Memoranda of understanding – The Department of National Defence and the Canadian Armed Forces

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 for the Department of National Defence and the Canadian Armed Forces

Table of contents

1. Introduction
2. Acronyms and Abbreviations
3. Definitions
4. Objectives and Scope
5. Activity Relating to Defence
6. DND and the CAF Responsibilities
7. TCCA Responsibilities
8. Communication
9. Differences in Interpretation and Application
10. Financial Arrangements
11. Security
12. Amendment
13. Duration, Withdrawal, Renewal and Termination
14. Effective Date
15. Points of Contact

1. Introduction

1.1 The Aeronautics Act of Canada (the Act) applies to both the Department of National Defence (DND) and the Canadian Armed Forces (CAF) and the Department of Transport, hereinafter collectively referred to as the “Participants”. The Act makes the Minister of National Defence (MND) responsible for any matter relating to defence (“Activities Relating to Defence”) and the Minister of Transport (MOT) for all other matters, including activities related to civil aviation.

1.2 When a Canadian civil registered aircraft is engaged in activities relating to civil aviation, the MOT, and more specifically Transport Canada Civil Aviation (TCCA), is the responsible authority. When a Canadian civil registered aircraft is conducting Activities Relating to Defence the MND is the responsible authority. The Participants must have a common understanding of their respective responsibilities and share a common methodology.

2. Acronyms and Abbreviations

AFM Approved Flight Manual
AFMS Aircraft Flight Manual Supplement
AMO (TCCA) Approved Maintenance Organization (TCCA)
AMO (DND and the CAF) Acceptable Maintenance Organization (DND and the CAF)
ATO Air Tasking Order
CADs Canadian Aviation Documents
CAF Canadian Armed Forces
CARs Canadian Aviation Regulations
CASI Civil Aviation Safety Inspector
CofA Certificate of Airworthiness
DND and the CAF Department of National Defence and the Canadian Armed Forces
DTAES Directorate of Technical Airworthiness and Engineering Support
GFE Government Furnished Equipment
IAW In Accordance With
MCA Military Capability Authorization
MND Minister of National Defence
MOT Minister of Transport
OAA Operational Airworthiness Authority
STC Supplementary Type Certificate
TAA Technical Airworthiness Authority
TAO Temporary Authority to Operate
TA/TO Tasking Order/Task Authorization
TCCA Transport Canada Civil Aviation

3. MOU Definitions

Activity Relating to Defence. For the purpose of this MOU, an activity, service or situation that has a connection to the national defence of Canada, and consequently a connection to the CAF.

AMO (TCCA). An organization approved by TCCA for the performance of maintenance of aeronautical products.

AMO (DND and the CAF). An organization accepted by the TAA for the performance of maintenance of aeronautical products.

Canadian civil registered aircraft. An aircraft that is on the Canadian Civil Aircraft Register and operated in accordance with an air operator certificate issued by TCCA.

Configuration. The set of installed or attached equipment, appliances or accessories, related to or required for a specific intended use or mission; usually readily changed or reversible. The functional and physical characteristics of hardware, firmware and software or a combination thereof as set forth in technical documentation and achieved in an aeronautical product.

Design change. The act of making, or the outcome from, a change to the approved type design of an aeronautical product. Design changes include modifications, alterations, or repairs, may require changes to the approved maintenance program and may allow changes to the approved role and/or mission.

MCA. Certification by the DND and the CAF that a proposed equipment, configuration, design change and/or capability complies with the DND and the CAF airworthiness standards. An MCA applies to a civil air operator conducting defence related services for the DND and the CAF and is issued by the TAA and OAA to declare that the air operator and the AMO (DND and the CAF) are acceptable and have been appropriately trained, the technical and operational requirements of the airworthiness program have been met, that the civil aircraft is acceptable to the DND and the CAF for use and that it is safe for operation in flight.

TAO. A special type of flight permit, issued jointly by the TAA and OAA, on behalf of the MND, that authorizes an aircraft on the civil register to perform activities related to defence. A TAO may be valid for a specific period or number of flights up to a maximum duration of twelve (12) months, but may be renewed as required. If necessary for a special equipment installation, and/or configuration, and/or design change, the TAAOAA may also issue a flight permit for a civil aircraft provided that the aircraft is operating under the authority of a TAO.

TA/TO. A formal document, signed by the DND 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.

4. Objectives and Scope

4.1 The objective of this Memorandum of Understanding (MOU) is to establish a mechanism to assist the Participants in facilitating the oversight transfer of the Participants’ responsibilities respecting Canadian registered civil aircraft performing Activities Relating to Defence, and more specifically respecting the aircraft’s operational and airworthiness requirements, in order for the Participants to ensure an equivalent and continuous level of aviation safety in implementing their respective areas of responsibilities.

4.2 Understanding these transfers will also ensure that technical and operational requirements associated with civil aircraft performing Activities Relating to Defence, will be properly identified in future contracting between civil aircraft operators and the DND and the CAF.

4.3 The mechanism set out in this MOU apply only in respect of Canadian civil registered aircraft performing Activities Relating to Defence, including matters related to the operational and airworthiness standards of these activities.

4.4 The Participants acknowledge that notwithstanding the wording used in this MOU, neither the MOU as a whole nor any of its parts taken separately are, or ever have been, intended to be a contract or to be relied upon by a third-party, and no contractual obligations are incurred by the Participants as a result of the existence of this MOU. Nothing in this MOU is intended to supersede, prejudice or otherwise derogate from the respective laws and regulations, administrative practices or procedures, or administrative or adjudicative decision-making of either TCCA or the DND and the CAF.

4.5 This MOU is in no way intended to be a procurement instrument. Any material procurement resulting from, or required by, the implementation of this MOU must be accomplished in accordance with the Participants’ applicable contracting laws, regulations and financial authorities.

4.6 This MOU, once in effect pursuant to paragraph 14.1 of this MOU, will supersede the MOU between the Department of National Defence, as represented by the Director General Aerospace Equipment Program Management and Commander 1 Canadian Air Division and Transport Canada Civil Aviation, as represented by the Director General Civil Aviation concerning the Technical and Operational Airworthiness Oversight of Civilian Operators Conducting Military Missions for the Department of National Defence and Civil Registered Aircraft Operated by the Department of National Defence dated June 21, 2012.

5. Activity Relating to Defence

5.1 It has been established that, when a Canadian civil registered aircraft is performing an Activity Relating to Defence, pursuant to the Act, that aircraft and Activity Relating to Defence would be within the scope of the MND authority to regulate.

5.2 In order for an activity to be considered an Activity Relating to Defence, for the purpose of this MOU, that activity 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.

5.3 Although not exhaustive, the following paragraph provides examples of Activities Relating to Defence, which are intended to assist the Participants determine whether an activity is an Activity Relating to Defence. When it is determined by the Participants that an activity is an Activity Relating to Defence, the activity must then be carried out in accordance with a TAO and TA/TO issued by the DND and the CAF.

5.4 For the purpose of this MOU, an Activity Relating to Defence is any activity under which one or more of the following applies:

• a) 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.
• b) Canadian military crew (as defined by the DND and the CAF) will be conducting operations onboard the aircraft;
• c) The aircraft will be under the direction of the Canadian military while performing the services;
• d) The aircraft requires the installation of Canadian military equipment or Canadian military aeronautical product;
• e) 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;
• f) The aircraft will be operated from a Canadian military airfield or ship;
• g) The activity being provided for the DND and the CAF are 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; and
• h) 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.

5.5 The Participants’ staff may be asked, on a case by case basis, to jointly evaluate Activities Relating to Defence not identified in this MOU to facilitate the determination of whether or not a civil registered aircraft should be under the responsibility of the DND and the CAF instead of TCCA’s.

5.6 The Participants understand that routine transport of military passengers and/or equipment onboard a Canadian civil registered aircraft for transport purposes is not considered an Activity Relating to Defence, even when these transport activities require flights from a Canadian military airfield.

6. DND and the CAF Responsibilities

6.1 DND and the CAF will be responsible for the following:

• a) The TAA/OAA may request TCCA assistance when the DND and the CAF is developing contractual agreements with civil air operators to ensure that Activities Relating to Defence, and associated operational/airworthiness standards, meet the intent of this MOU.
• b) The DND and the CAF will issue TAOs to all air operators conducting Activities Relating to Defence, and maintain a register that will be shared with TCCA.
• c) The DND and the CAF will provide copies to TCCA of all TAA/OAA approved TAOs, MCAs, flight permits, AFM Supplement (AFMS) and maintenance schedule supplements.
• d) When approving any modifications/ design changes using the MCA process, the DND and the CAF will consider whether:
  • i. The modification/design change affects the configuration of the aircraft only during the performance of Activities Relating to Defence and ensure the aircraft is returned to its civil configuration when it transfers back to civil operations, which TCCA would oversee; or
  • ii. The modification/design change includes or results in some permanent features which will affect the civil configuration, and require TCCA to either accept, or approve, the permanent portion of the modification/design change when the aircraft transfers to civil operations. Such “permanent features” could be physical (e.g. the installation of a bracket or an antenna) or it could be a change to the maintenance schedule/operating conditions.
• e) The DND and CAF will refer any proposed modifications/design changes described in subparagraph d) ii to TCCA for review, and will inform the civilian owner/operator that the DND and CAF approval does not indicate TCCA approval of such changes.
• f) When contracting for Activities Relating to Defence, the DND and the CAF will make clear to the Canadian civil air operator which regulatory regime respecting the airworthiness, operations and maintenance will apply to the affected aircraft.
• g) The DND and the CAF will direct the civil air operator to make an entry in the aircraft logbook referring to the applicable TAO and associated TA/TO anytime an aircraft starts or ceases performing an Activity Relating to Defence. This will clearly indicate which Participant is responsible at any given time.
• h) The DND and the CAF will conduct regular airworthiness audits on the air operators and/or maintenance organizations in respect of Activities Related to Defence they offer for the DND and the CAF and provide a copy of the written reports and audit results to TCCA, on request, or on the detection of any major/significant non-compliance to the defence related airworthiness standards.
• i) The DND and the CAF will provide MOU training to staff affected by this MOU, as required.

7. TCCA Responsibilities

7.1 TCCA will be responsible for:

• a) Conducting regular surveillance of Canadian civil air operators and/or AMOs, including sub-bases, with respect to matters that are not Activities Relating to Defence in accordance with applicable regulatory regime and TCCA policies, and providing a copy of the written reports and surveillance reports to the DND and the CAF, on request, or on the detection of any major/significant non-compliance to the civilian airworthiness standards.
• b) Reporting any compliance or enforcement action taken, such as suspension or cancellation of CADs, associated with a DND and CAF contracted Canadian civil air operator or their aircraft to the DND and the CAF.
• c) Assisting in the review of contractual agreements between civil air operators and the DND and the CAF to ensure Activities Relating to Defence, and associated operational/airworthiness requirements, are correctly identified in accordance with this MOU.
• d) Providing MOU training to all affected CASI’s, as required.

8. Communication

8.1 The Participants understand that communication is extremely important to ensure that aircraft can transition safely from the TCCA regulatory framework to the DND and the CAF regulatory framework and then return to the TCCA framework, without any negative effect on airworthiness, aviation safety or the safety of the public.

8.2 The Participants will provide points of contact, updated on an annual basis.

8.3 The Participants will meet on an annual basis to discuss the implementation of this MOU, including any airworthiness issues arising from contracts of civil aircraft performing activities related to defence. All meetings arrangements will be in compliance with the Treasury Board Guide to Travel, Hospitality, Conference and Event Expenditures (THCEE).

9. Differences in Interpretation and Application

9.1 The Participants will resolve any difference in the interpretation or application of this MOU through consultations and will not refer any difference to a national tribunal or any other third party for resolution.

10. Financial Arrangements

10.1 This MOU does not require any financial arrangements.

11. Security

11.1 All classified information exchanged or generated pursuant to this MOU will be used, transmitted, stored, handled, safeguarded, and disposed of in accordance with the Policy on Government Security and associated Directives and Standards issued by the Treasury Board of Canada.

11.2 Classified information will be transferred only through Government-to-Government channels or through channels approved by the Departmental Security Authorities of the Participants. Such information will bear the level of classification.

11.3 Each Participant will ensure that access to classified information is limited to those persons who possess the requisite security clearance, and a specific need-to-know for the purposes of this MOU.

11.4 Each Participant will take all lawful steps available to it to ensure that information provided or generated pursuant to this MOU is safeguarded from further disclosure without the originating Participant’s consent to such disclosure. Accordingly, each Participant will ensure that the recipients:

• a) Will not release the information to any national organization or other entity of a third party without the prior written consent of the originating Participant;
• b) Will not use the information for other than the purposes provided for pursuant to this MOU; and
• c) Will comply with any distribution and access restrictions on information that is provided pursuant to this MOU.

11.5 The Participants will investigate all cases in which it is known, or where there are grounds for suspecting, that information provided or generated pursuant to this MOU has been lost or disclosed to unauthorized entities. Each Participant will also promptly and fully inform the other Participant of the details of any such occurrences, of the final results of the investigation, and of the action taken to preclude recurrences.

11.6 All visiting personnel will comply with the security regulations of the Host Participant. Any information disclosed or made available to visitors will be treated as if supplied to the Participant sponsoring the visiting personnel and will be subject to the provisions of this MOU.

11.7 The responsibilities of the Participants involved regarding the use, transmission, storage, handling, safeguarding, disposal, and disclosure to third parties of information provided or generated pursuant to MOU will continue to remain in effect after this MOU is terminated as if the MOU had not been terminated.

11.8 Information provided or generated pursuant to this MOU may be classified as high as CONFIDENTIAL.

11.9 The existence of this MOU is UNCLASSIFIED and its content is UNCLASSIFIED.

12. Amendment

12.1 The Participants may amend this MOU at any time upon their mutual written consent. The designated points of contact for any revision or amendment are identified in Paragraph 15, Points of Contact of this MOU. An amendment to this MOU will take effect on the date of the later signature.

13. Duration, Review, and Termination

13.1 This MOU will remain in effect until it is terminated pursuant to paragraph 13.3 of this MOU.

13.2 The Participants may meet once per year to review the effectiveness of this MOU.

13.3 A Participant may terminate this MOU at any time upon six (6) months prior written notice to the other Participant.

14. Effective Date

14.1 This MOU will take effect thirty (30) days following the later signature.

15. Points of Contact

15.1 The Participants designate as their respective points of contact:

SIGNED, in duplicate, on this 20th day of October 2020.