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Did You Know - About Changing the CARs?

By Adam Hunt

 

COPA represents its members at the Canadian Aviation Regulatory Advisory Council (CARAC) and its nine Technical Committees. There is one Technical Committee for each part of the CARs (and two for Part V – one for Maintenance and Manufacturing and one for Aircraft Certification).

TC presents Notices of Proposed Amendments (NPAs) to the CARs for consultation with the aviation industry during these meetings. The meetings are well attended and TC does often accept requests from industry, including COPA, for changes to NPAs before they become CARs.

While most of the proposed changes to the CARs come from TC itself, some are requested by industry representatives. Until recently if changes were proposed to the CARs from either TC or industry, they were considered by TC and, if accepted by TC, NPAs were drawn up and they were presented at CARAC for consultation.

Last year that process changed due to a new policy at TC. The changes are going to have a big effect on future changes to the CARs and the representation work done by COPA and other industry associations.

In the past many proposed CAR amendments were presented by TC or requested by industry because someone simply believed the amendment would be a good idea. The NPA was then debated at CARAC and passed or sent back to be reconsidered. CARAC is an advisory body only, so even if it rejects NPAs TC has the power to pass them anyway and make them CARs. In many cases opinions, informed or otherwise, prevailed.

TC’s Flight Safety initiative Flight 2005, adopted in 1999, committed TC to “adopting a data-driven approach in developing strategies to enhance safety”. Furthermore the Government of Canada Regulatory Policy 1998 requires that “When regulating, regulatory authorities must ensure that:

1. Canadians are consulted, and that they have an opportunity to participate in developing or modifying regulations and regulatory programs;

2. They can demonstrate that a problem or risk exists, federal government intervention is justified and regulation is the best alternative;

3. The benefits outweigh the costs to Canadians, their governments and businesses. In particular, when managing risks on behalf of Canadians, regulatory authorities must ensure that the limited resources available to government are used where they do the most good.

All of this has led TC to require that a Risk Analysis (RA) be completed before any NPAs are drafted to amend CARs. This policy applies for all proposed changes to the CARs with a few exceptions, such as for simple administrative changes and for harmonization with international agreements.

On the surface the requirement to complete an RA before proposing a change to a regulation seems simple enough, but the implications are far-reaching.

The first implication is that an RA cannot be carried out without data. That means that research has to be done to find existing data on the subject or else original research must be conducted.

Once the information needed is collected and analyzed, the RA can be done. TC has adopted a modified version of the Canadian Standards Association’s CSA Q850 Risk Assessment process. This is a good process that ensures that nothing is missed in considering all the factors involved. It also requires consultation with those people who may be affected. TC has a booklet available on their website Risk Management & Decision-Making in Civil Aviation (TP 13095) that explains the basics of this process. TC has also trained its own staff in the preparation of these RAs and, after a few early RAs that were sub-standard, are now producing credible assessments of the risks involved in passing amendments to the CARs.

As a companion to the TP 13095 booklet, an example of the best RA done by TC in 2004 is available on the COPA website.

The advantages of this new system are twofold. First this means that TC has to produce good data and a complete analysis of that data to pass changes to the CARs – no more opinion-driven changes to the CARs!

Secondly the RA process itself means that TC staff have to look very carefully at whether an amendment it justified by this relatively objective process. In some cases they are finding that the RA process shows that the amendment isn’t justified and therefore the project stops there. This means that TC is spending more time on worthwhile changes and less time on less useful or lower priority changes. The end result should be to apply TC staff to the areas where changes are objectively needed.

The main disadvantage of the RA process is that it takes time. In theory this is actually an advantage because it should save efforts where they aren’t needed, but the net effect will be far fewer NPAs coming to CARAC for consideration.

All of this applies if TC wants to make a change to the CARs, but it also applies if industry associations, like COPA, want changes to the CARs, too.

TC staff has made it clear that associations can ask TC under the CARAC Charter rules to consider amending the CARs. If that means that TC has to gather the data and do the RA as well as drafting the NPAs, then it might take a while for it to come to the CARAC table for consultation. What would speed up the process would be if the organization requesting the change gathered its own data, carried out its own RA and then suggested changes to the CARs based on that process.

This does have a one great advantage – presenting TC with complete data and a thorough RA will make it hard for them to ignore the well-supported case for change that will result. The process removes a lot of the conflicting opinions that used to result from this situation and replaces them with data and a careful assessment of the risks to be managed.

The disadvantage is that anyone who wants a change to the CARs now has to be prepared to do the work to make that happen. This means that they will have to gather the data available or do the original research to find appropriate data and then complete the RA process. Along the way this will automatically answer questions such as:

Who wants this and why?

How many people and aircraft will be affected?

Who will benefit from this and who will be disadvantaged, if anyone?

What impact will this have on those affected, on jobs and the economy?

What costs will there be and who will pay?

How would this affect our international obligations, such as to ICAO?

What other risks are there in doing this and how could they be controlled?

What other alternatives are available?

Overall this shift in focus at TC to a “risk-based and data-driven approach” is a good thing for aviation in Canada. It means that any new changes to the CARs will have to be well thought out and supported by data or else they won’t be become part of the CARs. For aviation associations involved in the CARAC process, like COPA, it means that we have to pick the changes that we want in the CARs very carefully. Each change requested now will take much more preparation and research if it is to be taken seriously and eventually incorporated in the CARs.

As a companion to the TP 13095 booklet, an example of the best RA done by TC in 2004 is available on the COPA website.