Vol. 145, No. 26 — December 21, 2011

Registration

SOR/2011-285 December 2, 2011

AERONAUTICS ACT

Regulations Amending the Canadian Aviation Regulations (Parts Ⅰ, Ⅲ and Ⅵ — Marking and Lighting)

P.C. 2011-1393 December 1, 2011

His Excellency the Governor General in Council, on the recommendation of the Minister of Transport, pursuant to section 4.9 (see footnote a) and subsection 7.6(1) (see footnote b) of the Aeronautics Act (see footnote c), hereby makes the annexed Regulations Amending the Canadian Aviation Regulations (Parts Ⅰ, Ⅲ and Ⅵ — Marking and Lighting).

REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS
(PARTS Ⅰ, Ⅲ AND Ⅵ — MARKING AND LIGHTING)

AMENDMENTS

1. Subsection 101.01(1) of the Canadian Aviation Regulations (see footnote 1) is amended by adding the following in alphabetical order:

“obstacle limitation surface” means a surface that establishes the limit to which objects may project into an aerodrome’s airspace, so that aircraft operations for which the aerodrome is intended may be conducted safely, and consists of a transitional surface, a take-off surface, an approach surface and an outer surface; (surface de limitation d’obstacles)

“Standard 621” means the Obstruction Marking and Lighting Standard of the General Operating and Flight Rules Standards, published by the Department of Transport; (norme 621)

2. Part Ⅵ of Schedule Ⅱ to Subpart 3 of Part I of the Regulations is amended by adding the following after the reference “Subsection 601.22(1)”:

Column I

Column II

Designated Provision

Maximum Amount of Penalty ($)

Individual

Corporation

Subsection 601.24(1)

1,000

5,000

Paragraph 601.24(2)(a)

5,000

25,000

Paragraph 601.24(2)(b)

5,000

25,000

Paragraph 601.25(2)(a)

3,000

15,000

Paragraph 601.25(2)(b)

1,000

5,000

Section 601.26

5,000

25,000

Section 601.28

3,000

15,000

Section 601.29

3,000

15,000

3. The definition “obstacle limitation surface” in section 300.01 of the Regulations is repealed.

4. The definition “standard 621.19” in section 305.01 of the Regulations is repealed.

5. Section 601.19 of the Regulations and the heading before it are replaced by the following:

[601.19 reserved]

6. The reference “[601.23 to 601.25 reserved]” after subsection 601.22(2) of the Regulations is replaced by the following:

Division III — Marking and Lighting of Obstacles to Air Navigation

Obstacles to Air Navigation

601.23 (1) For the purposes of this Division, any building, structure or object, including any addition to it, constitutes an obstacle to air navigation if

  • (a) it penetrates an airport obstacle limitation surface as calculated in Chapter 4 of the Standard entitled Aerodrome Standards and Recommended Practices, TP 312E, published by the Department of Transport;

  • (b) it is higher than 90 m AGL and is located within 6 km of the geographical centre of an aerodrome;

  • (c) it is higher than 90 m AGL and is located within 3.7 km of the centreline of a recognized VFR route, including, but not limited to, a valley, a railway track, a transmission line, a pipeline, a river and a highway;

  • (d) it is higher than 150 m AGL; or

  • (e) in the case of any catenary wires crossing over a river, any portion of the wires or supporting structures is higher than 90 m AGL.

(2) For the purposes of subsection (1), an addition to a building, structure or object includes any vertical mast, pole, tower or other object erected on top of the building, structure or object and adding to its height.

Marking and Lighting of Obstacles to Air Navigation

601.24 (1) Any person who plans to construct or modify a building, structure or object, or launch a tethered object shall notify the Minister of the proposed construction, modification or launch in accordance with the requirements of Standard 621 if the building, structure or object, or tethered object, will constitute an obstacle to air navigation.

(2) A person who has responsibility for or control over a building, structure or object that constitutes an obstacle to air navigation shall

  • (a) mark and light the building, structure or object in accordance with the requirements of Standard 621; or

  • (b) use the equivalent marking and lighting approved by the Minister under subsection 601.27(2).

Other Obstacles to Air Navigation

601.25 (1) If the Minister determines that a building, structure or object, other than a building, structure or object described in section 601.23, is hazardous to air navigation because of its height or location, the Minister shall require the person who has responsibility for or control over the building, structure or object to mark and light it in accordance with the requirements of Standard 621.

(2) A person who is required by the Minister to mark and light a building, structure or object under subsection (1) shall

  • (a) do so within six months; and

  • (b) cause to be received at the appropriate air traffic control unit or flight service station a notice identifying the nature, location and height of the building, structure or object.

Upgrading of Marking and Lighting

601.26 A person who has responsibility for or control over an obstacle to air navigation shall upgrade the markings and lights of the whole obstacle to the most recent requirements set out in Standard 621 if any change occurs in

  • (a) the location of the obstacle with respect to any other marked or lighted obstacle; or

  • (b) the surrounding conditions of the obstacle that can affect aviation safety.

Equivalent Marking and Lighting

601.27 (1) A person who proposes to use equivalent marking and lighting on an obstacle to air navigation for which the person has responsibility or over which the person has control shall apply to the Minister for approval.

(2) The Minister shall approve the equivalent marking and lighting if the applicant

  • (a) submits a risk assessment that identifies the risks to air navigation associated with the obstacle and the methods for eliminating or reducing those risks; and

  • (b) demonstrates that the equivalent marking and lighting provides a level of safety at least equivalent to the level provided by the requirements of Standard 621.

(3) In determining whether the equivalent marking and lighting provides the level of safety required by paragraph (2)(b), the Minister shall consider the following factors:

  • (a) the location of the obstacle;

  • (b) the surrounding terrain, buildings, structures and objects;

  • (c) the VFR air traffic volume; and

  • (d) the proximity of the obstacle to an aerodrome.

Notification of Deterioration, Failure or Malfunction

601.28 A person who has responsibility for or control over an obstacle to air navigation shall report immediately any deterioration of a marking or any failure or malfunction of a light required under this Division to the nearest flight service station.

Prohibition

601.29 No person shall deface, alter or otherwise damage a marking or a light required, under this Division, to be displayed on an obstacle to air navigation.

7. The Regulations are amended by replacing “standard 621.19” with “Standard 621” in the following provisions:

  • (a) paragraphs 305.37(2)(a) and (d) and (3)(a);

  • (b) subsection 305.38(2); and

  • (c) subsection 305.39(1).

COMING INTO FORCE

8. These Regulations come into force on December 31, 2011.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issue and objectives

Marking and lighting of obstacles to air navigation provides day and night conspicuity, assisting pilots in identifying and avoiding these obstacles. Before the coming into force of these amendments, section 601.19 of the Canadian Aviation Regulations (CARs) — Orders Regarding the Marking and Lighting of Hazards to Aviation Safety — stated that the Minister may direct by order the marking or lighting of hazardous obstacles in accordance with the Standards Obstruction Markings Manual. These standards stated that compliance is voluntary and used the conditional “should” when referring to specific requirements.

The wording of section 601.19 of the CARs created confusion as to what the Regulations really required as it may have been interpreted to mean that the requirement to mark and light only applied to obstacles that were subject to a ministerial order. Furthermore, the wording of the standards themselves made it difficult for stakeholders to determine whether obstacles met minimum marking and lighting prerequisites.

The vast majority of persons who have responsibility for or control over an obstacle to air navigation already met or strove to meet marking and lighting standards in order to protect their structures from collision and avoid the potential litigation that might result. These persons as well as manufacturers of lighting equipment have expressed desire for mandatory standards that would confirm minimum marking and lighting requirements. Further, third party testing laboratories who certify marking and lighting products have also asked for clarification, as they cannot certify product compliance to voluntary standards.

These amendments clarify the intent of section 601.19 of the CARs, defining which objects are obstacles to air navigation and thus subject to the requirements. The amendments also confirm the responsibility of those having control over these obstacles. The standards have been revised to reflect current technical advances.

Description and rationale

These amendments include

  • — the definition of obstacle to air navigation;
  • — the obligation to mark and light the obstacles to air navigation designated by these amendments;
  • — the obligation to notify the Minister of any new structure or addition to an existing structure and the requirement to mark and light this new structure or addition;
  • — the marking and lighting prerequisites for continued compliance;
  • — the introduction of administrative monetary penalties;
  • — the prohibition against altering or damaging marking and lighting display.

These amendments anchor the requirement to mark and light obstacles to air navigation in the regulation, removing the necessity to use ministerial orders, a slower process that results in lengthy exposure to unsafe situations. They clarify the applicable scheme and provide stakeholders with consistent criteria. The existing costs of marking and lighting obstacles will not increase as nearly all persons who have responsibility for or control over an obstacle to air navigation are already complying. In many instances, costs will be lessened due to amendment which allows the use of new technologies such as light-emitting diode (LED) lighting which decrease electrical consumption as well as lowering maintenance cost because of a much longer lamp life in comparison to conventional filament-type light sources.

The standards to which these amendments refer to are technical in nature. They are consulted in accordance with section 103.01 of the CARs — Requirements for Standards Incorporated by Reference.

Consultation

A working group composed of government, aviation stakeholders (e.g. Air Line Pilots Association [ALPA], Air Canada Pilots Association [ACPA], Canadian Owners and Pilots Association [COPA]) and non-aviation stakeholders (e.g. Manitoba Hydro, Intersignal Aviation Obstruction Inc., Crouse-Hinds Airport Lighting Products, CBC Southern Ontario, Siemens Electric Ltd, Honeywell) was convened in September 2001 to revise section 601.19 of the CARs and the associated standards. Their conclusions were presented to the Canadian Aviation Regulation Advisory Council (CARAC) Technical Committee General Operating and Flight Rules (GOFR) meeting held on December 9, 2003.

The members of this technical committee, which includes representatives of government, aeronautical associations (the Ultralight Pilots Association of Canada [UPAC], the Canadian Owners and Pilots Association [COPA], Air Transport Association of Canada [ATAC], Air Line Pilots Association [ALPA], Air Canada Pilot Association [ACPA]), and unions (e.g. the Canadian Union of Public Employees [CUPE]), recommended these amendments.

Civil Aviation Regulatory Affairs sent a letter to the affected aviation and non-aviation stakeholders in August 2009 informing them of the Minister’s intention to move forward with this regulatory proposal. Stakeholders did not forward comments.

The proposed Regulations were pre-published in Part Ⅰ of the Canada Gazette on June 5, 2010, followed by a 30-day public comment period. Five comments were received, raising issues that pertained mainly to the proposed standards. These comments have been assessed by Transport Canada and the standards have been changed to address these issues where appropriate. Two comments were raised pertaining to the amendments:

  • — One comment pertained to the regulatory process where stakeholders are asked to accept a proposed regulation published in the Canada Gazette, Part Ⅰ, without having the opportunity to review the finalized incorporated standards prior to publication in the Canada Gazette, Part Ⅱ.
  • The consultation process for standards is not tied to the consultation process for proposed regulations. Transport Canada could not change a standard without consulting first with stakeholders.
  • — One comment pertained to the hazards created by unmarked towers used to analyse the wind resource (meteorological towers) in advance of development of wind farms. They may pose a hazard to crop-spraying aircraft which are flying close to the ground.
  • Meteorological towers will not be considered as obstacles if, for example, their height is below 150 meters or, in the case of a tower situated near an aerodrome or a recognized air route, if this height is below 90 meters. Transport Canada acknowledges the potential danger presented by these towers to the specialized activity of crop spraying and issued an Advisory Circular, on March 8, 2011, informing owners that it was both reasonable and prudent to mark the towers so that they would be made more conspicuous to pilots.

Implementation, enforcement and service standards

These requirements will be enforced through the assessment of monetary penalties imposed under subsection 7.6(1) of the Aeronautics Act.

Contact

Chief
Regulatory Affairs AARBH
Transport Canada
Safety and Security
Place de Ville, Tower C
Ottawa, Ontario
K1A 0N5
Telephone: 613-993-7284 or 1-800-305-2059 (general inquiries)
Fax: 613-990-1198
Web site: www.tc.gc.ca

Footnote a
S.C. 1992, c. 4, s. 7

Footnote b
S.C. 2004, c. 15, s. 18

Footnote c
R.S., c. A-2

Footnote 1
SOR/96-433