Oversight of Civil Aircraft Operators Contracted to Provide Air Services to the DND/CAF

Effective Date: 1 March 2023

Reference: TAM Part 5, Chapter 7

OPI / Telephone: DTAES 3-2 / 819-939-4813

1. Purpose

1.1 This joint Technical Airworthiness Authority (TAA)-Operational Airworthiness Authority (OAA)-Airworthiness Investigative Authority (AIA) Advisory defines the level of oversight exercised by the Department of National Defence and the Canadian Armed Forces (DND/CAF) over civil aircraft operators providing services to the DND/CAF using civil‑registered aircraft.

2. Applicability

2.1 This TAA-OAA-AIA Advisory applies to the Technical Authority, Procurement Authority (PA) and Contracting Authority (CA) who wish to contract civil aircraft operators, and to the TAA, OAA and AIA staff who have to exercise airworthiness oversight of those activities.

3. Related Material

3.1 Definitions

1. Activity Relating to Defence: In accordance with reference 3.2.a, an activity, service or situation that has a connection to the National Defence of Canada and consequently a connection to the DND/CAF.
2. Civil Aviation Authority (CAA): A country’s civil authority that oversees the approval and regulation of civil aviation. Depending on how it is structured within every state, the Airworthiness Authority function may be established as a sub-component of the larger Civil Aviation Authority. The CAA may also be referred to as the National Aviation (or Airworthiness) Authority (NAA).

3. Duty of Care: In the context of this TAA-OAA-AIA Advisory, the obligation borne by the DND/CAF, in absence of direct airworthiness oversight, for ensuring that a civil aircraft operator providing services to the DND/CAF will do so in a reasonably safe manner.
4. Military Airworthiness Authority (MAA): The military authority of a state normally responsible for the airworthiness of the military aircraft of that State. The Canadian MAA is headed by an AA supported by an Operational Airworthiness Authority (OAA), an Airworthiness Investigative Authority (AIA) and a Technical Airworthiness Authority (TAA). Other military regulators may use different terminology and have other organizational structures, for example: the UK Ministry of Defence (MoD) MAA is referred to as the Military Aviation Authority.
5. Air Operator: In the context of this Advisory, means a civil aircraft operator that holds an Air Operator Certificate (AOC) or equivalent issued by the aircraft’s national CAA for the conduct of specific commercial operations.
6. State Aircraft: In accordance with ICAO general guidance, a State Aircraft is a government owned aircraft used in military, customs and/or police service and which is at the exclusive service of a government. In Canada, State Aircraft other than military aircraft are under the regulatory responsibility of TCCA.
7. Tasking Authorization/Task Order (TA/TO): A formal document, signed by the Department of National Defence and the CAF, authorizing the Activity Relating to Defence. The TA/TO will contain the aircraft type being tasked, the nature of the activity and the exact timeframe the authorization will be valid for. The approved TA/TO format will be specified in the TAO.
8. Temporary Authority to Operate (TAO): A special type of flight authority, issued jointly by the TAA and OAA, on behalf of the Minister of National Defence (MND), that authorizes an aircraft operator to perform activities relating to defence for or on behalf of the DND/CAF with an aircraft on the civil register.

3.2 Regulatory References

1. Memorandum of Understanding between the Department of National Defence and the Canadian Armed Forces and Transport Canada (as represented by Transport Canada Civil Aviation) Concerning the Responsibilities for Canadian Civil Registered Aircraft Performing Activities Relating to Defence (available internally, with DND, at AEPM RDIMS #1938916 (English), and #1958421 (French))
2. The Aeronautics Act of Canada
3. Canadian Forces Technical Order (CFTO) A‑GA‑005‑000/AG‑001 – Department of National Defence/Canadian Armed Forces (DND/CAF) Airworthiness Program
4. TAA Advisory 2011-04 – Temporary Authority to Operate
5. CFTO C-05-005-001/AG-001 – Technical Airworthiness Manual
6. CFTO B-GA-104-000/FP-001 – Operational Airworthiness Manual
7. CFTO A-GA-135-003/AG-001 – Airworthiness Investigation Manual
8. CFTO A-GA-135-001/AA-001 – Flight Safety for the Canadian Armed Forces

4. Discussion

4.1 Overview

4.1.1 In recent years, CAF demands for air effects have outstripped the CAF capacity. As a result, it has become common for DND/CAF organizations to contract civil operators for air services. The level of airworthiness oversight by the DND/CAF of the contracted operator and aircraft depends on factors such as the nature of the services performed, whether the aircraft are Canadian- or foreign-registered, and whether those services are performed in Canadian or foreign airspace.

4.1.2 The Aeronautics Act of Canada (the Act) [reference 3.2.b] applies to both the Minister of National Defence and the Minister of Transport. The Act makes the Minister of National Defence responsible for any matter relating to defence (i.e., “activities relating to defence”) and the Minister of Transport responsible for all other aeronautics matters under the Act, including civil aviation.

4.1.3 To define the respective responsibilities as they apply to Canadian civil-registered aircraft, the Memorandum of Understanding (MOU) available at reference 3.2.a was put in place. The primary objective of the MOU is to establish a mechanism to facilitate the transfer of regulatory responsibilities between the DND/CAF and TCCA, to ensure an equivalent and continuous level of aviation safety when Canadian civil-registered aircraft are performing activities relating to defence. Regulatory responsibility is never shared between TCCA and DND/CAF. For a given flight or maintenance activity, the responsible authority will be either TCCA or DND/CAF.

4.1.4 For an activity to be considered an Activity Relating to Defence, it must have a connection to the national defence of Canada. This connection may be through personnel, an aeronautical product, aerodrome or equipment that belong to, or are to be used by, the CAF, or under the control of the CAF. Although not exhaustive, the following list provides examples of situations in which an activity would be considered an Activity Relating to Defence, if one or more apply:

1. The dominant purpose of the activity is military and for Canada (i.e., a state purpose versus a commercial purpose, state priorities versus individual or corporate priorities, etc.);
2. Canadian military crew (as defined by the DND and the CAF) will be conducting operations on-board the aircraft;
3. The aircraft will be under the direction of the Canadian military while performing the services;
4. The aircraft requires the installation of military equipment or aeronautical products;
5. The aircraft will be operating within military restricted airspace (i.e., Class F or international equivalent) or in an operational theatre while providing the service;
6. The aircraft will be operated from a Canadian military airfield or ship;
7. The activity being provided for the DND and the CAF is not regulated by the Canadian Aviation Regulations (CARs) or would not meet the regulatory requirements set out in the CARs, and, as a result, that aircraft and/or its operation would either not fall under the scope of the CARs, or would be in non-compliance with those requirements. Examples include: an aircraft required to transport dangerous goods beyond civil limits but within military limits; transporting military members on exercise who are carrying weapons and ammunition on board; operating at very low altitude and/or high speed flights;
8. The aircraft needs to be in a specific configuration and/or needs a design change that cannot be approved under civil standards, to attain the capability necessary for the conduct of the Activity Relating to Defence.

4.1.5 Airworthiness regulatory staff from both DND/CAF and TCCA may be asked, on a case-by-case basis, to jointly evaluate activities not specifically identified above to determine if these constitute activities relating to defence. When it is determined that an activity is an Activity Relating to Defence, the activity must then be carried out in accordance with a Temporary Authority to Operate (TAO) and Tasking Authorization/Task Order (TA/TO) that is issued by the DND/CAF. In defining the required level of airworthiness oversight, the DND/CAF airworthiness regulatory staffs act as advisors to the Technical Authority, the Procurement Authority (PA) and the Contracting Authority (CA) who seek to contract these civil operators.

4.2 Civil Operator Providing Air Services to the DND/CAF – Determination of the Oversight

4.2.1 The level of airworthiness oversight over civil aircraft operators depends on whether the type of activity and nature of the services constitute an Activity Relating to Defence as detailed in Section 4.1 and the following:

1. The presence and the role of any DND personnel on board;
2. The national registration of the aircraft used to provide the service;
3. Whether those services are performed in Canadian or foreign airspace;
4. The scope and complexity of the contracted services in support of DND/CAF.

4.2.2 The presence and role of DND/CAF personnel on board a civil aircraft could, in itself, determine whether or not a service being provided constitutes an Activity Relating to Defence as defined in section 4.1 above. Technical Authority and PA staffs are therefore encouraged to consult DTAES 3-2 staff before soliciting any services that might involve DND/CAF personnel flying on civil aircraft.

4.2.3 If a service is determined not to be an Activity Relating to Defence, as defined in section 4.1 above, it will be classed as routine Air Transport (AT) and the civil aircraft will remain under civil airworthiness oversight. Nevertheless, the DND/CAF still has a duty of care towards DND/CAF personnel, materiel and/or facilities that may be involved. As a result, DND/CAF airworthiness regulatory staffs still need to be consulted. Refer to Section 4.3 for details.

4.2.4 Conversely, if a service is determined to be an Activity Relating to Defence, then the DND/CAF have the following oversight responsibilities:

1. If the Activity Relating to Defence is conducted by a Canadian operator, inside or outside Canadian airspace, then the civil aircraft will be classed as a Canadian military aircraft, and the operator and aircraft will be subject to airworthiness oversight by the DND/CAF, in accordance with reference 3.2.a. As such, the operator will need to be assessed by the DND/CAF airworthiness staffs in order to determine whether or not the operator meets DND/CAF airworthiness requirements (in accordance with reference 3.2.c). Thus, the DND/CAF airworthiness regulatory staffs must be involved early in the contracting process, particularly when formulating solicitations/requests for proposals, etc. Refer to Paragraph 4.4.1 for details.
2. If the Activity Relating to Defence is conducted by a foreign operator inside Canadian airspace, then the foreign civil aircraft will be classed as a Canadian military aircraft and will be subject to airworthiness oversight by the DND/CAF, in accordance with reference 3.2.a. As such, the foreign operator will also need to be assessed by the DND/CAF airworthiness staffs, to determine whether or not the operator meets DND/CAF airworthiness requirements (in accordance with reference 3.2.c). Thus, the DND/CAF airworthiness regulatory staffs must be involved early in the contracting process. Refer to Paragraph 4.4.2 for details.
3. If the Activity Relating to Defence is conducted by a foreign operator outside Canadian airspace, then the DND/CAF have no legal airworthiness authority over that foreign operator. Nevertheless, the DND/CAF would still have a duty of care towards the DND/CAF personnel involved, and airworthiness staffs would still need to be engaged. Refer to Paragraph 4.4.3 for details.

4.3 Civil Air Operator Providing Routine AT Services to the DND/CAF – National Registration and Location of Services

4.3.1 If the Air Operator is Canadian, the routine AT will be conducted in accordance with the CARs, and the service will remain under the airworthiness oversight of TCCA. However, the DND/CAF will still need to exercise duty of care regarding this Canadian civil Air Operator, and the TAA, AIA and OAA will provide advice and recommendations to the Technical Authority, the PA and the CA who are seeking to contract this Canadian civil Air Operator. Refer to Section 4.5 and paragraph 4.6.1 for details.

4.3.2 If the Air Operator is not Canadian, routine AT will be conducted under the airworthiness oversight of the Air Operator’s National CAA and TCCA jointly for any flight in Canadian airspace. Nevertheless, the DND/CAF still need to exercise duty of care regarding DND/CAF personnel carried on-board the foreign operator’s aircraft. To this end, the TAA, OAA and AIA will provide advice and recommendations to the Technical Authority, the PA and the CA seeking to contract the foreign civil Air Operator. Refer to Section 4.5 and paragraph 4.6.1 for details.

4.4 Civil Operator Conducting Activity Relating to Defence for the DND/CAF

4.4.1 Canadian Civil Operator Operating in Canadian or Foreign Airspace. As outlined in Paragraph 4.2.4.a, a Canadian operator conducting an Activity Relating to Defence will be subject to airworthiness oversight by the DND/CAF. If it is determined that the operator meets DND/CAF airworthiness requirements, the DND/CAF airworthiness authorities will issue to the operator a military flight authority in the form of a Temporary Authority to Operate (TAO). Refer to Paragraph 4.6.2 for details.

4.4.2 Foreign Civil Operator Operating in Canadian Airspace. As outlined in Paragraph 4.2.4.b, a foreign operator conducting an Activity Relating to Defence in Canadian airspace will be subject to airworthiness oversight by the DND/CAF. If it is determined that the operator meets DND/CAF airworthiness requirements, the DND/CAF airworthiness authorities will issue to the operator a military flight authority in the form of a TAO. Refer to Paragraph 4.6.3 for details.

4.4.3 Foreign Civil Operator Operating in Foreign Airspace. As outlined in Paragraph 4.2.4.c, a foreign operator conducting an Activity Relating to Defence for the DND/CAF outside Canadian airspace cannot be subject to airworthiness oversight by the DND/CAF, since the DND/CAF have no authority under the Act (reference 3.2.b) over such aircraft. Thus, the foreign operator will remain under the airworthiness oversight of its national CAA. Nevertheless, the DND/CAF still need to exercise duty of care regarding DND/CAF personnel, especially if they are carried on-board the foreign operator’s aircraft (refer to Section 4.5). To this end, the TAA, OAA and AIA will provide advice and recommendations to the Technical Authority, the PA and the CA who are seeking to contract the foreign civil aircraft operator. Refer to Paragraph 4.6.4 for details of airworthiness requirements and clauses applicable to solicitations and contracts for services by foreign civil operators.

4.5 The Exercising of Duty of Care

4.5.1 Duty of care is the obligation that the DND/CAF have, in absence of direct airworthiness oversight, to ensure that a civil aircraft operator providing services to the DND/CAF will do so in a reasonably safe manner. The scope and depth of the execution of this duty of care will depend on the presence and the role of any DND/CAF personnel and/or materiel on-board. In order to determine whether or not the civil operator is acceptable to the TAA, AIA and OAA, the DND/CAF will consider various aspects of the operator and its aircraft, including: aircraft design, civil flight authority, Air Operator Certificate (AOC), Foreign Air Operator Certificate (FAOC) in the case of a foreign company operating into Canada, performance of maintenance, operational organization and flight safety background. The TAA staff, with AIA input, if required, will provide a recommendation to the OAA staff who will, in turn, document the findings as evidence that the DND/CAF duty of care has been exercised. Refer to paragraph 4.6.1 for details of airworthiness requirements and clauses applicable to solicitations and contracts for routine AT. Refer to paragraph 4.6.4 for details of airworthiness requirements and clauses applicable to solicitations and contracts for foreign operators conducting an Activity Relating to Defence for the DND/CAF. Consult DTAES 3-2 for further guidance, if required.

4.6 Contracting of Civil Aircraft Operators for the Conduct of Services for the DND/CAF

4.6.1 Air Transport (AT). As outlined in sections 4.3 and 4.5, the DND/CAF will need to exercise duty of care (in lieu of direct airworthiness oversight) of an Air Operator conducting routine AT for the DND/CAF. Annex A to this advisory provides general technical, operational and investigative airworthiness requirements and clauses to be inserted in solicitations for proposals and contracts in order to ensure, to the extent possible, adherence to DND/CAF safety standards. These requirements and clauses are intended as a guide, and they might need tailoring for individual contracts. Therefore, solicitations and contract documents need to be referred to DTAES 3‑2, Senior Staff Officer – Operational Airworthiness (SSO OA), and Director of Flight Safety (DFS) 2 staffs for confirmation of the airworthiness aspects before being issued.

4.6.2 Activity Relating to Defence – Canadian Civil Operator. As outlined in Paragraphs 4.4.1, a Canadian civil operator conducting an Activity Relating to Defence inside or outside Canadian airspace requires a TAO in accordance with reference 3.2.d. To ensure the operator’s adherence to DND/CAF airworthiness requirements, the technical, operational and investigative airworthiness requirements/clauses listed in Annex B of this advisory need to be inserted in solicitations for proposals and contracts. These requirements and clauses are intended as a guide, and they might need tailoring for individual contracts. Therefore, solicitations and contract documents must be referred to DTAES 3‑2, SSO OA, and DFS 2 staffs for confirmation of the airworthiness aspects before being issued.

4.6.3 Activity Relating to Defence – Foreign Civil Operator in Canadian Airspace. As outlined in Paragraph 4.4.2, a foreign civil operator conducting an Activity Relating to Defence inside Canadian airspace requires a TAO in accordance with reference 3.2.d. To ensure the operator’s adherence to DND/CAF airworthiness requirements, the technical, operational and investigative airworthiness requirements/clauses listed in Annex B of this advisory need to be inserted in solicitations for proposals and contracts. These requirements and clauses are intended as a guide, and they might need tailoring for individual contracts. Therefore, solicitations and contract documents must be referred to DTAES 3‑2, SSO OA, and DFS 2 staffs for confirmation of the airworthiness aspects before being issued.

4.6.4 Activity Relating to Defence – Foreign Civil Operator in Foreign Airspace. As outlined in Paragraph 4.4.3 and Section 4.5, the DND/CAF will need to exercise duty of care (in lieu of direct airworthiness oversight) of a foreign operator providing services to the DND/CAF in foreign airspace. Annex C of this advisory provides general technical, operational and investigative airworthiness requirements and clauses to be inserted in solicitations for proposals and contracts, to ensure, to the extent possible, adherence to DND/CAF safety expectations. These requirements and clauses are intended as a guide, and they might need tailoring for individual contracts. Therefore, solicitations and contract documents must be referred to DTAES 3‑2, SSO OA, and DFS 2 staffs for confirmation of the airworthiness aspects before being issued.

4.6.5 Activity Relating to Defence – Uncrewed Aircraft System/Remotely Piloted Aircraft System (UAS/RPAS). The policy to cover contracting of civil UAS/RPAS operators is still being developed. Until that policy is finalized and released, contracting of a civil UAS/RPAS operator to perform an Activity Relating to Defence will be managed on a case-by-case basis in accordance with paragraphs 4.6.2 to 4.6.4 above, but adapted to UAS/RPAS operation.

4.7 Overall Process Flowchart for the Oversight of Civil Operators Providing Air Services to DND/CAF

4.7.1 A graphic overview of the overall process to ensure appropriate oversight of civil operators providing air services to the DND/CAF is illustrated in Figure 1: Overall Process Flowchart for Oversight of Civil Operators.

Figure 1: Overall Process Flowchart for Oversight of Civil Operators

Annexes

A. General Airworthiness Requirements/Contract Clauses for Civilian Air Operators Conducting Routine Air Transport (AT) for the DND/CAF

B. General Airworthiness Requirements/Contract Clauses for Canadian Operators Conducting Activities Relating to Defence in Canadian or Foreign Airspace, and Foreign Operators Conducting Activities Relating to Defence in Canadian Airspace

C. General Airworthiness Requirements/Contract Clauses for Foreign Civil Operator Conducting Activities Relating to Defence in Foreign Airspace