prescribe securement methods for specific loads such as pipe, lumber and large metal coils. The requirements published here are in harmony with those being proposed by the Harmonization Committee and as such form an important part of the legislative framework governing load securement in North America.

The Department of Transport's intention to introduce section 905 was pre-published in the Canada Gazette, Part I, on August 5, 1995, and a number of changes were made to the original proposal in response to the comments received. In summary, the static load requirement has been reduced from 90 000 to 67 000 N. The applicability of the proposed Regulations has been limited to flatbed-type trailers, and the term "cargo anchoring device" has been defined to exclude the two trailer components commonly known as rub rails and bulkheads. In addition, the proposed effective date has been extended to September 1, 1999, and a test method has been developed to specify the required test procedure. Extensive comments have been made on this regulatory proposal which necessitated change to its requirements. Because of the necessary changes and the time which has elapsed since pre-publication in the Canada Gazette, these proposed Regulations are being pre-published again.

This regulation is effective September 1, 1999.

Alternatives

As already mentioned, there are no federal provisions governing trailer cargo anchoring devices. The approach of adopting voluntary guidelines was not considered appropriate for regulating cargo anchoring devices because it would have given those manufacturers who did not follow the guidelines a competitive advantage. Furthermore, it is essential to safety that a minimum number of the cargo anchoring devices on all newly manufactured trailers meet a minimum strength requirement.

In the Department's opinion, not only should the number and strength of cargo anchoring devices be specified, but an objective test of compliance should also be required. The introduction of these proposed Regulations is also the most appropriate response to the request of the North American Cargo Securement Standards Harmonization Committee that requirements governing trailer cargo anchoring devices be established.

Benefits and Costs

Based on information taken from Transport Canada's Traffic Accident Information Database (TRAID), it is estimated that this initiative will prevent the occurrence of 40 load-loss accidents per year. As a result, there will be 3 fewer deaths, 40 fewer injuries, and $400,000 less in property damage. In monetary terms, these benefits will translate to a saving of approximately $5 million per year. The requirements of this proposed regulation will impose an estimated cost of approximately $2 million per year for additional — and in some cases stronger — anchoring devices, the testing of the devices, and maintenance of the related test records. This estimate assumes a cost of $20 per anchoring device, including testing and documentation, for an average of 10 anchoring devices per trailer on a total production of 10 000 trailers per year. This benefit-cost analysis indicates that the benefits of setting requirements governing the number and strength of cargo anchoring devices will outweigh the costs.

Consultation

Trailer manufacturers and public safety organizations were informed of the Department's intention to make this amendment in the 1994 Federal Regulatory Plan and through the regular government-industry meetings that are held. The proposed regulation was also published in the Canada Gazette, Part I, on August 5, 1995, and was subject to a 60-day consultation period. Formal comments were received from the following four respondents: the Province of Ontario, the Canadian Transportation Equipment Association (CTEA), Kinedyne Corporation, and the Truck and Trailer Manufacturers Association (TTMA). A series of meetings was also held with industry representatives that began after the close of the consultation period and continued until May 1998.

Because regulatory requirements governing trailer cargo anchoring devices were being introduced to North America for the first time, the CTEA, Kinedyne, and the TTMA were uncertain about the implications and possible impact of the proposed Regulations. In order to present the concerns of Canadian trailer manufacturers in a concerted manner, the CTEA formed the Ad Hoc Committee for Load Security/Anchor Point Devices, which was composed of seven members and chaired by a representative from Manac Inc. In a letter to the Department dated January 31, 1996, the CTEA informed the Department of the formation of this committee and it endorsed the position of the TTMA, which is presented below.

The TTMA, which represents a group of United States truck trailer manufacturers, stated in a letter to the Department dated December 14, 1995, that, while it appreciated and supported "Transport Canada's efforts to address the safety aspects of load securement", in its opinion, "... the proposed regulation does not assure that load securement will improve". One of the TTMA's main concerns was with the application of the proposed Regulations. In the Association's view, it was not practical that the proposed requirements apply to van-type trailers, which are not currently equipped with cargo anchoring devices. The Association recommended that only platform and lowbed trailers be subject to the proposed Regulations because "other types of trailers have different and specialized load securement requirements". It listed "closed van, open top van, pole, logging, automobile transporters, container chassis, livestock, liquid tank, dry bulk, dump, and other specialized trailers" as examples of trailers that should be exempted.

In response to the TTMA's recommendation and as a result of meetings with the CTEA Committee, the Department decided to restrict the application of the proposed Regulations to platform and lowbed trailers, and it excluded the kind of specialized trailers enumerated by the TTMA, as these trailers are subject to other federal, provincial, and state cargo security regulations currently in place in North America.

The TTMA also commented that the originally proposed strength requirement of 90 000 N (20 225 lb.) for each anchoring device was "excessively high". The Association pointed out that the breaking strength of the most commonly used "tie-down chain (3/8" Grade 40) is 72 090 newtons (16 200 lb.) with a working load limit of 24 030 newtons (5 400 lb.)". In its comments, Kinedyne Corporation, a manufacturer of tie-down assemblies, made essentially the same point, adding that "the 90 000 newton static breaking strength requirement would require Winch and Tiedown manufacturers to design new products to meet this regulation". Kinedyne recommended that a requirement closer to the figure of 67 000 N be adopted. The strength requirement was also the subject of much discussion in the Department's meetings with the CTEA Committee. The breaking strength requirement was reduced to 67 000 N, which the Department believes is sufficient to ensure an acceptable minimum level of safety, without being excessive.

In its letter to the Department, the TTMA also expressed concern with regard to the effect of the proposed requirements on operators who normally transport lighter loads. The Association pointed out that, in some instances, the regulation would force "heavier and more expensive" trailers than necessary, and it asked whether a larger number of anchoring devices with a lower breaking strength would be acceptable. In the Department's opinion, it is essential to safety that trailers be equipped with a minimum number of cargo anchoring devices that meet a minimum strength requirement; consequently, it cannot accept the TTMA's request. The Department believes that, with the lowering of the strength requirement, the TTMA's concern has been largely addressed.

In both its letter and at a meeting of the TTMA Engineering Committee held in January 1997, to which the Department was invited, the TTMA asked whether it would be permissible for manufacturers to provide additional anchoring devices of a lower strength than that specified by the proposed Regulations. Additional devices of any strength are permitted, as long as the trailer is equipped with the prescribed number and as long as these devices meet the strength requirement. In its letter, the TTMA also asked about the placement of the anchoring devices, comparing the requirements of a uniformly distributed load with those of a concentrated load. The Association pointed out that the two types of load require a different distribution of anchoring devices, explaining that the prescribed minimum number of points was not necessarily sufficient to accommodate both types. The Department would like to emphasize that the formula specified in the proposed Regulations represents a minimum number of cargo anchoring devices. Manufacturers are encouraged to supply additional devices, if called for, and to position them as appropriate.

In a similar comment, the Province of Ontario explained that "some large trailers, ie, float trailers used for moving machinery may be more suitably equipped with fewer anchor points of higher rating, while some trailers with a low GVWR (around 10 000 kg) may be more suitable with more anchor points of lower rating than the proposed minimum". In response to the Province's first point, it is permitted that the strength of cargo anchoring devices exceed the specified minimum. Furthermore, the Department assumes that, when necessary, trailers will be equipped with stronger anchoring devices. As in the case of the TTMA's request that a greater number of devices of lesser strength be allowed, the Province's second point has been addressed through the reduction of the strength requirement.

In another comment, the TTMA and Kinedyne both requested that the Department adopt an alternative approach to regulating cargo anchoring devices — that of labelling the devices with their breaking strength or working load limit, rather than setting a minimum breaking strength. The Department could not adopt this approach because it is necessary, for testing and compliance reasons, to set a strength limit. However, in recognition of the fact that the term "working load limit" is commonly used within the trucking industry, the expression has been defined and used in the Test Method.

The Province of Ontario also recommended that the load ratings of anchoring devices be permanently affixed to trailers, but it did not suggest that the labelling of cargo anchoring devices be used as an alternative regulatory approach. Since the proposed Regulations are silent with regard to the labelling of cargo anchoring devices, it is permissible to do so. In instances where cargo anchoring devices are not labelled, the date of manufacture that appears on the statement of compliance will serve to indicate whether or not the vehicle's cargo anchoring devices meet the minimum strength requirement specified by these proposed Regulations.

In its meetings with the Department, the CTEA Committee addressed many of the foregoing issues; however, it also made two additional requests. The first was that the use of trailer components — specifically, rub rails and bulkheads — as cargo anchoring devices be prohibited because they were not designed to withstand the forces required to secure cargo and in order to ensure that they would not be subject to the requirements of the proposed Regulations. In response, the term "cargo anchoring device" has been defined to specifically exclude bulkheads and rub rails, and definitions for "bulkhead" and "rub rail" were added to the proposed Regulations. The Committee also requested that, in the case of stake pockets manufactured from aluminum alloys, the use of block-type test fixtures be permitted during testing.

Kinedyne Corporation also asked whether the Regulations would apply to tie-down assemblies. In Canada, responsibility for motor vehicle safety is divided between the federal government and the provinces or territories such that federal jurisdiction covers only newly manufactured motor vehicles and related equipment. Components such as tie-down assemblies are considered to be "in-use" equipment and, therefore, fall under provincial and territorial jurisdiction. As a consequence, the proposed Regulations apply only to cargo anchoring devices, which are an integral part of the trailer. Kinedyne also asked whether the Regulations would apply to trailers built prior to September 1, 1999. These proposed Regulations will not apply to trailers manufactured prior to the effective date.

The TTMA requested that the Department delay finalizing the proposed Regulations until after the completion of the research program that was being conducted by the Ontario Heavy Vehicle Transportation Research Laboratory. Based on the information available at the time of its letter, the TTMA believed that "the results of this study could greatly alter the requirements for number and strength of anchor points". The final report was released in the spring of 1997, and its results fully support the requirements of these proposed Regulations.

At the meeting of the TTMA Engineering Committee attended by departmental representatives in January 1997, a trailer manufacturer recommended that a test procedure be developed for testing cargo anchoring devices. As reported in the minutes of the Committee, "it was suggested that the test procedure advise whether an actual trailer or mockup may be used, the allowed deflection or deformation of the anchor and supporting structure, and whether the anchoring devices are to be tested one or several at a time". The Department granted the Committee's request and has addressed these issues in the document Test Method 905 — Trailer Cargo Anchoring Devices (August 1998).

Compliance and Enforcement

Motor vehicle manufacturers and importers are responsible for ensuring that their products comply with the requirements of the Motor Vehicle Safety Regulations. The Department of Transport monitors the self-certification programs of manufacturers and importers by reviewing their test documentation, inspecting vehicles and testing vehicles obtained in the open market. When a defect is found, the manufacturer or importer must issue a notice of defect to owners and to the Minister of Transport. If a vehicle does not comply with a safety standard, the manufacturer or importer is subject to prosecution and, if found guilty, may be fined as prescribed in the Motor Vehicle Safety Act.

Contacts

For further information, please contact: John Neufeld, Road Safety and Motor Vehicle Regulation Directorate, Department of Transport, 330 Sparks Street, Ottawa, Ontario K1A 0N5, (613) 998-1959 (Telephone), (613) 990-2913 (Facsimile), NEUFELJ@ tc.gc.ca (Internet).

To order copies of the Test Methods, please contact: Julie Poirier, Road Safety and Motor Vehicle Regulation Directorate, Department of Transport, 330 Sparks Street, Ottawa, Ontario K1A 0N5, (613) 998-1960 (Telephone), (613) 990-2913 (Facsimile), POIRIJU@tc. gc.ca (Internet).

PROPOSED REGULATORY TEXT

Notice is hereby given, pursuant to subsection 11(3) of the Motor Vehicle Safety Act (see footnote b), that the Governor in Council, pursuant to section 5 and subsection 11(1) of that Act, proposes to make the annexed Regulations Amending the Motor Vehicle Safety Regulations (Trailer Cargo Anchoring Devices).

Interested persons may make representations with respect to the proposed Regulations to the Minister of Transport within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be sent to John Neufeld, Road Safety and Motor Vehicle Regulation Directorate, Department of Transport, 330 Sparks Street, Ottawa, Ontario K1A 0N5. The representations should also stipulate those parts of the representations that should not be disclosed pursuant to the Access to Information Act and, in particular, pursuant to sections 19 and 20 of that Act, the reason why those parts should not be disclosed and the period during which those parts should remain undisclosed. The representations should also stipulate those parts of the representations for which there is no objection to disclosure pursuant to the Access to Information Act.

August 26, 1998

MICHEL GARNEAU
Assistant Clerk of the Privy Council

REGULATIONS AMENDING THE MOTOR VEHICLE SAFETY REGULATIONS (TRAILER CARGO ANCHORING DEVICES)

AMENDMENTS

1. Schedule III to the Motor Vehicle Safety Regulations (see footnote 3) is amended by adding the expression "Trailer Cargo Anchoring Devices 905" after the expression "C-dolly Hitch Requirements 904" under the heading "Item CMVSS" and by adding the letter "X" opposite that expression in the column entitled "Trailer".

2. Schedule IV to the Regulations is amended by adding the following after section 904:

Trailer Cargo Anchoring Devices (Standard 905)

905. (1) The definitions in this subsection apply in this section.

"bulkhead" means a fixed or removable structure installed across the width of a trailer to restrict the movement of cargo during transport. (cloison)

"cargo anchoring device" means a fitting or attachment point on a trailer, other than a bulkhead or rub rail, to which a tie-down assembly is attached. (dispositif d'ancrage des chargements)

"rub rail" means a protector strip extending horizontally along the sides of a trailer intended to provide protection from scuffing. (bourrelet de protection)

(2) This section applies to every trailer that is designed to carry cargo, with a GVWR of 10 000 kg or more, a load-carrying mainframe and loading deck and no permanent sides or roof, such as a flatbed trailer, heavy hauler trailer, industrial trailer, lowbed trailer or drop-centre trailer.

(3) Every trailer shall, for the purpose of affixing cargo, be equipped with at least the number of cargo anchoring devices determined in accordance with the formula

where

N is the minimum number of cargo anchoring devices, rounded up to the next even whole number; and

M is the cargo carrying capacity of the trailer, calculated as the difference between its gross vehicle weight rating and its curb mass, expressed in kilograms.

(4) The minimum number of cargo anchoring devices determined in accordance with subsection (3) shall, when tested in accordance with Test Method 905—Trailer Cargo Anchoring Devices (August 1998), withstand a force of at least 67 000 N applied in an upward vertical direction .

COMING INTO FORCE

3. These Regulations come into force on September 1, 1999.

[36-1-o]

Footnote 1

Load factors — the ratio of total revenue passenger-kilometres to available seat-kilometres — are forecast, by Transport Canada, to remain below 70 percent for the next 10 years. (Transport Canada Aviation Forecasts 1996-2009, TP7960E, March 1997, p. 31)

Footnote a

S.C., 1992, c. 4, s. 7

Footnote 2

SOR/96-433

Footnote b

S.C., 1993, c. 16

Footnote 3

C.R.C., c. 1038

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