SOR/2016-261: Regulations Amending the Canadian Aviation Regulations (Aerodrome Work Consultations)
REGISTRATION OF FEDERAL REGULATION - VIA OIC DATABASE, PRIOR TO PART II OF THE GAZETTE
September 30, 2016
REGULATORY IMPACT ANALYSIS STATEMENT (This statement is not part of the Regulations.) Issues Operators wishing to develop a new aerodrome or to significantly modify an existing aerodrome, whether certified or not, are not currently required to conduct consultations with affected stakeholders. Matters integral to aviation fall under federal jurisdiction, including aerodromes. However, the federal ... (Click for more)
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Published on September 30, 2016
SOR/2016-261: Regulations Amending the Canadian Aviation Regulations (Aerodrome Work Consultations)
REGULATORY IMPACT ANALYSIS STATEMENT (This statement is not part of the Regulations.) Issues Operators wishing to develop a new aerodrome or to significantly modify an existing aerodrome, whether certified or not, are not currently required to conduct consultations with affected stakeholders. Matters integral to aviation fall under federal jurisdiction, including aerodromes. However, the federal authority, unlike municipal and provincial authorities that have consultation processes in place for significant changes to land use likely to have an impact on the community, do not have a public engagement requirement to identify and mitigate stakeholder concerns in advance of aerodrome development. The municipal and provincial stakeholders do not necessarily have to be consulted prior to the development of a non-certified aerodrome within their own jurisdiction. As a result, the lack of coordinated development planning can lead, for example, to inefficient land use and increased complaints from local constituents due to the impact of unexpected development. Operators and stakeholders seeking aerodrome certification are required to have a consultation process, but do not have a federal standard to guide them on what constitutes meaningful consultation. The implications for industry and other stakeholders include inconsistent approaches to consultation, insufficient information shared with affected stakeholders, and costs and delays for proponents/operators who — upon completing what they deem to have been an appropriate level of stakeholder engagement — find themselves caught in legal disputes over the validity of their process instead of commencing with their development. Background The Government of Canada has exclusive jurisdiction over aeronautics in Canada and has established a legal framework through the Aeronautics Act (the Act) and the Canadian Aviation Regulations (CARs), which sets robust safety requirements for the civil aviation industry. Under this legislation, the Minister of Transport is responsible for the promotion of aeronautics and the Governor in Council has the authority to make regulations respecting activities at aerodromes, including the location, inspection, certification, registration, licensing and operations. The definition of an aerodrome encompasses both certified and non-certified aerodromes, both of which can be either registered or non-registered aerodromes. Aerodromes that are registered appear in the Canada Flight Supplement. There are approximately 2 000 registered aerodromes, of which 547 are certified, and there are an estimated 5 000 unregistered aerodromes. It is understood and recognized that aerodromes are engines for nearby communities and are vital to the growth of a number of Canadian industries, and that the current legislative framework for activities at aerodromes has generally worked well, particularly during the initial growth of aviation in Canada. However, the dynamics of aerodrome development and operations, as well as the needs and expectations of Canadians, have evolved considerably due to economic and socio-political factors, including increased urbanization and densification around aerodromes. These factors, coupled with the need for a strong aviation transportation system, illustrate the need for increased communication in advance of aerodrome development to help understand and mitigate public concern, promote Canada’s aviation sector, and satisfy the growing need to keep moving people and goods. A common concern raised by stakeholders to the Minister is the absence of a regulatory requirement for proponents of aerodromes to notify affected stakeholders prior to aerodrome development, including the establishment of new aerodromes and expansion at existing aerodromes. To address the concern, the Economic Action Plan 2014 Act, No. 2 amended the Aeronautics Act to provide the Minister of Transport with the authority and necessary tools to effectively respond to an increasing number of aerodrome issues pertaining to development, location, land-use and consultation. The amendment provided the Governor in Council with the authority to make regulations to prohibit the development or expansion of aerodromes or a change to the operation of aerodromes, as well as the authority to make regulations to require proponents and operators of aerodromes to consult prior to the development or expansion of an aerodrome or a change to its operations. Objectives The objectives of the amendment are as follows: To encourage responsible aerodrome development and operation by requiring proponents to consult with affected stakeholders in advance of undertaking aerodrome work by following a structured notification process. To strengthen the consultation process for aerodrome work by providing details within the CARs that will introduce greater clarity and predictability around developments, compel increased communication to identify and mitigate concerns in advance of development, reduce post-construction complaints from affected stakeholders, reduce the chance of delay and costs associated with process-related challenges brought on by affected stakeholders and allow for better coordination of land use by all interested stakeholders. Description The amendments to the Canadian Aviation Regulations were born out of the concerns raised by interested parties adversely affected by aerodrome developments, by proponents frustrated by costly administrative and legal delay, and by the general aviation community concerned for their future in Canada. The nature of the concerns centre on improved communication in advance of construction between proponents of aerodrome developments and those most likely to be affected by the development. Requiring consultation in advance of commencing construction will allow for many concerns to be proactively raised and mitigated. The current regulatory requirement to consult is limited to those seeking to certify an aerodrome as an airport or a heliport and, even then, they are only required to consult with local land use authorities [as per paragraphs 302.03(1)(a) and 305.08(1)(d)]. The CARs do not define what constitutes meaningful consultation, which has lead to inconsistent approaches and uncertainty around whether the requirement has been met. The amendment broadens the requirement to consult to include anyone seeking to undertake a prescribed aerodrome work at a certified or non-certified aerodrome, whether it is the creation of a new aerodrome or making a significant change at an existing one. The amendment also provides minimum expectations for how the consultation should be conducted, including timelines, who to notify and under what circumstances. Recognizing that developments with the greatest possibility of impact on nearby stakeholders warrant the need for consultation, the Department of Transport (Transport Canada) identified that only those seeking to build new aerodromes and/or undertake significant aeronautical changes at existing aerodromes will be required to consult. The amendments define aerodrome work as the construction of a new aerodrome and building a new runway at an existing aerodrome. Lengthening an existing runway has also been included. However, in recognition of differences between small and large aerodromes and so as not to capture all extensions, and to focus primarily on those extensions likely to lead to an increase in level of service, only extensions in excess of 100 m or 10% of overall length (whichever is greater) are subject to the amendments. To ensure that those most likely to be affected by a proposed work receive information about the proposed work and have an opportunity to share comments and concerns, proponents of aerodrome work will be required to notify interested parties prior to undertaking the prescribed aerodrome work. The amendments outline a list of interested parties to be notified which is geographically determined as follows: If a built-up area of a city or town is located within a radius of 4 000 m from the location of the proposed aerodrome work, notice must be given to the provider of air navigation services; the Minister; the operator of a certified or registered aerodrome within 30 nautical miles of the aerodrome work; the authority responsible for a protected area within 4 000 m of the aerodrome work; the local land use authority for the land on which the aerodrome work is being undertaken; and the public within 4 000 m of the aerodrome work. In any other case, the provider of air navigation services; the Minister; the operator of a certified or registered aerodrome within 30 nautical miles of the aerodrome work; the authority responsible for a protected area within 4 000 m of the aerodrome work; the local land use authority for the land on which the aerodrome work is being undertaken; and any owner of land immediately bordering land on which the aerodrome work would be conducted. The amendments prescribe minimum requirements for consultation. Although flexible enough to accommodate the differing complexities of projects that could be undertaken at Canada’s 7 000-plus aerodromes, the requirements are prescriptive enough to introduce certainty for proponents and for stakeholders alike so that engagement is conducted in a transparent and meaningful manner. The amendments allow all parties to understand under what circumstances consultation is required, what information about the aerodrome work must be shared and the manner in which it is shared, what the opportunities are for affected stakeholders to provide feedback. It is anticipated that, by increasing the amount of information shared in advance of construction, most concerns can be heard and addressed proactively with the goal of mitigating negative impacts to the greatest extent possible. The amendments require a minimum of 75 days between the notification and the commencement of the aerodrome work, notwithstanding any time required to prepare the summary report. Transport Canada recognizes that more than 75 days may be required for more complex works or for works in built-up areas and the amendments allow for the proponent to extend the length of consultation to reflect the complexity of the development. The proponent is required to notify all interested parties by way of a notice and by placing a sign in plain view of the public where the aerodrome work will be undertaken. The notice and the sign must include a drawing and description of the proposed works, the estimated start and completion date, contact information of the proponent, and by what day comments must be received, which must be at least 45 days from the initial date of notice. The proponent will be required, as proof of having consulted, to prepare a summary report of the consultation and submit it to the Minister as soon as practicable. It must contain a description of the proposed work, a description of the measures taken by the proponent to comply with the requirements, the persons who were notified, a summary of the comments and objections received and how the comments have been disposed of, and any objections that were not or could not be addressed. The report must also be available to anyone that requests it for a period of at least five years. The proponent cannot start the proposed aerodrome work before the end of 30 days after the date on which the summary report is provided to the Minister. Proponents must start the aerodrome work within five years of the submission of the summary report. If more than five years passes, the proponent or operator will be required to undertake a new consultation. Transport Canada is cognizant there are some circumstances when these amendments should not apply and the following exemptions are provided: Heliports and aerodromes primarily used for helicopter operations; Temporary aerodromes for the provision of emergency services such as forest fire suppression, medical necessity, law enforcement activities and search and rescue; Aerodromes used primarily for agricultural operations; Water aerodromes; and Military aerodromes, which are currently exempt and will remain exempt. Finally, the amendment revises CARs section 302.03, “Issuance of Airport Certificate,” so that this consultation process will satisfy the requirement to consult as a condition of certification. “One-for-One” Rule The “One-for-One” Rule applies to this amendment and will result in an “IN” for the purposes of the “One-for-One” Rule. The amendment increases the administrative burden on industry because it requires proponents to prepare a report summarizing consultation activities, submit the report to the Minister and keep the summary report for a period not less than five years from the date of its completion. For the purposes of the “One-for-One” Rule, only the administrative burden on a business is estimated. “Business” means a person or entity that engages in commercial activities in Canada other than for a public purpose. Aerodromes owned by the federal government, municipalities, provinces or not-for-profit entities (such as airport authorities) and personal use aerodromes would not be considered businesses. The majority of the annual aerodrome work will be undertaken at smaller aerodromes and not at the major international airports. It is estimated that of the 547 certified aerodromes in Canada, approximately 3–5 projects per year could be initiated. In addition, of the approximately 2 000 registered aerodromes, perhaps 200 could potentially be candidates for an aerodrome work project. For the purposes of illustrating a worst case administrative burden, the highest possible number of aerodrome work in a single year is 205. Of those 205 aerodromes, it is assumed that at most 10% of the smaller aerodromes would be considered businesses and none of the larger aerodromes would be considered a business. It is assumed that it will take 8 hours to prepare the notification summary report for the estimated 20 small aerodrome work per year. It is assumed that to submit the summary report to the Minister and file the report, it will take 0.3 hour of a manager’s time. Thus, the combined annualized administrative burden for all possible proponents affected is estimated to be $6,048. Small business lens The small business lens does not apply to the amendment as the nationwide cost impact is expected to be less than $1 million annually. In addition, the amendments offer alternative notification requirements if a built-up area of a city or town is not located within a radius of 4 000 m from the location of the proposed aerodrome work, which is expected to have less of a cost impact on smaller rural aerodromes. Consultation Through its principal means of reaching out to industry — the Canadian Aviation Regulation Advisory Council (CARAC) Web site and by way of email to 525 stakeholders — Transport Canada posted a preliminary assessment document to determine how best to proceed with the creation of the amended Regulations. Based on the significant feedback received from stakeholders, a focus group was established. The primary purpose of the aerodrome focus group was to discuss the regulatory proposal that would require an aerodrome proponent or operator to notify affected stakeholders prior to undertaking prescribed aerodrome work. Transport Canada held its first focus group meeting in June 2014 to have a policy level discussion on the regulatory proposal. The focus group made a number of recommendations, including the following: Consultation requirements should be limited only to new aerodromes; Proponents should respond to the concerns of affected stakeholders and the public using available information during the identified consultation period; Transport Canada should improve information sharing to avoid duplication of effort by proponents; Transport Canada should establish clear and well defined criteria for the review and assessment of unresolved objections in a timely manner; Transport Canada should research and review consultation processes to determine whether they could be applied in the context of aerodrome development; and Transport Canada should consider the development of Regulations for obstacle development in proximity to aerodromes. Following this meeting, Transport Canada prepared a Notice of Proposed Amendment (NPA) in February 2015 that was based on the outcome of the focus group meeting, the analysis by Transport Canada of other consultation processes, and the premise that material impact — whether from a new aerodrome or changes at an existing one — is the same for those affected by the development. Transport Canada received feedback on the NPA via the CARAC Web site from a broad range of stakeholders. Although the various consulted parties highlighted their individual concerns, there were some concerns that were raised by multiple parties, such as the following: Association groups, provincial and municipal governments, the public (general aviation) and proponents of aerodrome work highlighted the need for a clear definition of what is “aerodrome work” and under which circumstances consultation would be required; and questioned what criteria would be used in determining public interest in regards to aerodrome development. Association groups, provincial and municipal governments and the public (general aviation) raised concerns that the impact of the proposed Regulations on smaller aerodromes, whether certified or not, would cause them undue financial hardship, the reason being that the notification process proposed in the NPA was perceived as comprehensive and expensive and would not be applied proportionally to small businesses; and raised concerns about the subjective nature of the NPA wording including the lack of definition of certain terms such as “reasonable” and “acceptable.” Both association groups and the municipal governments highlighted an issue about the definition of an “ad hoc aerodrome,” stating that there is no outlined responsibility for tracking the 30-day period, which would cause issues with enforcement. Individual organizational comments are highlighted below. Associations: Stakeholders with no employees (those that function with volunteers) or private air strips felt that they were not included in the triage impact analysis as it was defined in the NPA. Municipalities: Municipalities want to be captured in the consultation process even if the aerodrome is proposed in a neighbouring non-built-up area, i.e. they want the radius to be increased; The duration of consultation process is too short; and The protected area criterion in the NPA would not allow new hang-gliding or paragliding launch or landing zones to be built in many municipal, provincial or national parks. A multi-year effort has resulted in recent changes to the National Parks Act and Parks Canada regulations expressly to permit hang-gliding or paragliding operations in those areas. The proposed NPA undermines those efforts. Provincial governments: Transport Canada should require land owners adjacent to aerodromes to consult with operators before any new land use activity commences to assess the impact on aviation safety and aerodrome operations. On the adherence to local building and fire codes, the provinces oppose any attempt to off-load current federal oversight of airport and aerodrome issues to other jurisdictions leaving the aviation community to battle over parties with self-prescribed interests and agendas. There are concerns about the compatibility of timelines and parameters of the duty to consult process with First Nations. Large aerodromes already have consultation processes in place and this proposed amendment would be a duplication of work. Public (non-aviation): Submissions were received from private citizens who were concerned that airports could be built in their backyards and were supportive of the requirement to consult. They had hopes the Regulations could be retroactively applied and would lead to the shutdown of recent unpopular aerodrome developments. Proponents of aerodrome work (including national and provincial airports): Proponents expressed concern that added costs of consultation could prove prohibitive to initiating any improvement to an airport. They requested clarification on the consultation requirements. They wanted to modify the definition of ad hoc from 30 days per calendar year to 180 days and sought more time to consult on the proposed Regulations. In addition, there was concern that the estimated cost could only be validated once the nature of development and changes are defined, which added ambiguity to the cost for proponents. Some referenced obstacles surrounding airports (e.g. cell towers) being built and the absence of their requirement to consult. A second focus group meeting was held at the end of March 2015 to modify the proposed Regulations in response to industry concerns regarding the scope, applicability and the prescriptive nature of the requirements. Transport Canada addressed these concerns by clarifying the intention of the amendment and working with focus group participants to make changes to the scope and applicability and the level of prescriptive nature found in the NPA. For example, the kinds of developments or changes at existing aerodromes that would trigger the notification process were defined and the requirement to have a community meeting as part of the process were dropped, since it was felt that the result of sharing information and soliciting feedback could be achieved without it. To address the concerns raised by provincial officials and Canadians relating to aerodrome work in or near protected areas, notification to nearby federally protected area authorities was added. The amendments built on the progress of the working group. With post-meeting comments received from focus group members on the revised proposal, and upon further analysis by Transport Canada officials and subject matter experts, additional modifications were made. The description of works that would trigger notification was further simplified. Added was the requirement to notify landowners bordering the property of a proposed aerodrome work located outside of 4 000 m of a built-up area of a city or town, ensuring that the most affected stakeholders are given information and the opportunity to engage proponents in advance of construction. Determination of what constitutes a public interest matter will rest with the Minister and will be made in accordance with the circumstances of each case and within the jurisdictional limits of the Aeronautics Act. The matter of obstacle development on land adjacent to aerodromes will be addressed in the next phase of the multi-year review of responsible aerodrome development, which commenced in late 2015. Focus group membership consisted of representatives from the following organizations: Air Transport Association of Canada; Regional Community Airports of Canada; (see note 1*) Canadian Airports Council; Helicopter Association of Canada; Northern Air Transport Association; Canadian Owners and Pilots Association; The Ultralight Pilots Association of Canada; Ontario Seaplane Association; (see note 2*) Airport Management Council of Ontario; Aviateurs et pilotes de brousse du Québec; NAV CANADA; Canadian Business Aviation Association; Canada Wind Energy Association; (see note 3*) and Experimental Aircraft Association — Canadian Council. (see note 4*) Note 1* Not in attendance at both meetings. Note 2* Not in attendance at both meetings. Note 3* Not in attendance at both meetings. Note 4* Not in attendance at both meetings. The proposed amendments were published in the Canada Gazette, Part I, on July 11, 2015, followed by a 60-day comment period. Thirty-one comments were submitted from across Canada representing a cross section of stakeholders including general aviation enthusiasts, pilots, aerodrome operators, provincial and municipal governments, and citizens affected by or having an interest in aerodrome developments and operations. Transport Canada (TC) reviewed all of the comments and proposes a combination of minor amendments to the regulatory text as presented, the generation of guidance material on what constitutes “public interest” and the preparation of standards and processes within the Department to ensure successful implementation of the amendments. The disposition of comments and the resultant amendments are not considered to have changed the intent of the Regulations as published in the Canada Gazette, Part I, or increased the impact to stakeholders. Minor changes to the Regulations Mandate that the local land use authority (municipality) is notified regardless of the location of the aerodrome works (in, within or outside of 4 000 m of a built-up area) — Residents and municipalities, including the Federation of Canadian Municipalities (FCM), have expressed that the municipality, regardless of where an aerodrome is located, should be consulted in advance of aerodrome works. Municipalities have the responsibility for planning and development decisions for their entire municipality and not being notified of a major development such as an aerodrome work undermines their ability to effectively carry out that mandate. In addition, municipal planners will be in a better position to advise developers of obstacles around aerodromes if they know of (plan for) their existence. TC has determined that their inclusion is neither onerous nor a potential obstacle to development — consultation is conducted by way of notification and comments are received and addressed, as are any other comments. Except water aerodromes — TC is currently preparing proposed Regulations on water aerodromes that contain a requirement to consult if the aerodrome is to be certified. The challenge of applying the aerodrome work criteria to water aerodromes was raised by the Canadian Owners and Pilots Association and the Ontario Seaplane Association, since there are no runways to build or extend. Furthermore, landing on a body of water created a challenge with consultation and giving notice to property owners bordering on the site of the aerodrome, since technically all property owners on a lake could be deemed interested parties. The draft Regulations initially remained silent on the matter, but in light of the questions raised by industry and the pending certified water airports proposed amendments, these Regulations will not apply to water aerodromes. Remove the exception of “low volume aerodromes” (where take-offs and landings occur no more than 90 days per year) — A number of private citizen respondents requested the 90-day use limit be raised to 120 or 180 days to better accommodate private aerodromes. The low volume aerodrome exception was intended to exclude aerodromes related to seasonal operations that often engage float planes and helicopters and was not intended to accommodate permanent aerodromes, regardless of their size or use. However, following the publication in the Canada Gazette, Part I, the recommendation to except water aerodromes due to separate proposed Regulations makes the “low volume aerodromes” exception redundant. Furthermore, in reviewing this matter, a potential loophole for new aerodrome development without consultation was discovered: an operator could develop a permanent low volume aerodrome and then expand operations beyond 90 days per year with impunity because there is no requirement to consult in the event of operational changes. The requirement to provide the summary report within 30 days following the end of the notification period is replaced with as “soon as practicable” to allow for a range of complexity of aerodrome works. Preparation of guidance material Determining public interest relating to aerodrome works — Stakeholders repeated the comment made at the focus group regarding the criteria that they would like to know what is considered in determining public interest in regards to aerodrome development. TC is developing guidance material that will pertain specifically to the concept of public interest with respect to section 4.31 of the Aeronautics Act. In addition, guidance material will be prepared on noise management at aerodromes and what is meant by “built-up area.” These materials will be made available to the public. Notice from the Minister The requirement for the proponent to receive a notice from the Minister within 30 days of submission of the summary report was removed. This was changed so that the Regulations are in line with other regulations where compliance is expected and subject to penalty if it is found the proponent is not in compliance. Proponents are still required to wait 30 days after submitting the summary report before commencing an aerodrome work. Existing noise complaints — Many of the comments received during the NPA and Canada Gazette, Part I, periods included complaints about the increase in noise that often accompanies a change in operations. Although noise is outside the scope of this amendment, TC is reviewing how noise concerns may be better managed, particularly at smaller aerodromes. Rationale Benefits The amendment would address the current identified gap in regulatory requirements by ensuring that there is a consistently applied notification process in advance of aerodrome work. It introduces clarity, predictability and increased communication for all stakeholders. The amendment is expected to provide an overall benefit to Canadians directly impacted by aerodrome work, as it would compel proponents to engage stakeholders and solicit and address their concerns in advance of construction. Industry will experience greater planning and cost certainty. A consequential benefit is an increase in coordinated land use between proponents and land use authorities. Costs Proponents who choose to undertake a new aerodrome work at an aerodrome in or within 4 000 m of a built-up area of a city or town and who have already undergone a certification process and have achieved certification for that aerodrome may incur a cost related to the notification process. These proponents already have statutory consultation processes in place as part of industry best practice. If their existing process does not already include all elements of the notification process as part of their normal practices, it is assumed that there will be a cost. The range of the cost for these aerodrome work proponents to undertake the public notification as part of the larger development process is estimated as a one-time cost per project of between $10,000 and $25,000. The assumption is that these costs are related to notification to all affected public stakeholders within the 4 000 m radius. It is assumed that any steps that are not already part of their current consultation plan will be conducted in parallel to other preliminary planning work and will not cause delay. The majority of the annual aerodrome work will be undertaken at smaller aerodromes, not at the major international airports. Of the 13 major international airports in Canada, only 3 have planned future development expected to take place over the next 15 years. For proponents of aerodrome work at smaller certified airports or registered aerodromes outside of 4 000 m of a built-up area of a city or town, the costs are estimated at a one-time cost per project of approximately $2,000, attributed to printing and delivering the public notification package, posting of signage, and for management to respond in writing to comments and prepare a summary report. Some of these proponents may already undertake some consultation as part of their own business practices. It is assumed that there will be no costs for proponents of very small aerodromes either unregistered or registered because it is assumed unlikely these very small aerodromes would undertake a prescribed aerodrome work as described in this proposed amendment. Implementation, enforcement and service standards These amendments will be enforced through the assessment of monetary penalties imposed under sections 7.6 to 8.2 of the Aeronautics Act, which carry a maximum fine of $5,000 for individuals and $25,000 for corporations, through suspension or cancellation of a Canadian aviation document, or through judicial action introduced by way of summary conviction, as per section 7.3 of the Aeronautics Act. Contact Chief Regulatory Affairs (AARBH) Civil Aviation Safety and Security Group Transport Canada Place de Ville, Tower C Ottawa, Ontario K1A 0N5 Telephone: 613-993-7284 or 1-800-305-2059 Fax: 613-990-1198 Web site: www.tc.gc.ca Footnote a S.C. 2014, c. 39, s. 144 Footnote b S.C. 2004, c. 15, s. 18 Footnote c R.S., c. A-2 Footnote 1 SOR/96-433
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