Part 129 - Consultation
Note: This statement does not form part of the rules contained in Part 129. It provides details of the consultation undertaken in making the rules.
Background to the Rules
In April 1988 the Swedavia-McGregor Report on civil aviation regulation in New Zealand was completed. Following the recommendations contained in that report, the Civil Aviation Authority (CAA) (formerly the Air Transport Division of the Ministry of Transport) commenced a complete review of all existing civil aviation legislation. The existing legislation that is still appropriate is being rewritten into the new Rules format. New legislation is being generated where necessary for the areas not presently covered.
Considerable research was carried out to determine the format for the new legislation. It was decided that the legislative framework should incorporate the advantages of the regulatory system of the Federal Aviation Administration (FAA) of United States of America and the system being developed by the European Joint Aviation Authorities and published as Joint Aviation Requirements (JAR).
The new rules are structured in a manner similar to the Federal Aviation Regulations (FAR) of the FAA, and aim to achieve maximum harmonisation whilst allowing for national variations. Close co-operation is also being maintained with the Civil Aviation Safety Authority of Australia to ensure maximum harmonisation with their regulatory code.
New Zealand’s revised legislation is published as Civil Aviation Rules (CAR) which is divided into Parts. Each Part contains a series of individual rules which relate to a particular aviation activity.
Accompanying most Parts will be at least one associated Advisory Circular (AC) which will expand, in an informative way, specific requirements of the Part and acceptable means of compliance. For instance an AC may contain examples of acceptable practices or procedures which would meet the requirements of a particular rule.
The CAR numbering system is based on the FAR system. As a general principle the subject matter of a rule Part will be the same or similar to the FAR although the title may differ to suit New Zealand terminology. Where a CAR Part does not readily equate with a FAR number code, a number has been selected that does not conflict with any existing FAR Part.
The objective of the new rules system is to strike a balance of responsibility between the State authority and those who provide services and exercise privileges in the civil aviation system. This balance must enable the State authority to set standards for, and monitor performance of, aviation participants whilst providing the maximum flexibility for the participants to develop their own means of compliance.
Section 12 of the Civil Aviation Act 1990 requires participants in the aviation system to carry out their activities safely and in accordance with the relevant prescribed safety standards and practices. Section 28 of the Act allows the Minister to make ordinary rules.
Notice of Proposed Rule Making
To provide public notice of, and opportunity for comment on the proposed new rules, the Authority issued Notice of Proposed Rule Making 96-10 under Docket Number 1134 on 18 July 1996. This Notice proposed the introduction of Civil Aviation Rules Part 129 to provide a certification system for foreign operators that performed air transport operations to, from, or within New Zealand.
Supplementary Information
All comments made on the Notice of Proposed Rule Making are available in the rules docket for examination by interested persons. A report summarising each substantive contact with the Civil Aviation Authority contact person concerning this rule making has been filed in the docket.
Availability of the Document
Any person may view a copy of these rules at Aviation House, 1 Market Grove, Lower Hutt. Copies may be obtained from Publishing Solutions Ltd, PO Box 983, Wellington 6015, Telephone 0800 800 359.
Summary of Comments on Docket Number 1134 NPRM
1. General comments on the NPRM
Seven submissions were received on Part 129.
2. Specific comments on the NPRM
Specific comments received from the submissions are discussed as follows:
Subpart A – General
129.3 Definitions
One commenter suggested a slight variation to the wording used to define "operational responsibility.
The Authority response: Reference to operational responsibility is no longer used in this Part.
One commenter expressed concern in regard to the definition of foreign air transport operation contained in this Part and to air transport operation that was contained in Part 119 as, in the absence of a draft of Part 115, it was not clear how foreign operators would be controlled should they perform operations involving gliders.
The Authority response: Any operation involving the use of gliders for hire or reward will not be an air transport operation and therefore Part 119 or 129 will not apply. It is proposed that such an operation will be controlled under Part 115 that will deal with adventure aviation.
129.5 Requirement for Certificate
One commenter suggested additional wording, to cover the promotion of an operation during an application for that operation, to the effect that "the advertised service is subject to authorisation being granted by the Director" in order to provide a level of protection for the Director from becoming involved in commercial disputes and also to ensure the public are aware of this situation before the purchase of a ticket.
The Authority response: The Authority considers that the suggested wording is not necessary because the authorisation will not be the only determinant of whether a particular proposed operation will go ahead.
129.7 Application for certificate
One commenter was opposed in principle to the payment of an application fee.
The Authority response: These fees are set by the Civil Aviation Charges Regulations 1991. The fees structure is based on cost recovery.
129.9 Issue of certificate
Two commenters requested a definition or clarification of fit and proper person.
The Authority response: The Authority points out that section 10 of the Civil Aviation Act 1990 lists the criteria that shall be used by it to determine whether a person is fit and proper; however it agrees with the tenor of the comment that further elucidation would be helpful and so will, as the concept develops, inform industry, possibly through the appropriate AC, of those developments.
129.13 Operations Specifications
One commenter suggested a wording change so that operations specifications are associated with the certificate.
The Authority response: The Authority considers that the operations specifications form part of the certificate and so the rule now states that instead of using the term "associated with" or "applicable to".
One commenter suggested that there should be flexibility to accommodate substitution of aircraft in the event of aircraft unserviceability.
The Authority response: The Authority considers that flexibility already exists because the operator can nominate more than one type of aircraft provided the aircraft is authorised for the operation.
129.15 Duration of certificate
Two commenters suggested that approval should not be subject to an expiry date and that the rule should include a statement that continued authorisation by the country of domicile is a condition of continued validity.
The Authority response: Based on the Swedavia-Macgregor report recommendation that a terminating period be prescribed not exceeding 5 years, the Authority has adopted a policy that certificates will be issued for no longer than a 5 year period. This provides the CAA with a re-entry process to ensure continued compliance. Where it has been possible the CAA has provided for non-terminating certification, for example certificates of airworthiness. This Part also requires that the holder of a foreign air operator certificate continues to be authorised by its domicile certificate.
Subpart B - Foreign Air Operator – Certification requirements
129.51 Certification requirements
One commenter questioned whether the country of domicile would have jurisdiction to authorise operations to, from, or within New Zealand.
The Authority response: The Authority considers that the requirement is valid as the authorisation for a foreign air transport operator to perform an air transport operation to, from, or within New Zealand will be contained in the operation specifications under their domicile certificate.
One commenter suggested that the Director should be satisfied with the rules and the regulatory authority of the country of domicile.
The Authority response: The Director will have the discretion to find an exposition is not acceptable if it does not comply with New Zealand safety standards.
129.57 Air Operator Security Programme
One commenter suggested that this rule discriminates against scheduled operators to the benefit of charter operators.
The Authority response: Equivalent requirements can be imposed as a condition of the approval for any charter operation.
129.59 Air Operator Exposition
One commenter requested a definition for senior person.
The Authority response: 129.9 requires that a senior person is fit and proper. Section 9 of the Civil Aviation Act 1990 requires that any person who has control over the exercise of privileges under an aviation document is fit and proper. The Authority therefore believes any further definition of senior person is not necessary as it is any person who has control over the exercise of privileges under an aviation document.
One commenter requested clarification of wording in 129.59(8) and also that 129.59(9) should be deleted as it was already covered in 129.57 and that 129.59(11) was unnecessary and was not required in Part 119.
The Authority response: The wording of paragraph (8) is not considered to need the wording suggested because the country of domicile may not be the principal overseer. Paragraph (9) requires the procedures to be contained in the exposition whereas 129.57 only requires a programme. With respect to paragraph 11 the Authority considers that, although the requirement is not contained in Part 119, such a provision is required in this Part because there may be relevant information other than that required in paragraphs 1 to 10 that may be necessary to satisfactorily conduct foreign operations to, from, or within New Zealand.
Subpart C - Operating requirements
129.105 Records - Resources
One commenter suggested that the rule should specify a period for which records should be retained and that consideration should be given to the requirements of the country of domicile.
The Authority response: The Authority agrees with the need for a specific period for record keeping, however the requirement is necessary for our monitoring purposes and so the domicile practice is not considered relevant.
129.107 Changes to certificate holder’s organisation
One commenter suggested corrections to wording in paragraph (b) and a cross-reference in paragraph (c).
The Authority response: The Authority agrees that both were typographical errors.
129.111 Safety inspections and audits.
One commenter made reference to legislation before Parliament, and suggested a change from audit to monitoring. The commenter suggested that the CAA should only have access during airline normal hours of operation and by prior arrangement with regard to airline operational requirements. The commenter stated that there needs to be a clear statement as to frequency of compliance checks. The commenter stated that spot checks are potentially disruptive and not supported and that the cost of compliance checks should be carried by the CAA. The commenter suggested that confidentiality and record-keeping need to be addressed.
The Authority response: 129.111 has been deleted and reliance will be placed upon the Civil Aviation Act 1990 for this power. The CAA will normally carry out routine audits by pre-arrangement and during normal hours of airline operation. The CAA reserves the right to carry out such audits, monitoring, inspections or spot checks as the Director deems necessary to meet the requirements of the Act in the interests of civil aviation safety and security (refer Section 15 of the Act). New Zealand operates in a user-pays regulatory environment. Subject to any statutory limitations, the CAA operates on a system of protection of commercial confidentiality. Record-keeping requirements in line with those of domestic operators have been included.
Conclusion
The Authority concludes from this consultation that the majority of the aviation industry participants favour the direction of the new rules. Specific issues that were identified in the comments received from the consultative group have been addressed. The rules also meet New Zealand’s international obligations under the applicable ICAO Annex. The comments and all the background material used in developing the rules are held on the docket file and are available for public scrutiny. Persons wishing to view the docket file should call at Aviation House, 1 Market Grove, Lower Hutt and ask for docket file 1134.
Transitional arrangements
Part 129 contains a transition provision in 129.105. This provision will allow holders of air service certificates issued under the Civil Aviation Regulations 1953 to continue operating under those certificates for a maximum of 6 months from the time this Part comes into force provided certain conditions are met.
Regulatory activities
Part 129 replaces numerous requirements from the Civil Aviation Regulations 1953. It replaces the existing certification requirements under regulations 136, of the Civil Aviation Regulations 1953.
Section 14(2) of the Civil Aviation Amendment Act 1991 (as amended by section 34 of 1996 No. 91) deems the Civil Aviation Regulations 1953 that are continued in force by section 8 of that Act to be revoked on the close of 31 March 1997.
Section 14(3) states that any order, notice, requirement, circular, or other publication continued in force by section 8 shall expire on the close of 31 March 1997.