TSB Recommendation A94-04

Legislation (Recommendation A94-04)

The Regulatory Renewal Project is incorporating existing regulations in a new regulatory structure consisting of regulations with standards incorporated by reference. The intent is that the standards will be contained in an incorporated document that is much more easily amended than the regulation.

Concerning the revised recorder regulations, we have a consensus with industry that agrees to full harmonization with the Federal Aviation Regulations (FAR) of the U.S.A. Hence, the draft regulations have been finalized. The regulation section will stipulate briefly which aircraft require FDRs and CVRs. The standards section will list parameters, operational requirements and other technical specifications.

In response to these recommendations, Transport Canada (TC) has undertaken a program to review operator compliance with existing recorder requirements in order to identify areas of the monitoring and approval processes that need revision. In addition, TC stated its intention in April 1994 to issue two interim circulars to facilitate industry adjustment to the new recorder regulation expected to come into law in early 1995. With respect to streamlining the recorder legislation process, TC stated that a new regulatory structure will have regulations which incorporate standards by reference in order to facilitate amendment in a timely way. TC’s new approach to use standards to keep pace with changing requirements in aviation, and in particular flight recorder technology, is an important improvement in the regulatory process. Also, TC has reached consensus with industry to harmonize with the U.S. Federal Aviation Regulations (FAR) in finalizing the draft Canadian regulations.

The new regulation will state which aircraft will require FDRs and CVRs; the standards section will list parameters, operational requirements, and other technical specifications. The Department of Justice has advised that it is prepared to carry out its regulatory functions as quickly as possible to ensure the regulations proposed by TC can be promulgated with the least possible delay.

TC indicates that the new regulatory structure will have regulations which will incorporate standards by reference, thus facilitating amendments in a timely way. Also, TC has reached consensus with industry to harmonize with the U.S. Federal Aviation Regulations (FAR).

The approach by TC to use standards to keep pace with changing requirements in aviation, and in particular flight recorder technology, is an important improvement in the regulatory process.

Therefore this response is considered as having Satisfactory Intent.

Current CVR/FDR standards (CARs 625.33 refers) were adopted despite observations by TSB (DGIO letter dated 27 September 95) that warned they were outdated. TSB continues to participate within CARAC to develop more relevant Canadian Aviation Regulations (CARs). Recommendation A90-55 raises similar issues.

Therefore, the response is assessed as Satisfactory Intent.

Amending those recorder requirements by “Standards” seems more efficient; however, those aspects which require regulatory change may still involve a lengthy process. The Board suggests “Further Action Unwarranted” at this time (however, this recommendation should be tracked in conjunction with Swissair recommendations A99-01 and A99-02).

Therefore, the response is reassessed as Satisfactory in Part.

As such, Further Action is Unwarranted on this recommendation, the safety issue is addressed by Recommendation A99-02 and the status is now Inactive.

The Board requested that Recommendation A94-04 be reviewed to determine if the deficiency file status was appropriate. After an initial evaluation, it was determined that the safety deficiency addressed by Recommendation A94-04 is addressed by the more recent Recommendation A99-02.

It is therefore appropriate to follow the progress on flight recorder safety issues through Recommendation A99-02.

Therefore, the assessment remains Satisfactory in Part.

Transport Canada agrees with the intent of the recommendation. It is anticipated that proposed regulations that address this recommendation will be pre-published in the Canada Gazette Part I in spring 2016.

TC indicated that delays are sometimes inevitable when higher priority tasks take up resources in the regulatory program. The defined criteria for assigning priority to regulatory initiatives are presented in the following table.

Note that the TSB Watchlist initiatives and other TSB initiatives are assigned Priority 2 and 3 respectively. These high ratings were assigned because the department takes TSB safety action very seriously. Occasionally, however, even important regulatory initiatives are shifted due to higher priority issues. The Board should be aware, however, that once Civil Aviation commits to regulatory action, timing may change, but the department will proceed with the initiative until is completed.

In the Board’s last re-assessment, the response to this recommendation was linked to Transport Canada’s response to Recommendation A99-02. Transport Canada’s response restates its support for the intent of Recommendation A99-02. Additionally, it advises that the proposed regulations contained in NPA 2011-010 are further delayed and will not be pre-published in the Canada Gazette, Part I until the first quarter of 2016. This further delay will undoubtedly push the implementation date of the proposed regulatory change well beyond the current target of 1 January 2016. In the meantime, the CARs will continue to lack harmonization with both the FAR requirement and the ICAO standard for 2-hour CVR.

Despite implementation delays, Transport Canada is proposing regulatory changes that, when fully implemented, will substantially reduce or eliminate the safety deficiency identified in Recommendation A99-02 which in turn will do the same for Recommendation A94-04. While Transport Canada’s proposed measures are reasonable, the protracted delays are not.

Therefore, the assessment rating for this recommendation is changed to Unsatisfactory.

(Includes recommendations A91-13, A99-02, and A99-03.)

Transport Canada agrees with the intent of the recommendation.

It is anticipated that the proposed regulations that address this recommendation will be pre‑published in the Canada Gazette, Part I in 2016.

The Board has linked the mitigation of the risks associated with Recommendation A94-04 to its assessment of Recommendation A99-02. Transport Canada’s latest update repeats the statement that its proposed regulations to address the risks identified in Recommendation A99-02 are to be pre‑published in the Canada Gazette, Part I in 2016.

While Transport Canada’s proposed regulatory changes are reasonable, the protracted delays are not.

Therefore, the assessment rating for this recommendation remains Unsatisfactory.

It is anticipated that the proposed regulations that address the CVR (2-hr recording capacity) component of this recommendation will be pre-published in the Canada Gazette, Part I, in summer 2017.

TC’s latest update indicates that its proposed regulatory amendments, designed to mitigate the risks associated with the CVR component of Recommendation A94-04, is anticipated to be pre-published in the Canada Gazette, Part I, in summer 2017. Since 2011, this milestone has been revised three times, extending the anticipated pre-publishing in the Canada Gazette, Part I, from 2012 to 2017.

Progress toward mitigation of the risks associated with this recommendation has been slow. Such extended delays have prompted the TSB to add an item to its key safety issues Watchlist that calls for both TC and the Government of Canada to move towards an improved and accelerated process for taking action on TSB recommendations.

While TC’s proposed regulatory changes are reasonable, the protracted delays are not.

Therefore, the response to Recommendation A94-04 is assessed as Unsatisfactory.

TC agrees in principle with the recommendation.

It is anticipated that the proposed regulations that address updated flight recorder requirements will be pre-published in the Canada Gazette, Part I, in the fall of 2017.

During previous reassessments, Recommendation A94-04 was linked to the implementation of Recommendation A99-02. However, Recommendation A99-02 addresses the requirement for

2-hour cockpit voice recorders (CVRs), while this recommendation is broader and directed at the timely implementation of updated flight recorder (flight data recorder [FDR] and CVR) requirements.

TC’s proposed amendments to the Canadian Aviation Regulations (CARs), which were pre-published in the Canada Gazette, Part I, in December 2017, only partially address the flight recorder requirements introduced by the International Civil Aviation Organization (ICAO) in 2010. If these amendments are implemented by 2019, the regulations will not come into effect until 2023, which is 7 years after the ICAO effective date of 1 January 2016, and 13 years since the introduction of the ICAO requirements.

The following is a list of ICAO Annex 6 FDR/CVR requirements, which have been introduced since November 2010 and have not been addressed by TC:

The current flight recorder requirements in the CARs are out of date and non-compliant with ICAO requirements. The Notice of Proposed Amendment (NPA) for the CVR amendments published in the Canada Gazette, Part I, was initiated in 2011 and will take effect in 2023, at the earliest, if implemented by 2019. TC lacks a process to implement the updating of flight recorder requirements in a timely manner.

TC’s response does not contain details of any actions, which have been taken or proposed, to change the processes to facilitate the timely Canadian implementation of updated flight recorder requirements.

Therefore, the Board considers the response to Recommendation A94-04 to be Unsatisfactory.

TC agrees in principle with the recommendation. 

TC is exploring options for developing and improving the use and implementation of flight data recording devices.

In February 2018, TC led a focus group of representatives from the aviation industry to address TSB Recommendation A13-01 related to Flight Data Recorders (FDRs) and Lightweight Data Recorders (LDRs). This work included extensive consultations with industry stakeholders and thorough policy analysis of the possible approaches to expanding safety data collection in Canadian aviation.

TC is holding another focus group on November 6-7 th , 2018, to continue discussions. As part of this work, two approaches are being considered: 

1. Voluntary installation of FDRs and LDRs: TC and industry will further explore the voluntary installation of FDRs and LDRs, in particular, examining how the voluntary approach would be successfully implemented. This could include a TC-led Advisory Circular (AC) and ongoing guidance to operators looking to improve their data collection; and
• Incorporation of FDRs or LDRs into newly-manufactured aircraft: The incorporation of FDRs and LDRs would regulate manufacturers to incorporate these devices into all new generation aircraft.

TC considers that these initiatives will help to address the recommendation and we will update the TSB as our work continues.

In its response, Transport Canada (TC) provides information on the work that has been done to date through the Focus Group responsible to address TSB Recommendation A13-01, a recommendation since closed and superceded by Recommendation A18-01.

The objective of the TC Focus Group is to address the possibility of expanding the use of flight recorders to smaller Canadian commercial aircraft. TC’s response does not contain details of any actions, which have been taken or proposed, to address Recommendation A94-04, which calls for streamlining of the processes to facilitate the timely Canadian implementation of updated flight recorder requirements.

This recommendation was issued over 24 years ago. The Board is concerned with the protracted delays in addressing the safety deficiency identified in Recommendation A94-04.

Of note, in addition to the list of International Civil Aviation Organization (ICAO) Annex 6 requirements not yet addressed by TC (see TSB reassessment June 2018), new ICAO Annex 6 requirements became effective on 8 November 2018. The current flight recorder requirements in the Canadian Aviation Regulations continue to be out of date and non-compliant with international requirements.

Therefore, the response to Recommendation A94-04 remains Unsatisfactory.