Civil Aviation Directive (CAD) No. REG-003

Exemptions from Regulatory Requirements

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Issuing Branch: Civil Aviation
Activity Area: Rulemaking CAD No.: REG-003
File No.: A 2100-51-19-1 Issue No: 01
RDIMS No.: 3974018 v1 Issue Date: 2009-10-01

1.0  INTRODUCTION

1.1  Policy Objective

The purpose of this document is to define parameters on how the Minister’s opinion is formed, and against what criteria, in granting exemptions from regulatory requirements and to ensure the exemption process is equitable to all those who come forward with a request, while simultaneously ensuring the best interests of the public are protected.

1.2  Policy Statement

Civil Aviation is committed to implementing national standards and procedures for the consistent processing of exemption requests and a rationale in the development of criteria to either grant or deny exemptions from regulatory requirements.

1.3  Applicability

This policy applies to all parties involved in the civil aviation exemption-granting process in the Regions and at Headquarters.

1.4  Description of Changes

Civil Aviation Directive #1 on exemptions from regulatory requirements has been reviewed, in part, further to a commitment to review the validity periods of exemptions at the October 2003 NCAMX meeting. The original policy, set out in version three of the directive, limits the validity period to a maximum of 18 months. However, the policy has been amended to extend this period. The new policy allows Regulatory Affairs, during the legal review exercise prior to the issuance of an exemption, to extend the validity period beyond the 18-month period in two specific circumstances:

  1. Extending the validity period of an exemption may be considered where the exemption's purpose is to allow for an alleviation of current regulatory requirements set out in a Notice of Proposed Amendment, which has completed the CARAC consultation process.
  2. Extending the validity period of an exemption may be considered where the exemption’s purpose is to provide an alleviation to sections 511 or 513 of the Canadian Aviation Regulations.

Only HQ has the authority to issue an exemption with a validity period extending beyond 18 months. Additional criteria applicable to these two specific circumstances are set out in Appendix B - “Roles and Responsibilities of all parties involved in the exemption-request process".

Sample documents have been attached as Appendices to help drafters of exemptions. Appendix J is a sample exemption for a regulatory amendment in progress and Appendix K is a sample exemption issued by Aircraft Certification. Other minor changes in formatting and numbering have also been made.

2.0  REFERENCES

2.1  Reference Documents

It is intended that the following reference materials be used in conjunction with this document:

  1. Civil Aviation Directive (CAD) 30, Revision 4, dated April 11, 2006—Risk Management and Decision-Making in Civil Aviation

2.2  Cancelled Documents

As of the effective date of this document, the following documents are cancelled:

  1. Civil Aviation Directive (CAD) No. 1, Revision 3, dated May 1, 1999—Exemptions from Regulatory Requirements

2.3  Definitions and Abbreviations

  1. Exemption—An exemption entitles a person to act outside the normal regulatory requirements. Generally speaking, there are two ways in which compliance with a regulation governing aviation will not be required:

    a) Exemption pursuant to a regulation with criteria (Authorisation)

    The first type of exemption is provided for in the regulation itself, by the use of such words as “unless authorised by the Minister”, followed by criteria on which the authorisation will be based. Where these criteria form a complete guide for the granting of the exemption, the person who holds the Minister’s delegated authority may issue the exemption once all the criteria have been met. Since the conditions are actually set out in the regulation, the public is aware that an exemption is granted on that basis and that there will be no discrimination.

    b) Exemption by executive decision pursuant to subsection 5.9(2) of the Aeronautics Act( Executive Decision Exemption)

    Where the regulation itself does not include any provision for exemptions, subsection 5.9(2) of the Aeronautics Act may be invoked. This subsection authorises the Minister to exempt from the provisions of that Act or regulations made under it, on such terms and conditions that he deems necessary.

    Exemptions will be granted under subsection 5.9(2) only in unforeseen circumstances which are unlikely to recur or when the regulation is being amended to address certain situations. The Director General Civil Aviation or the Regional Directors Civil Aviation hold the Minister’s delegated authority to issue such exemptions.

    5.9(2) “The Minister may, on such terms and conditions as the Minister deems necessary exempt any person, aircraft, aerodrome, facility or service from the application of any regulation or order made under this Part if, in the opinion of the Minister, the exemption is in the public interest and is not likely to affect aviation safety.”

  2. Public interest—The concept of public interest has no fixed meaning in law and its scope may be broadened or narrowed according to the circumstances. It is clear, however, that the simple protection of a “private interest” will not satisfy the public interest test. Consideration must be given to how the exemption will impact on other members or segments of the regulated community as well as on the public at large. (Please refer to Appendix A for factors to consider in the determination of “public interest” during the decision-making process of whether to grant or deny an exemption request.)
  3. Aviation Safety—Any exemption issued under subsection 5.9(2) of the Aeronautics Act must be such that it is not likely to reduce the level of aviation safety afforded by the regulation to which the exemption applies.
  4. The 2-fold test—The test for assessing the merits of an exemption request therefore is two-fold:

    1. Is it in the public interest?
    2. Is it not likely to affect aviation safety?

      Each question stands on its own and must be addressed independently of the other by the OPI (and OTI as appropriate). In other words, the results of the test must be that the exemption is in the public interest and is not likely to affect aviation safety.

      In most cases, exemptions are issued only in exceptional circumstances and may be granted only after a thorough analysis is conducted on the impact the granting of the exemption may have on aviation safety. An equivalent level of safety is established through the development of terms and conditions that will provide alternate requirements or procedures to ensure any safety concerns are satisfied and safety is not compromised. In this regard, consideration should be given to any pending amendments to the regulation as well as the terms and conditions of previously issued exemptions.
  5. TCCA—means Transport Canada Civil Aviation.

3.0  BACKGROUND

3.1  Aeronautics Act

The Aeronautics Act delegates to the Minister of Transport the power to exempt from the application of regulatory requirements made pursuant to the Act only in exceptional situations when a regulation cannot or ought not apply, and if certain conditions are met.  Such exemptions are issued by delegated officials in accordance with the Delegation of Authority Document.

When Parliament enacts a law, or a regulation or an order is made under an Act of Parliament, it is a fundamental requirement of the Canadian legal system that legislative enactments will be applied universally and governs all members of the affected public equally.  This enables each person to know what is required by the law and to act with the expectation that all persons to whom the law applies will be obeying the known requirements of that law.

However, it has long been recognized that, in certain situations governed by law, there may be occasions when the regulation cannot or ought not to apply.  In such cases, it may be appropriate to issue an “exemption” which excuses compliance from all or part of the regulatory requirement.

The legislation governing aviation safety in Canada is the Aeronautics Act, together with the Canadian Aviation Regulations.  Parliament has vested the authority for administering this legislation in the Minister of Transport.  The Minister has authorized the Director General, Civil Aviation (DGCA) to act on his behalf with respect to the regulatory policy.  In order to ensure the orderly and safe development of aviation in Canada, operational restrictions have been imposed on virtually all aviation activities.  The authority to exempt from regulatory requirements has been delegated to the Minister who in turn has authorized departmental officials identified in the Delegation of Authority Document to issue exemptions on his behalf.

4.0  STANDARDS INCORPORATED BY REFERENCE

A person may also be exempt from the application of standards incorporated by reference into a regulation. For that purpose, the person must be exempt from the regulation but only to the extent that compliance to the standards is required. Subsection 5.9(2) would then be used, and the link between the regulation and the standard would be clearly spelled out in the wording of the exemption.

5.0  THE USE OF POLICY LETTERS

Policy letters cannot be used to change regulations or standards. Until the entire regulation-making process to amend a regulation or standard is completed, the old regulation stands. In some instances where the intended change to the regulation is to bring relief rather than impose stricter requirements, exemptions can be used to bring the change into effect before the amendment officially comes into force. Policy letters can be used to provide background and rationale for the planned issuance of the exemption.

6.0  THE RELEASE OF EXEMPTIONS TO THE PUBLIC

With respect to the release of exemptions to the public, the departmental position is that the process available under the Access to Information Act need not be used in order for third parties to get copies. Following a general inquiry, the information can be released by the issuing office. At the same time, Transport Canada must exercise discretion to determine whether the text contains references to either personal or proprietary information and, in such cases, this information must be purged first before release.

The authority to issue an exemption is a power that must be exercised judiciously. To ensure that exemptions are granted in a non-discriminatory and consistent fashion at Transport Canada Civil Aviation Headquarters as well as in the Regions, the delegation of authority and procedures for issuing exemptions found in Appendix A are provided to assist in exercising this authority. Please also refer to all other Appendices for further guidance throughout the exemption request process, and document drafting.

Supplementary guidance material for granting an exemption from regulatory requirements is contained in the attached appendices (A-K).

7.0  REPORTING

A report will be provided to the national civil aviation management executive board (NCAMX) on a quarterly basis by the Chief, Regulatory Affairs.

8.0  CONTACT OFFICE

Kathie Keeley
A/Chief, Regulatory Affairs
(AARBH)
Telephone number: (613) 990-1184
Facsimile number: (613) 990-1198
E-mail: KATHIE.KEELEY@TC.GC.CA

 

 

___________________________________
Martin Eley
Director General
Civil Aviation

Effective Date:      November1st, 2009

APPENDIX A – PROCEDURE FOR ISSUING EXEMPTIONS

General

Responsibility for the application and monitoring of this directive has been assigned to the Director, Regulatory Services (AARB), and is managed by Regulatory Affairs (AARBH). AARBH maintains a record of all exemptions issued by Headquarters and Regional officials, and issues exemption information via quarterly reports. Questions regarding the contents of this Directive as well as its implementation should be directed to that Office.

Delegation of Authority Document

To determine what functional authority in Headquarters or the Region has the authority to grant the exemption on behalf of the Minister, reference must be made to the Minister’s Delegation of Authority Document made pursuant to subsection 5.9(2) of the Aeronautics Act.  Exemption requests are received and assessed by the delegated branch of functional responsibility in accordance with the OPI and OTI list.

HQ and Regional Agreements of Understanding

The Regions must consult Headquarters in accordance with their functional lines of responsibility as required to develop agreements of understanding in how to proceed with exemption requests identifying circumstances that would give rise to the need for their issuance.

All agreements of understanding regarding the exemption request process between HQ functional OPI’s and the Regions must be copied to AARBH.

Charges

The Letter of Exemption Request must also include the Exemption Request Form, and administrative fee in the amount specified in section 104.01 of the Canadian Aviation Regulations.  Note that this amount is payable for 5.9(2) exemptions only (as opposed to authorisations), and applies irrespective of the ultimate success of the exemption request.

Note also that the power to waive this fee rests only with the Minister.

Regional 5.9(2) Exemptions and Authorisations

Regional officials may issue exemptions to a particular individual, company, aircraft or operation that have little likelihood of recurring, that are unique, or are likely to be unique. All exemptions issued by Regional officials must be consistent with any previously issued by the Minister, Deputy Minister, or Headquarters staff.

All exemptions and authorisations issued by the Regions must be copied to the Chief, Regulatory Affairs (AARBH) and the functional HQ Branch. Where appropriate, the file supporting the exemption request may be requested in order for AARBH to conduct its post-issue review. It is noted that given the Regions do not have parallel support in the legal vetting of exemptions as does HQ, AARBH staff is available for consultation.

Headquarters 5.9(2) Exemptions and Authorisations

All draft exemptions to be issued by Headquarters must be submitted to AARBH for legal vetting to ensure proper form and standardization prior to final submission for signature by the Director General, Civil Aviation. The complete file supporting the exemption request must be provided with the draft exemption prior to AARBH conducting its review. All exemptions issued by Headquarters must be copied to AARBH and the appropriate Regions.

Authorisations need not be reviewed by AARBH, however, once issued, must be copied to the Chief, Regulatory Affairs (AARBH).

Internal Distribution of Exemptions

  1. one copy on file of the party named in the exemption sent by the originating Division.
  2. one copy to each Division with need to know sent by the originating Division.
  3. one copy to the Regional Director, Civil Aviation sent by the originating Division (for Regional exemptions).
  4. one copy to the Chief, Regulatory Affairs (AARBH) sent by the Regional Director, Civil Aviation or originating HQ Division.

FIGURE 1 – BASIC STEPS TO EXEMPTION PROCESS

Step 1:    Client Exemption Request

Client must make own case sufficiently compelling against the 5.9(2) test to justify the exemption request being granted.

  1. Provide letter of Exemption Request.
  2. Complete Exemption Request Form.
  3. Make compelling case why the exemption should be granted.
  4. Do this by addressing the 5.9(2) test and demonstrate by providing supporting argument on the following criteria

    1. How the exemption would be in the public interest; and
    2. How the exemption would not affect aviation safety.
  5. Propose conditions to which the exemption would be subject that could mitigate any potential risk from being exempt from any regulatory requirement, and ensure that aviation safety would not be affected.
  6. Include fee in the amount required by CAR 104.01.

Step 2:    Exemption Request Assessment

Transport Canada must assess whether the client was able to successfully argue its case against the criteria set out in the 5.9(2) test.

  1. Review exemption request material to ensure all necessary documentation has been provided. If not, await its provision before proceeding with the assessment.
  2. Follow the process outlined in the Exemption Process (flow chart) and the Assessment paper.
  3. Conduct the 5.9(2) test and assess whether the supporting argument provided by the party making the exemption request in fact demonstrates that the exemption, if granted, will be:

    1. in the public interest; and
    2. not affect aviation safety.

Step 3:    Exemption Disposition

Decide on the basis of the assessment findings completed in accordance with the 5.9(2) test whether or not to grant or refuse the exemption request.

  1. the exemption request is refused, inform the client of the decision with rationale.
  2. If granted, finalize the conditions to which the exemption would be subject and proceed with the remainder of the exemption-granting process as described in more detail in the Exemption process (flow chart).

Step 4:    Legal Review of Exemption Document

  1. The Assessment Paper, Exemption Request Form, and draft exemption must first be signed off by the responsible OPI officer, OPI Branch Director, OTI Branch Director(s) and ACEB, as appropriate, prior to AARBH review.
  2. Forward to AARBH the Assessment Paper, attached Exemption Request Form, the draft exemption document, together with all of the supporting documentation and TC file for review.
  3. Once AARBH has finalized the exemption document, the OPI prepares the documentary package for the DGCA’s signature, complete with memorandum from the functional authority’s Branch Director to the DGCA explaining the need for the exemption, Assessment Paper, and exemption document. All relevant OPI’s, OTI’s, ACEB (if appropriate) and AARBH must sign-off the documents before final signature by the DGCA (N.B. AARBH signs off last before being forwarded by the OPI to the DGCA.)

FIGURE 2 - THE EXEMPTION PROCESS (FLOW CHART)

Exemption Process (Flow Chart)

Click on image to enlarge

APPENDIX B – ROLES AND RESPONSIBILITIES OF ALL PARTIES INVOLVED IN THE EXEMPTION-REQUEST PROCESS

I.  Party Making Request

II.  HQ or Regional Office of Primary Interest (OPI)

III.  Domestic Air Policy (ACEB)

IV.  Regulatory Affairs (AARBH)

I.  Party Making Request

1.  Forward Letter of Request to the appropriate HQ or Regional functional authority.

2.  The Letter of Request should contain the following:

a) compelling arguments to support why the proposed exemption should be granted;

b) provide any information and documentation to support their argument that the exemption is:

i) in the public interest; and

ii) not likely to affect aviation safety.

3.  Propose conditions that would mitigate any risk that could be created by virtue of the exemption to ensure that aviation safety will not be affected.

4.  Enclose fee payment made out to the Receiver General in the amount specific in CAR 104.

II. HQ or Regional Office of Primary Interest (OPI)

  1. Receive request & review that all necessary information has been provided.
  2. Where appropriate, refer to ACEB for a determination of the Public Interest.

    Referral criteria:

    • When an exemption request is for a commercial purpose that has potential for unfair economic advantage of one company over another, or a foreign air carrier over a Canadian; or any other situation where social or economic policy issues of national concern may be implicated, if the exemption is granted.
  3. The safety test should be performed first. Where the OPI believe that safety is clearly compromised, an exemption can be denied without referring to ACEB. When in doubt, OPI’s are encouraged to consult ACEB to assist in determining whether the public interest test needs to be considered.

    N.B. Referral to ACEB is not expected for any issues that deal with individuals; i.e. personnel licences.
  4. Forward to party making the request a letter of acknowledgment that their request has been received (and request further documentation, if required).
  5. For planning purposes, coordinate the involvement of all relevant OPI’s, OTI’s and AARBH in the process, as early as possible.
  6. Conduct a technical assessment of the request and evaluate the arguments & evidence put forward by the party making the request, in accordance with the two-fold 5.9(2) test.
  7. Step 1 – Start with the aviation safety test.

    Question: Can an equivalent level of safety be maintained by the creation of conditions? If yes, draft conditions.

    Step 2 - Conduct public interest test.

    Question: How is the granting of the exemption in the public interest?

    Question: What factors should be considered in coming to this determination?

    a) Identify the factors to consider (Refer to Appendix E - Factors to consider when interpreting “public interest”); and/or

    b) Oversee referral to ACEB where there are social and economic policy implications as defined in the referral criteria above.

  8. Document the decision-making process and assessment findings that resulted from the process outlined in points (6) and (7) above.
  9. Complete the Assessment Paper and record the justification to grant or deny the exemption. Indicate the summary status of this request. (Refer to Appendix E.)
  10. Determine the validity period or expiry date according to one of the following:

    a) General Rule - Specific expiry date up to 18 months

    b) Rule applicable for a regulatory amendment in progress

    c) Rule applicable for Aircraft Certification

    a) General Rule - Specific expiry date up to 18 months

    The period extending from the date of signature to the specific expiry date set out in line a) under the Validity heading must not extend beyond 18 months. (Refer to Appendix G for a sample exemption containing a generic validity clause.)

    The date must be expressed in accordance with ISO 8601 – Representation of dates and times, issued by the International Organization for Standardization (ISO).

    For the expiry date, the date, the time and the time zone, in that order, must be indicated clearly. The date is expressed “month, date, year”, for example “December 16, 2006”. The time is expressed in hours and minutes separated by a colon. Note that “00:01” is used for the beginning of the day and “23:59” is used for the end of the day. Refrain from using “00:00” or “24:00” which could lead to ambiguity.

    It is important to verify whether daylight savings time or standard time is in effect at the date of expiry.

    b) Rule applicable for a regulatory amendment in progress

    Conditions for the rule to be applicable:

    AARBH may consider recommending the issue of an exemption for which the validity period extends beyond the 18-month general rule when the following conditions have been met:

    i) a notice of proposed amendment (NPA) has been fully consulted at Civil Aviation Regulation Advisory Counsel (CARAC) and is about to or has proceeded to the Department of Justice for legal drafting;

    ii) the proposed regulatory amendment will result in, upon coming into effect, an alleviation to the current CARs requirements;

    iii) the exemption will provide, upon coming into effect, an alleviation from the current CARs requirements;

    iv) the file contains an assessment paper or Type 2A Risk Assessment and a draft exemption that meet the criteria for supporting documents set out below;

    v) the OPI has established a follow-up procedure to formally cancel the exemption if the NPA is withdrawn prior to its publication, and

    vi) the OPI has established a follow-up procedure to formally cancel the exemption upon publication of the amendment.

    Withdrawal of the NPA prior to its publication

    Where the NPA is withdrawn prior to its final publication in Canada Gazette, the OPI has to initiate the procedure to formally cancel the exemption. (Refer to Appendix I for a sample exemption cancellation).

    Criteria for supporting documents

    The supporting documents for an exemption issued where a regulatory amendment is in progress must meet, in addition to the criteria set out in Appendix D - Assessment Paper, Appendix G - Sample Exemption Structure, the following criteria:

    i) the assessment paper must include a specific reference to the NPA number of the regulatory amendment and the NPA’s status within the CARAC consultation process (AARBH will not automatically recommend the issue of an exemption once a functional Branch is considering a regulatory amendment.);

    ii) the assessment paper must provide a justification for an expiry date beyond the 18-month general rule; and

    iii) the exemption must include a validity clause which indicates that the exemption is in effect until the date on which an amendment modifying the subject-matter of the provisions identified in the exemption comes into effect.

    (Refer to Appendix J for a sample exemption where a regulatory amendment is in progress.)

    c) Rule applicable for Aircraft Certification

    AARBH may consider recommending the issue of an exemption without a specific expiry date when the following conditions have been met:

    i) the purpose of the exemption must be either:

    A) to alleviate the holder of a type certificate from the relevant provisions of the section 511 (Approval of the Type Design of an Aeronautical Product) of the CARs and relevant associated provisions of the Airworthiness Manual; or

    B) to alleviate the holder of a supplemental type certificate from the relevant provisions of section 513 (Approval of Modification and Repair Design) of the CARs and the associated provisions of the Airworthiness Manual;

    ii) the exemption must provide, upon coming into effect, an alleviation from the current CARs requirements; and

    iii) the file must contain an assessment paper and an exemption which meet the document requirements set out below.

    Criteria for supporting documents

    In addition to the structure requirements set out in Appendix G – Sample exemption structure, the exemption must meet the following criteria:

    i) the exemption must refer, in the application section, to either:

    A) the holder of type certificate # (include number of TC) for a specific product (include specific description of product), or

    B) the holder of supplemental type certificate # (include number of STC) for the modification to the product (include specific description of product);

    ii) the exemption must include, in the signature block, the title of the Director, Aircraft Certification.

    (Refer to Appendix K for a sample aircraft certification exemption.)

  11. Forward to AARBH for review, together with the supporting file, the following documents:

    a) Exemption Request Form;

    b) Assessment Paper; and

    c) Draft exemption.

  12. Ensure that the documentation has been signed off by the responsible officer of the OPI, & functional authority Branch Director.
  13. Inform the party making the exemption request in writing of the disposition.

III. Domestic Air Policy (ACEB)

  1. Receive referral for assistance in HQ or the Regions in determining “public interest” where criteria for referral are met.
  2. Conduct “public interest” test from social and economic policy perspective, and forward an assessment in writing to the OPI.
  3. Oversee exemption trends from a national policy standpoint, and report where required.

IV. Regulatory Affairs (AARBH)

  1. Review file to ensure all necessary documentation, and supporting information on record.
  2. Review file to ensure all steps in the process have been conducted.
  3. Review file to ensure that the two elements of the 5.9(2) test have been addressed, and that the results are documented on the file.
  4. When the exemption proposal has been approved to proceed, consult with all OPI’s and OTI’s as required in order to produce an exemption document that will withstand legal scrutiny.
  5. If any issues of discord arise amongst the relevant OPI’s and OTI’s, place such information on the record, as well as the means by which the issues were reconciled.
  6. Be available for consultation throughout the entire process and assist those who so request.

APPENDIX C – EXEMPTION REQUEST FORM

(To be completed by the party making the request and attached to the “Assessment Paper” when forwarded to AARBH by the OPI)

REQUEST MADE BY:

Name/Company

Address

Telephone, Fax
Contact Person

REQUEST MADE TO:

REGION:
HEADQUARTERS:
OPI:
OTI:

DATE REQUEST MADE:

CAR PROVISION(S):

RELATED STANDARD(S):

ISSUE:

BACKGROUND:

5.9(2) TEST:
(1)  PUBLIC INTEREST:

What factors were considered in the determination of Public Interest? Identify criteria:

a)   . . . .
b)   . . . .
c)   . . . .

Are conditions related to Public Interest required?

(2) AVIATION SAFETY:

What factors were considered to ensure aviation safety is not affected? Identify criteria and formulate as conditions of the exemption:

a)   . . . .
b)   . . . .
c)   . . . .

(3) PROPOSED CONDITIONS BY PARTY MAKING THE REQUEST:

What factors were considered to ensure aviation safety is not affected? Identify criteria and formulate as conditions of the exemption:

a)   . . . .
b)   . . . .

FILE ATTACHMENTS:

(1) Letter of Request;
(2) All pertinent documents in support of the 5.9(2) test; and
(3) Cheque made out to the Receiver General in the amount specified in CAR 104 ($475.00).

APPENDIX D – ASSESSMENT PAPER

Purpose

The purpose of the Assessment Paper is to summarize the case being put forward by the party making the request for an exemption with a view to documenting both the exemption request process, and to justify the basis for the decision made by Transport Canada to either grant or refuse the request. In this way, the official record will show that the Minister’s discretion has been exercised in accordance with a solid process, having taken into consideration all of the relevant facts and law on each case being put before him. (Refer to Appendix A for the procedure for issuing exemptions).

The Assessment Paper will reflect Transport Canada’s consideration of the exemption request being made based on the facts, law and proposed conditions put before it; together with the results of the OPI’s assessment of the party’s arguments. Reference will be made to the evidence in support of both elements of the 5.9(2) test. The OPI will also have the opportunity within this document to provide a rationale for the decision based on the facts of the particular case to either grant or refuse the request.

Content

The contents of the “Assessment Paper” is an answer to the arguments being presented by the party making the exemption request and must include the following information:

  1. Criteria to show that the exemption is in the public interest and not likely to affect aviation safety.
  2. Conditions identified to mitigate any potential risk resulting from regulatory requirements being exempt.
  3. Documented references of meetings, dates, attendees, issues addressed and decisions made.
  4. Documented references that the 5.9(2) test has been addressed.
  5. Documentation of the decision to grant or deny the request based on the findings.
  6. Conditions of the Exemption.
  7. Validity period.

Subject Headings

The subject headings of the Assessment Paper are:

  1. Background
  2. Public Interest
  3. Aviation Safety
  4. Justification to Grant/Deny
  5. Conditions
  6. Validity
  7. Final Disposition
  • Regulatory Change
  • NPA Initiated
  • Exemption to Expire on (date)
  • Further Action (describe)

OPI       OTI       AARBH

APPENDIX E – FACTORS TO CONSIDER WHEN INTERPRETATING “PUBLIC INTEREST” UNDER SUBSECTION 5.9(2) OF THE AERONAUTICS ACT

 

General factors to consider

  1. All factors relating to the Minister’s responsibilities respecting aeronautics found in subsection 4.2 of the Aeronautics Act.
  2. All factors relating to the general regulatory powers respecting aeronautics found in subsection 4.9 of the Aeronautics Act.
  3. All factors relating to the aviation record of an applicant of a Canadian aviation document found in subsection paragraph 6.71(1) of the Aeronautics Act.
  4. All factors relating directly to the adequacy of transportation service, to its essential conditions of economy and efficiency, and to appropriate provision for and best use of transportation facilities.
  5. All factors relating to aviation public health and safety, as well as a general public benefit, need or welfare.
  6. All factors that support the basic legal principle that justice should always be done and be seen to be done.

Factors to consider with particular focus on exemptions

  1. The consequence of an exemption being granted or denied must be considered in terms of the needs of or benefits to the aviation public and the local community; consequences which may be of commercial or practical convenience, or necessity of the operation.
  2. It is not sufficient that the exemption be considered “safe” and “commercially expedient” for the applicant.
  3. All factors that examine the safety impact on the community at large.
  4. All factors that examine the economic impact on “non-exempt” operators given that an exemption must not result in any unjustified competitive advantage to one party over another.
  5. All factors that examine whether or not an exemption written against a foreign carrier will economically penalize another foreign carrier, or Canadian operator.

Note:    In the rest of this Appendix E is outlined the legal analysis involved in making the determination of “public interest” under the Aeronautics Act.

THE LEGAL ANALYSIS INVOLVED IN MAKING THE DETERMINATION OF “PUBLIC INTEREST” UNDER THE ACT

What is the meaning of the term “Public Interest” in the Aeronautics Act?

  1. There is no statutory definition for “public interest”.
  2. Instead, the Minister has been delegated the authority by Parliament to use his discretion to make an opinion on what constitutes public interest.

How does the Minister exercise his discretion?

  1. He must have regard to all of the relevant facts and law.
  2. He must not be swayed by irrelevant considerations.
  3. He must have regard to the letter and purpose of the legislation that gives him the power to act.
  4. He must consider each case on its merits. Policy is relevant, but only insofar as applied to the facts.

How does the Minister determine what are relevant considerations?

  1. He must make his examination of the facts and law in terms of the letter and spirit of the Act.
  2. He must make this determination in relation to the policies found in the Act.

What are the Policies Found in the Aeronautics Act?

  1. Section 4.2 provides the clearest policy.

    “The Minister is responsible for the development and regulation of aeronautics, and the supervision (enforcement) of all matters connected with aeronautics.”
  2. Section 4.9

    a) The primary objective of regulation under the Act is to maintain an acceptable level of safety.

    b) The primary objective of supervision under the Act is to ensure compliance with regulatory standards.
  3. Caselaw

    a) The Minister has a heavy responsibility towards the general public to ensure safety of air carrier operations.

    b) The Minister has a duty of care towards the general public to enforce legislative and regulatory requirements in the interest of public safety.

    c) The Minister has a very broad discretion to consider any factor when interpreting public interest, so long as it relates to the matter at hand.

What is the Primary Public Interest under the Aeronautics Act?

  1. The safety of air travel by strict compliance with the rules of safety.

Responsibilities of the Minister

  1. The Minister must make his determination with the following policies in mind:

    a) The Minister is responsible to the public for the regulation and supervision of aviation
    activities so as to promote safety.

    b) The Act enables a detailed regime of regulation intended to promote an acceptable level of aviation safety.

    c) Pilots, air carriers and other participants in the aviation industry are expected to comply with those regulations, and thereby achieve an acceptable level of aviation safety.

Within What Context is the Determination of public interest to be made?

  1. In accordance with the circumstances of each individual case.
  2. Within the jurisdictional limitations of the Aeronautics Act.
  3. With regard to the impact of the decision on the applicant, the general public, other members of the aviation industry, and the proper regulatory enforcement and supervision of aeronautics.

    As regards exemptions under subsection 5.9(2) of the Act, what specific interpretation does “public interest” have?
  1. The interpretation must relate to the following:

    a) Accommodation of alternative practices;

    b) Fostering of a competitive aviation industry; and

    c) Reference to something other than safety - that it is in the interest of the public (and not just the air carrier) that the exemption be granted.

APPENDIX F – PREPARING THE EXEMPTION DOCUMENT

An exemption cannot be used to compel a person to do something the regulations themselves do not require. If, in the course of granting a person relief from a regulation the exemption actually imposes more onerous conditions than the regulation itself, that person always has the choice to not take advantage of the exemption. In this case, the person is expected to comply fully with the existing regulations and standards. Note that if the beneficiary of the exemption does not comply with its conditions, the exemption becomes null and void and the person must then comply fully with the regulations. Enforcement proceedings cannot be instituted against an exemption, but only against a regulation.

Subsection 5.9(2) of the Aeronautics Act authorizes the Minister to grant exemptions from the regulations, but it does not permit him/her to use this instrument to create completely new regulations. The Minister can exercise the exemption-granting authority to provide relief from an existing regulation, and can impose whatever conditions are needed to meet his/her responsibilities in ensuring that aviation safety is not affected, and that the exemption is in the public interest. Although these conditions may look like new regulations or standards, they are not. The conditions are the means by which any potential risk to aviation safety by allowing the exemption from the regulation is mitigated.

BAlthough it is understood that an exemption is not an appropriate instrument by which to regulate, in the circumstance where a specified population representing a particular segment of industry seeks voluntary compliance to standards that were omitted or need expansion due to technological development, an exemption may be appropriate for the interim period required until such time as amendment to the CARs and related standards complete the regulatory-change process.

Things To Remember

  1. An exemption cannot be dated retroactively and is effective only from the date on which it is signed by the appropriate delegated official on behalf of the Minister.
  2. An exemption cannot be written against a provision that imposes a duty on the Minister.
  3. Exemption fees made in accordance with subsection 104(1) of the CARs can only be waived by the Minister himself/herself.
  4. The party being exempt has the choice to follow either the exemption, or the regulation.
  5. However, once the choice is made to follow the exemption, the party must comply with its conditions.
  6. If the party chooses not to follow the exemption, the regulation applies.
  7. Enforcement can only be exercised against the regulation, not the exemption.
  8. When an exemption is required from a standard that is incorporated by reference into a regulation, the exemption must be written against the regulation to the extent of its relationship to the standard.
  9. If an exemption is being issued pursuant to a leasing arrangement, the lease should become an Appendix to the exemption document.
  10. Never make promises to the party making the exemption request that (a) it will be granted, and (b) it will be granted by a certain time limit. The issuance of an exemption is a privilege and cannot be guaranteed, and the time required for the process to be completed will depend on many factors over which you may have no control.
  11. After the party making the exemption request provides to the OPI the exemption request form, together with all the necessary supporting documentation, subject to the complexity of the issues, allow for approximately six (6) weeks for the exemption request to be processed and the exemption document legally vetted.

Checklist of Questions to Ask

  1. What functional areas of responsibility are raised by the issues identified in the letter of exemption request?
  2. Who are the parties involved making the request for an exemption?
  3. Who is the appropriate official who has the authority to issue the exemption as specified in the Ministerial Delegation of Authority Document?
  4. Why is the exemption necessary? What is the regulation preventing the party making the request for an exemption from doing?
  5. What specific regulatory provision and/or standard linked to what regulatory provision is the exemption being written against?
  6. Has the correct regulatory provision been identified? (Refer to Appendix L for the numbering convention.)
  7. Is the regulatory provision against which the exemption is being written an “offence-creating” regulation; i.e. with such words present as “no person shall”, or “the air operator shall”, or does it impose a duty on the Minister?
  8. Are there any conditions that must first be met before the exemption will even apply?
  9. Has the test for assessing the merits of the exemption request under the circumstances of your particular case been applied?

    1. How is the exemption in the public interest? Identify criteria.
    2. How is aviation safety not likely be affected? Identify criteria.
  10. The results of the test for assessing the merits of the exemption request and the criteria identified to support the arguments made by the party making the request then become the conditions of the exemption.
  11. What time period do you want the exemption to be in effect? Or until what event, or series of events occur? (The maximum time period is between 12 to 18 months.)
  12. If an exemption is considered further to a decision by the Branch to change the regulation or associated standard, have you instituted steps to generate an NPA to the pertinent regulation and standard?
  13. Where the policy pertaining to the specific regulatory amendment is amended after the NPA has completed the CARAC consultation process, has a follow-up procedure been set up to formally cancel the exemption?
  14. Once the NPA comes into effect, has a follow-up procedure been set up to formally cancel the exemption?
  15. Contact HQ for advice.

DOCUMENT FORMAT

Introduction

Note that an exemption as a legal document must contain certain essential elements of both substance and form to ensure its legal validity. By virtue of the fact that the exemption removes a party from complying with the requirements of a particular regulation, the exemption then becomes the “new legal regime”. The document must stand on its own and withstand legal scrutiny should circumstances unfold that would place the exemption in the public eye, and/or necessitate its revocation by the Minister. The following general guidelines hopefully will give assistance in drafting. However, depending upon the facts of any given situation or the legal nature of the issue, AARBH may have to make adjustments to the ultimate wording of the document.

General Structure

The exemption must be a stand-alone document and written on an independent sheet of paper. It must not be incorporated into a letter or other correspondence, nor include any extraneous information such as ordinary business matters. The document must speak exclusively to the exemption, its purpose, to whom it applies, the conditions that must be met in order for the exemption to come into effect, and the terms under which it will remain valid, and its expiry date.

Headings

The exemption should provide information under the following general headings, as appropriate:

1.  Introductory Paragraph should identify the source of power to exempt under either subsection 5.9(2) of the Aeronautics Act (exemption), or the specific provision number of the regulation (authorisation) on the part of a person or corporation (name and address), with description of what is required by the exempted regulation.

2.  Purpose.  Explain why the exemption is necessary, and how the current regulatory structure is preventing the party from doing what is desired.

3.  Application.  The document must clearly indicate to whom or to what entity the exemption applies. All identifying particulars are to be included here; such as Canadian aviation document registration numbers, aircraft identification by manufacturer, type, model serial number, registration marks, AOC number, etc. Also included under this heading would be any requirements that must first be satisfied before the exemption can take effect.

4.  Conditions:  The terms and conditions of any exemption will vary depending on the facts of the situation. The terms of the exemption are those criteria that were identified during the public interest test and aviation safety test, and can be included here. It must be clear that the exemption is in effect only if the conditions are satisfied throughout the validity period of the exemption.

5.  Validity:  The validity section defines the term of the exemption, as well as identifies grounds for cancellation setting out a chronology of potential triggering events which would allow for the revocation of the exemption by the Minister should circumstances require it.

6.  Cancellation:   There may be a number of circumstances which give rise to the need to legally revoke the exemption.  This must not be overlooked for there can be legal consequences if the document does not expire. For example, if an already-issued exemption requires some form of “amendment”, the exemption already in existence would need to be cancelled before the “revised” exemption could be reissued, otherwise two exemptions would have the same legal force and effect creating potential confusion should there be conflicting conditions. In addition, this could create a problematic effect should the Minister wish to revoke the exemption for breach of conditions where two exemptions and two sets of conditions co-exist.

This problem can be avoided by either including a cancellation clause at the bottom of the “amended” and reissued exemption, or issuing a stand-alone exemption cancellation document.  (Refer to Appendix I for a sample exemption cancellation.)

Signature of Delegated Authority

The signature line must state the date, the city and province where the exemption is issued, the delegated official who is signing the document on behalf of the Minister of Transport, as well as the person’s title, and HQ or Regional location.

APPENDIX G – SAMPLE EXEMPTION STRUCTURE

EXEMPTION FROM (PROVISION) OF THE
CANADIAN AVIATION REGULATIONS

(Exemption by Executive Decision)
Pursuant to subsection 5.9(2) of the Aeronautics Act, and after taking into account that the exemption is in the public interest and is not likely to affect aviation safety

OR

(Authorisation by Regulation)
Pursuant to (provision) of the Canadian Aviation Regulations, and after taking into account that the authorisation is in the public interest and is not likely to affect aviation safety . . .

I hereby exempt (person, corporation and address) from the requirement set out in (provision) of the Canadian Aviation Regulations requiring that (describe what is required in the regulation using the wording found in the provision from which an exemption is being sought), subject to the following conditions.

Purpose

The purpose of this exemption is to allow (person/corporation) to (describe what needs to be done to prevent the person or corporation outside of the requirements of the regulation, along with any other reasons that make the exemption necessary; i.e. to harmonize with U.S. standards, etc.).

Application

This exemption applies to (_____ model aircraft when operated by (name of company) in its _____ operations under Air Operator Certificate Number ______).

Conditions

This exemption is subject to the following conditions:

  1. . . . . .shall...;
  2. . . . . .shall...;
  3. . . . . .shall....

Validity (These three provisions are mandatory.)

This exemption is in effect until the earliest of the following:

  1. December 15, 2006 at 23:59 EST; (There must be a termination date, a maximum of 12 to 18 months.)
  2. the date on which any condition set out in this exemption is breached; or
  3. the date on which this exemption is cancelled in writing by the Minister where he is of the opinion that it is no longer in the public interest or is likely to affect aviation safety.

DATED at (City), (Province) this (date) day of (month), (year), on behalf of the Minister of Transport.

Signature Block of Delegated Official.

APPENDIX H – SAMPLE COMMERCIAL & BUSINESS AVIATION EXEMPTION

EXEMPTION FROM SUBSECTION 700.19(1) OF THE CANADIAN AVIATION REGULATIONS

Pursuant to subsection 5.9(2) of the Aeronautics Act, and after taking into account that the exemption is in the public interest and is not likely to affect aviation safety, I hereby exempt (Full Legal Name of Company, Full Business Address), operating under Subpart 5 of Part VII of the Canadian Aviation Regulations  (CARs), from the application of subsection 700.19(1) of the CARs, subject to the following conditions. This subsection requires that an air operator provide each flight crew member with time free from duty of one period of at least 36 consecutive hours within each 7 consecutive days, or one period of at least three consecutive calendar days within each 17 consecutive days.

Purpose

The purpose of this exemption is to allow the air operator, ABC Company, to conduct its day VFR, cargo-only aircraft operations by providing each flight crew member with flight duty time limitations and rest periods that accommodate the special circumstances of its northern air operation.

Application

This exemption applies to the following aircraft when operated by ABC Company, pursuant to its Air Operator Certificate Number xxxx, in its northern operation:

(Bristol) BR70 Freighter and Aviation Traders AT98 (Carvair).

Conditions

This exemption is subject to the following conditions

  1. The air operator shall hold an Air Operator Certificate authorizing day VFR, cargo-only operations;
  2. The aeroplane shall be powered by reciprocating engines; and
  3. The air operator shall provide each flight crew member with one period of at least 24 consecutive hours 13 times within each 90 consecutive days and 3 times within each 30 consecutive days.

Validity

This exemption is in effect until the earliest of the following:

  1. December 31, 2006 at 23:59 (EST);
  2. the date on which any of the conditions set out in this exemption is breached; or
  3. the date on which this exemption is cancelled in writing by the Minister where he is of the opinion it is no longer in the public interest, or is likely to affect aviation safety.

DATED at (City), (Province) this (date) day of (month), (year), on behalf of the Minister of Transport.

Signature Block of Delegated Official

APPENDIX I – SAMPLE EXEMPTION CANCELLATION

EXEMPTION CANCELLATION FROM (PROVISION) OF THE CANADIAN AVIATION REGULATIONS

The exemption from (provision) of the Canadian Aviation Regulations issued to (person/company and address) on (date) at (place) by the Director General Civil Aviation on behalf of the Minister of Transport is hereby cancelled because it is the opinion of the Minister that it is no longer in the public interest or is likely to affect aviation safety.

 

DATED at (City), (Province) the (day) of (month), (year), on behalf of the Minister of Transport.

Signature Block of Delegated Official

 

 

 

APPENDIX J – SAMPLE REGULATORY AMENDMENT IN PROGRESS EXEMPTION

EXEMPTION FROM SUBSECTION 701.02(2), PARAGRAPH 701.20(a) AND PARAGRAPH 602.126(1)(c) OF THE CANADIAN AVIATION REGULATIONS

Pursuant to subsection 5.9(2) of the Aeronautics Act, and after having taken into account that the exemption is both in the public interest and not likely to affect aviation safety, I hereby exempt all foreign air operators from the requirements set out in subsection 701.02(2), paragraph 701.20(a), and paragraph 602.126(1)(c) of the Canadian Aviation Regulations, subject to the following conditions.

Subsection 701.02(2) states that a person is not required to hold a Canadian Foreign Air Operator Certificate in order to conduct an overflight of Canada or to perform a technical landing in Canada unless the person operates the aircraft under section 701.19, 701.20, or 701.21.

Paragraph 701.20(a) states that for the purposes of section 602.126, a person may conduct a take-off in an aircraft where weather conditions are below the take-off minima specified in the Canada Air Pilot,if in the case of a foreign air operator, the foreign air operator is authorized to do so in its Canadian foreign air operator certificate and complies with the Commercial Air Service Standards.

Paragraph 602.126(1)(c) states that no pilot-in-command of an aircraft shall conduct a take-off if the take-off visibility, as determined in accordance with subsection (2), is below the minimum take-off visibility specified in the Canada Air Pilot in any case other than a case described in paragraph (a) or (b).

Purpose

The purpose of this exemption is to allow foreign air operators to operate to a “Take-off Minima - Reported Visibility RVR 1,200 (1/4 mile) at Canadian airports without being the holder of a Canadian Foreign Air Operator Certificate. 

Application

This exemption applies only to foreign air operators operating turbine-powered aeroplanes when conducting a take-off in Canada below published take-off minima in the event of a flight diversion, a landing due to technical reasons, or for refuelling purposes.

Conditions

This exemption is subject to the following conditions:

  1. The foreign air operator shall include, in the Company Operations Manual or applicable manual, detailed guidance on how to determine departure one engine inoperative climb gradient and obstacle clearance;
  2. The air foreign operator shall use a runway equipped with serviceable and functioning high intensity runway lights or runway centre line lights or with runway centre line markings that are plainly visible to the pilot throughout the take-off run;
  3. The pilot-in-command, at the employ of the foreign air operator, shall be satisfied that the required RVR 1,200 feet (1/4 mile) visibility exists for the runway to be used before commencing take-off;
  4. The foreign air operator shall ensure that the pilot-in-command and second-in-command attitude instruments (artificial horizons) on the aeroplane incorporate pitch attitude index lines in appropriate increments above and below reference line to at least 15 degrees, and be capable of ensuring ready depiction of total aeroplane attitude. The approved Failure Warning Systems which will immediately detect essential instrument and equipment failures or malfunctions shall be operative; and
  5. The foreign air operator shall hold the appropriate Operations Specification - Special Authorization/Approvals from its Regulatory Authority.

Validity

This exemption is in effect until the earliest of the following:

  1. the date on which any of the conditions of this exemption are breached;
  2. the date on which an amendment modifying the subject-matter of subsection 701.02(2) and paragraph 701.20(a) of the Canadian Aviation Regulations, or related standards, comes into effect; or
  3. the date on which this exemption is cancelled, in writing, by the Minister, where he is of the opinion that it is no longer in the public interest or it is likely to affect aviation safety.

DATED at Ottawa, Ontario this (date) day of (month), (year), on behalf of the Minister of Transport.

 

Martin Eley
Director General
Civil Aviation

APPENDIX K – SAMPLE AIRCRAFT CERTIFICATION EXEMPTION

EXEMPTION FROM PARAGRAPH 513.07(1)(a) OF THE CANADIAN AVIATION REGULATIONS AND PARAGRAPH 525.785(b) OF THE AIRWORTHINESS MANUAL

Pursuant to subsection 5.9(2) of the Aeronautics Act, and after having taken into account that the exemption is both in the public interest and is not likely to affect aviation safety, I hereby exempt the holder of supplemental type certificate #, from the requirements of paragraph 513.07(1)(a) of the Canadian Aviation Regulations only with respect to the requirements of paragraph 525.785(b) of the Airworthiness Manual made pursuant to section 525 of the Canadian Aviation Regulations, subject to the following conditions.

Paragraph 525.785(b) of the Airworthiness Manual establishes the minimum occupant general injury requirements for the certification of transport category aeroplanes. The details of the above provisions are provided in Appendix A to this exemption.

Purpose

The purpose of this exemption is to permit the holder of the supplemental type certificate # to modify specific product (description of product).

Application

This exemption applies to holder of supplemental type certificate # for the modification of specific product (description of product).

Conditions

This exemption is subject to the following conditions:

1.  ...shall...;

2.  ...shall...;

3.  ...shall....

Validity

This exemption is in effect until the earliest of the following:

  1. the date on which any one of the conditions set out in this exemption is breached; or
  2. the date on which this exemption is cancelled in writing by the Minister where he is of the opinion that the exemption is no longer in the public interest, or that it is likely to affect aviation safety.

DATÉE à Ottawa (Ontario), ce (date) jour de (mois) (année), au nom du ministre des Transports.

Martin J. Eley
Directeur, Certification des aéronefs
Aviation civile

Attachment – Appendix A

EXEMPTION FROM PARAGRAPH 513.07(1)(a) OF THE CANADIAN AVIATION REGULATIONS AND PARAGRAPH 525.785(b) OF THE AIRWORTHINESS MANUAL
APPENDIX A

Canadian Aviation Regulations

Approval of Modifications and Repair Designs

513.07(1)(a) An applicant for a supplemental type certificate, a limited supplemental type certificate or a change to these certificates shall show that the changed aeronautical product meets the standards of airworthiness that are in force on the date of application for the proposed change.
(amended 2003/06/05)

Standards of Airworthiness

525.01 The standards of airworthiness for the issuance of a type certificate in respect of a transport category aeroplane, or for a change to such a type certificate, are those specified in Chapter 525 of the Airworthiness Manual.

Airworthiness Manual, Section 525
(at Change 525-9.1)

525.785 Seats, Berths, Safety Belts, and Harnesses

(b) Each seat, berth, safety belt, harness, and adjacent part of the aeroplane at each station designated as occupiable during take-off and landing must be designed so that a person making proper use of these facilities will not suffer serious injury in an emergency landing as a result of the inertia forces specified in 525.561 and 525.562.

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