REGULATIONS AND YOU
- ISSUE 3/2009
- Copyright and Credits
- Guest Editorial
- To the Letter
- Flight Operations
- Feature: Regulatory Requirements for Flying Powered Para-gliders
- Maintenance and Certification
- Recently Released TSB Reports
- Accident Synopses
- Regulations and You
- Debrief: Farewell to Lorna deBlicquy
- VFR FLIGHT INTO ADVERSE WEATHER CAN BE DEADLY (poster)
- Take Five: Complacency
- Full HTML Version
- PDF Version
- Safety Management Systems-Civil Aviation Non-Compliance Event Review Process
Exemption from Pre-Publication
by Jean-François Mathieu, Chief, Aviation Enforcement, Standards, Civil Aviation,
Historically, Civil Aviation has addressed contraventions committed by aviation companies or their staff by conducting an investigation into the event in order to apply some type of punitive measure as a deterrent. With the advent of the safety management system(SMS) regulatory initiative, however, this process is changing.
In order to meet the goals of the Civil Aviation SMS Enforcement Policy, Civil Aviation has developed a process for its inspectors to follow when they become aware that a company (enterprise) with an SMS may have committed a contravention of the Canadian Aviation Regulations(CARs) or of the Transportation of Dangerous Goods Regulations(TDGR). This process is described in Civil Aviation Staff Instruction SUR-006: Safety Management Systems-Civil Aviation Non-Compliance Event Review Process http://www.tc.gc.ca/eng/civilaviation/opssvs/managementservices-referencecentre-documents-sur-sur-006-253.htm).
With the publication of this process, the Civil Aviation manager responsible for oversight and certification of an enterprise (enterprise manager) is directed to open a documented dialogue with the enterprise when apprised that a contravention may have been committed. The dialogue is intended to verify that the enterprise's SMS can, and will, appropriately address the circumstances that led to the contravention.
In order to accomplish this, the enterprise manager shall:
- verify that the event was reported internally within the enterprise's internal reporting program;
- evaluate whether or not the contravention was committed intentionally (more on this later);
- inform the enterprise that corrective measures that are intended to address the event are to be developed within a specified period (90 days typically).
Once the enterprise manager is satisfied that the organization's SMS has appropriately addressed the event, no further action will be taken against the enterprise. In order to support and promote the use of this SMS-oriented review process, the Aviation Enforcement Division will not conduct its own investigation and will not impose punitive measures (typically, a monetary penalty or temporary document suspension) against either the person who committed the contravention or the enterprise itself. Aviation Enforcement will open an investigation only if the enterprise manager is not satisfied that the goals of the Civil Aviation SMS Enforcement Policy are being met.
If the enterprise manager determines that the event was not internally reported (without justification), or is not satisfied by the proposed corrective measures, the manager may forward the matter to Aviation Enforcement for its action, which may include the imposition of punitive measures. Alternately, if the enterprise manager is not entirely satisfied with the proposed corrective measures, the manager may seek revised or enhanced proposals from the enterprise as long as such a course of action is likely to result in an acceptable resolution.
As indicated earlier, the enterprise manager will evaluate the nature of the contravention to determine if it was committed intentionally. The Staff Instruction also provides some guidelines to determine if intent was involved. Of course, intent is a complicated subject, and as a result, the enterprise manager is afforded some latitude in making this evaluation. When the enterprise manager determines that the contravention was likely committed with intent, the manager will forward the matter to Aviation Enforcement-the Civil Aviation SMS Enforcement Policy does not apply to intentional contraventions. If unsure about the intent, the enterprise manager is counselled to remain within the process in order to seek an SMS-generated resolution that would best serve the goals of improving safety and compliance. In addition, where the employee has committed the contravention with intent, but the enterprise does not support the behaviour that led to the contravention, the enterprise manager is directed to remain within the SMS event-review process. It is recognized that pursuing an individual for a single contravention will not necessarily address any cultural or organizational issues that may have played a role in the contravention. By approaching such an event from an SMS-oriented perspective, Civil Aviation will be more likely to effect the necessary cultural and organizational changes required for overall improvement in safety and compliance. For these reasons, the enterprise manager shall, other than in extreme circumstances that fall outside the scope of the enterprise's control, evaluate the intent of the organization rather than the intent of the individual who committed the contravention. As indicated above, the purpose of evaluating intent is solely to determine if the process should be used.
To encourage organizations that are not yet required to have an SMS to adopt the SMS framework and to accommodate enterprises that are developing their SMS as new regulations regarding SMS requirements come into force, Civil Aviation has adopted a policy whereby the Staff Instruction shall apply to a transitional enterprise. The Civil Aviation SMS Enforcement Policy has defined transitional enterprises as those that "have been diligently involved in the development of an SMS, which would eventually meet the requirements of the new SMS regulations, and are following a ‘phase-in' process similar to the one outlined in TC-published advisory material such as TP14343-Implementation Procedures Guide for Air Operators and Approved Maintenance Organizations." To benefit from this process, the enterprise's SMS must have developed to the stage where the following conditions are met:
- the enterprise has developed an effective internal reporting program supported and promoted by the company's management;
- the enterprise's SMS is capable of a reactive event-analysis process adequate for determining root cause and developing corrective measures;
- in order to meet the needs of the process, the corrective measures are made readily available to the Civil Aviation enterprise manager for the manager's review and acceptance.
It is a goal of the SMS initiative that aviation enterprises take ownership of their own safety and compliance issues. In order to support this concept, this event-review process accepts that if an enterprise recognizes and corrects its own safety and compliance issues through the implementation of SMS programs, traditional enforcement should not be necessary.
Transport Canada will not compromise safety nor ignore any contraventions of the regulations, but will encourage the development of a safety culture as an essential element of the SMS framework.
by Pierre-Laurent Samson, Civil Aviation Safety Inspector, Regulatory Affairs, Policy and Regulatory Services, Civil Aviation, Transport Canada
Most of the regulatory amendments processed by Transport Canada Civil Aviation's Regulatory Affairs Division have a "low" level of impact, as defined in the Triage Questionnaire. The purpose of these amendments is to clarify existing provisions, bring Canadian regulations in line with those in the United States or Europe, respond to a request made by the Standing Joint Committee for the Scrutiny of Regulations, or correct one of the following errors:
- minor errors in format, syntax, spelling or punctuation;
- typographical errors, archaisms, anomalies, numbering errors;
- inconsistencies between the English and French versions;
- unclear, nonessential information;
- obsolete regulations, that is, regulations that are outdated but still legally enforceable;
- spent regulations that have no further application or effect.
A low level of impact implies that the amendment will cause little or no controversy and that it is supported by the main stakeholder groups. The TBS believes that, in such cases, pre-publication in the Canada Gazette, Part I, adds little to the regulatory amendment process. The TBS analyst who is assigned to the department decides whether or not to grant an exemption from pre-publication for a regulatory amendment after the department has demonstrated that the impact of the proposed amendment is nil or low, that the stakeholders have already been consulted, and that the majority would support the regulatory proposal. The time and resources that would otherwise have been used for the analysis would therefore be dedicated to the analysis of files with higher levels of impact, which require more work.
Since the implementation of the triage process, only two files have been granted an exemption from pre-publication and published directly in the Canada Gazette, Part II, after an assessment confirmed a low level of impact. The files involved amendments regarding the International Civil Aviation Organization's(ICAO) language requirements and those regarding monetary penalties. If more than two years have passed since stakeholder consultation was conducted on a proposed amendment, the TBS asks that the department requesting the exemption from pre-publication inform the stakeholders that it intends to proceed with the file.
Civil Aviation currently has about 50 files involving proposed amendments to the Canadian Aviation Regulations(CARs). The following are examples of a few files, which are at different stages in the regulatory process.
Amendments are proposed to Part I-General Provisions regarding the maximum monetary penalty that may be imposed on individuals or corporations for violations. The amendments would introduce 18 new provisions, repeal three that will no longer result in violations, and make corrections to two. The TBS approved the request for an exemption from pre-publication.
Amendments are proposed to Part III-Aerodromes, Airports and Heliports regarding certified water aerodromes. The purpose of these amendments is to increase the safety of certified water aerodromes to a level equal to the current level of safety found at certified land airports. The following water aerodromes would be affected: Victoria Harbour, Vancouver Harbour, Vancouver International, Nanaimo Harbour and Prince Rupert/Seal in British Columbia; and Québec/Lac St-Augustin, Montréal/Boisvert & Fils, Montréal/Marina Venise and Delco Aviation in the province of Quebec. The triage statement for these amendments suggests a level of impact that will require pre-publication.
Amendments are proposed to Part IV-Personnel Licensing and Training regarding the conduct of flight tests. The purpose of these amendments is to move the flight test rules of conduct from the policies where they are now to a new subpart of Part IV. The TBS approved the request for an exemption from pre-publication.
Amendments are proposed to Part V-Airworthiness regarding safety management systems (SMS). The purpose of these amendments is to clarify the existing SMS requirements, have them apply to all certificate holders under this Part, and require the implementation of a fatigue risk management system in the aviation maintenance environment. The triage statement for these amendments suggests a level of impact that will require pre-publication.
Amendments are proposed to Part VI-General Operating and Flight Rules regarding means of emergency location (e.g. emergency locator transmitters[ELT] capable of broadcasting on frequency 406MHz, or any alternate means of emergency location that meet the performance criteria for a 406MHz ELT). The purpose of these amendments is to continue to ensure rapid emergency response to distress situations once the Cospas-Sarsat satellite system stops responding to distress signals broadcast on 121.5/243MHz. These amendments have already been pre-published and are proposed for publication in the Canada Gazette, Part II.
Amendments are proposed to Part VII-Commercial Air Services regarding the terrain awareness and warning system (TAWS) for aircraft operating under subparts 703, 704 and 705 and flying in accordance with instrument flight rules (IFR). The purpose of these amendments is to reduce the risk of controlled flight into terrain (CFIT). The triage statement for these amendments suggests a level of impact that will require pre-publication.
The CARs amendments that Transport Canada has presented to the Canada Gazette, Parts I and II, can be found on the following Web site: http://www.tc.gc.ca/eng/civilaviation/regserv/affairs-carac-npas-menu-776.htm.
Reminder to holders of Canadian air traffic controller
licences and flight crew licences and permits
If you have not already applied for your new Aviation Document Booklet to replace your existing licensing documents, please go to our Web site to download the application form:
If you do not have access to the Internet, mail in your request for an application form at:
Transport Canada, Flight Crew Licensing (AARTL)
Place de Ville, Tower C, Ottawa, ON, Canada K1A 0N5
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