Regulations and you

Transborder Flights: If You Want Alerting Service, You Need to Know How to Get It!

by Roberta Sprague, Civil Aviation Safety Inspector, ANS Operations Oversight, National Operations, Civil Aviation, Transport Canada

On November 26, 2008, Frank Smith left his home in Winnipeg, Man., and flew to Minneapolis, Minn., in his C172 for a week-long business meeting.2

The meeting ended early, so Frank decided to surprise his family, who were vacationing in Sioux Lookout, Ont. He filed a VFR flight plan with an American automated flight service station (AFSS) in accordance with the regulations, checked the weather, jumped in his C172, and headed to Sioux Lookout. He would be a bit pushed for fuel, but the weather was okay and he would have a bit of a tail wind.

About 30 min north of the border, the weather started to close in and by the time he reached the 80-miles-to-go point, he was flying at tree-top height. Skill and luck combined was not enough…he clipped a wing and cart-wheeled through the trees. He was ejected from his plane—which saved his life, as there was an immediate post-crash fire that consumed what was left of the C172, including the emergency locator transmitter (ELT). His left leg and right wrist were broken. His injuries would not have been fatal if he had been rescued quickly—and he should have been, as he was on course according to his GPS just before impact—but Frank died five days later of exposure. No one knew he was overdue in Sioux Lookout, and no search had commenced because his flight plan had not been activated, so it had not been transmitted to Canadian air traffic services (ATS). No one in Canada knew he was coming.

Transborder flights

Sadly, this type of event happens all too often with flights coming to Canada from the United States. A flight plan that gets filed but not activated is a completely avoidable occurrence and should not happen; yet, from August 1 to December 31, 2008, it happened at least 78 times.

The number of instances where VFR alerting service is not provided to pilots entering Canada from the United States continues to grow. The main reason for this is lack of awareness on the part of the pilot, who assumes that the flight plan has been activated upon departure from the United States, just as it would be in Canada.

There is one key difference between American and Canadian regulations regarding flight plan activation, and as a pilot, you must understand this difference if you conduct a transborder flight. A flight plan filed in Canada will be activated automatically at the proposed time of departure (unless otherwise specifically requested), commonly known as “assumed departure”. A flight plan filed in the United States must be activated by the pilot. After filing a flight plan, the pilot needs to contact an American flight service station (FSS) to activate it (unless otherwise specifically requested). A pilot can also ask a control tower to activate his flight plan, but this procedure should be avoided at busy airports.

If the pilot does not ask for VFR flight plan activation, it will be held by the American FSS until 1 hr after the proposed departure time, and then it will be discarded. This is equally true for flights that are completed wholly within the United States.

The subject of flight plan requirements was addressed in an article published in Aviation Safety Letter (ASL) 1/2007, which can be found on the Civil Aviation Web site, at The article, titled “Transborder Flights Without a Flight Plan—Revisited,” provides information derived from the Federal Aviation Administration’s (FAA) Aeronautical Information Manual (AIM) and the Canadian Aviation Regulations (CARs) regarding the different regulatory requirements.

Filing a flight plan to fly VFR from the U.S. and land in Canada is not only a regulatory requirement; it is a procedure designed to protect your life and that of your passengers. The successful completion of your flight is linked in large part to your competence as a pilot. However, should anything happen en route, your filed flight plan won’t do you or your passengers any good if the activation process was not triggered. When you depart VFR from the U.S., that trigger is you! Your life might depend on it.

Alerting service is valuable. Activate that flight plan!

Enforcement Considerations When Flying Across the Border

by Jean-François Mathieu, Chief, Aviation Enforcement, Standards, Civil Aviation, Transport Canada

Data shows that every year there are a significant number of aircraft that cross the Canada/U.S. border without an active flight plan. This constitutes a violation of Canadian Aviation Regulation (CAR) 602.73(4), which consequently requires Transport Canada’s Aviation Enforcement Division to take action.

In Canada, CAR 602.73(4) requires that pilots file a flight plan before operating an aircraft between Canada and a foreign state. In the U.S., Federal Aviation Administration (FAA) regulations require that pilots conducting flights between Canada or Mexico and the United States file and activate a flight plan, communicate with the air traffic services (ATS) unit at the time of the border crossing, and squawk an assigned discrete transponder code [Federal Aviation Regulation (FAR) 91.707].

When crossing the Canada/U.S. border, ATS from both sides of the border are involved with the pilots. Data suggests that ATS units are very rarely accountable for occurrences of transborder flights without active flight plans. ATS system failures or transmission problems contributed to a certain increase of occurrences for a brief period. However, the ultimate responsibility for assuring a flight plan is filed and activated always rests with the pilot.

Some pilots may believe that customs request procedures automatically arrange for the filing of a transborder flight plan. However, this is incorrect, as these are two separate processes. Two articles published in Aviation Safety Letter (ASL) 2/2009 are excellent complements to this article and are definitely recommended reading. The first one, by NAV CANADA, titled “The Life of a Flight Plan”, addressed the importance of filing a flight plan, and imparted insight on the progression of flight plan information for ATS planning. The second one, titled “Border-Crossing Procedures Revisited”, was written by the Canadian Owners and Pilots Association (COPA) and focused specifically on the new customs requirements. It clarified any ambiguity concerning the “how to” of flying to a foreign state.

For example, when crossing the border from Canada to the United States, and as clearly explained in the aforementioned COPA article, a pilot must access the Electronic Advance Passenger Information System (eAPIS) to complete the U.S. Customs and Border Protection Agency (CBP) border-clearance process. Introduced in May 2009, eAPIS is an on-line customs-reporting tool—an Internet portal for use by pilots flying into or out of the U.S. Electronic submission is mandatory. However, this is not your flight plan, it is simply the customs arrangement.

In Canada, the monetary penalty for contravening CAR 602.73(4) can be as high as $1,000 for the first offence. The responsibility rests solely with the pilot to comply with this regulation. Moreover, pilots need to be aware that not filing and activating a flight plan means alerting service is not provided, which, in the unfortunate event of a missing aircraft or an accident, could result in delayed search and rescue activity, or no search and rescue activity at all.

Pilots are reminded to file their flight plans, and to ensure that they activate them both to and from a foreign state.

The objective of the Transport Canada Aviation Enforcement Program is to promote compliance with aviation regulations in Canada and in international airspace under Canadian jurisdiction. We encourage open communication between the aviation community and Transport Canada in order to enhance and maintain the evolving safety culture.

Flying for Money!

by the Advisory and Appeals Division, Policy and Regulatory Services, Civil Aviation, Transport Canada

As some of you may know, Canadian aviation law makes an important distinction between private and commercial aviation, the latter being subject to both elevated standards and increased regulatory scrutiny, resulting in an exceptionally high level of aviation safety.

To this end, a definition of “hire or reward” has been created in the legislative framework. That definition is set out in subsection 3(1) of the Aeronautics Act, as follows:

“hire or reward” means any payment, consideration, gratuity or benefit, directly or indirectly charged, demanded, received or collected by any person for the use of an aircraft;

Courts have consistently given a broad, expansive and liberal interpretation to the term “hire or reward”. The scenarios that follow illustrate this point.

In two older court cases, two operators of remote fishing or hunting camps had offered a fly-in service to guests at no extra charge. In other words, the rate charged for accommodations and guide services was the same whether the customers chose to use the fly-in service offered by the camp operators, or whether they decided to pay someone else to transport them to the camps. The hunting camp operators argued that, because they received no additional fee for the offered flights, there was no “hire or reward” situation. The courts in both cases rejected this argument and found that the free flights provided each operator a clear, albeit indirect, benefit. Therefore, the flights in question were “hire or reward” flights and the operators were found to have been operating a commercial air service without the appropriate licence.

In another, more recent, court case, a pilot was the director of Company A and Company B. Company A was the registered owner of the aircraft flown by the pilot. Company A rented the aircraft to Company B, and Company B was paid for bringing equipment, persons or other things to different sites. The Federal Court decided that, since Company A was the registered owner of the aircraft and had received an indirect benefit from the flights, it was required to have an air operator certificate (AOC) as set out in subsection 700.02(1) of the Canadian Aviation Regulations (CARs).

There are situations where a person may operate for “hire or reward” and not require an AOC. One situation is covered by subsection 700.02(3) of the CARs, which allows farmers who own their own planes to use them to spray herbicides within a 25-mi. radius from their farm centre.

Another situation, covered by subsection 700.02(4) of the CARs, concerns sightseeing flights conducted by flight schools. This type of activity is permitted, without the requirement for an AOC, if the various conditions set out in the CARs are met: specifically, the pilot must hold a flight training unit (FTU) operator certificate and a flight instructor rating, the flights must be conducted in accordance with visual flight rules (VFR) in a single-engine aircraft with no more than nine passengers, and for the purpose of sightseeing.

Another situation where someone could conduct an operation for hire or reward without an AOC would be if the Minister issued an exemption. Pursuant to subsection 5.9(2) of the Aeronautics Act, the Minister can issue exemptions from the application of any regulation, should the Minister be of the opinion that such exemptions are in the public interest and not likely to adversely affect aviation safety or security. For example, situations involving charity flights, where pilots have been reimbursed only for fuel costs, have been issued exemptions in the past.

Another twist to the above concepts can be found if we look at section 401.28 of the CARs. This section deals with the reimbursement of costs incurred in respect of certain flights, by private pilots, in very specific circumstances.

Subsection 401.28(2) allows private pilots, who own their own aircraft, to receive reimbursements from passengers towards the operational costs of running the aircraft. Subsection 401.28(3) allows the private pilot to be reimbursed by his employer (who does not normally employ the person as a pilot). Subsection 401.28(4) allows private pilots to receive reimbursement when the flights are conducted for a “charitable, not-for-profit or public security organization”, on a volunteer basis. The three scenarios above are available only when certain specified criteria or conditions are met.

So, as we can see, the term “hire or reward” can be difficult to apply. Each situation must be looked at carefully in light of the case law and regulations that apply.

2. The occurence is real. Names and places have been changed.

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