Part 91 - Consultation

Note: This statement does not form part of the rules contained in Part 91. 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 prescribing general operating rules, air traffic rules and flight rules.

Notice of Proposed Rule Making

To provide public notice of, and opportunity for comment on the proposed new rules, the Authority, on 25 November 1992 issued Notice of Proposed Rule Making 95-12 under Docket Number 1076 on 20 December 1995. This Notice proposed the introduction of Civil Aviation Rules Part 91 to establish General Operating and Flight Rules.

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 the Civil Aviation Authority, Level 15 Asteron Centre, 55 Featherston St, Wellington 6140. Copies may be obtained from the Civil Aviation Authority of New Zealand, PO Box 3555, Wellington 6140.

Summary of Comments on Docket Number 1076 NPRM

1. General comments on the NPRM

A total of 91 submissions were received, out of which 34 submissions expressed support of the comments submitted by the Helicopter Division of the Aviation Industry Association. From the 91 submissions received, 10 general issues were raised. These are discussed as follows:

1.1 One commenter stated that Subpart D ­ Instruments and Equipment Requirements is a radical departure from FAR Subpart D ­ Large and Turbine Multi-Engine Aeroplanes. The subpart should be completely reconsidered in that context, and any airworthiness items transferred to applicable Parts or other items to Subpart B ­ Operating Rules.

CAA response: The CAA does not consider that an equivalent to the FAR Subpart D ­ Large and Turbine Multi-Engine Aeroplanes is required in CAR Part 91. There are not, nor is it anticipated that there will be, a significant number of such aircraft operating solely under Part 91 as is the case in the United States. The significant items for these aircraft have been incorporated in Subpart F ­ Instrument and Equipment Requirements and are readily identified by the weight or passenger criteria for some items.

1.2 Three commenters stated that there should be a rule in Part 91 addressing emergency flights.

CAA response: Emergency flights are now dealt with by section 13A of the Civil Aviation Act as inserted by the Civil Aviation Amendment Act 1996. This provision was inserted in response to submissions made by the Aviation Industry Association to the Select Committee for Transport considering the Civil Aviation Law Reform Bill 1996.

The new section 13A clarifies the law regarding both in flight emergencies and flights made in response to emergencies. Section 13A specifies the types of requirements that may not be dispensed with in an emergency situation. Section 13A also makes clear that the operator has responsibilities as well as the pilot in command for compliance with certain core requirements in emergency situations. The Civil Aviation Amendment Act came into force on 13 August 1996.

1.3 One commenter stated that Part 91 should make provision for the Director to exempt the holder of an air operator certificate from any requirement in the Part.

1.4 One commenter noted that the majority of operating rules have paragraphs in which provision is made for the application of exemptions from the requirements of the rules. They considered that, for consistency, Part 91 should have a similar provision.

CAA response: The CAA disagrees with comments 1.3 and 1.4 as the inclusion of such a provision signifies that exemptions are readily available. This is not the case in Part 91 though it does not preclude petitions for exemptions in accordance with Part 11.

1.5 One commenter noted that the informal draft of Part 91 included Temporary Restricted Areas. The provision is consistent with FAR Part 91 and is appropriate for adoption in New Zealand particularly with the increase in electronic news gathering.

CAA response: The CAA considered that designation of Temporary Restricted Areas are best placed in Part 73 Special Use Airspace rather than in Part 91. Parts 71 and 73 are the rules covering all designation of airspace in the New Zealand system.

1.6 One commenter referred to CAR Part 26, which, while dealt with separately, can't be disregarded in the context of Part 91. Part 26 is purported to deal with occupant safety and takes from Part 91 some items included in the informal draft. This commenter is totally opposed to separating out of basic safety requirements where they need to be specified.

One commenter considered that the information contained in Appendix A should be contained in CAR Part 21 as, again, they are means of compliance.

CAA response: The instruments and equipment are structured in terms of aircraft certification requirements prescribed in Parts 21 and 26 whereas the operating rules such as Part 91 prescribe the operational requirement that the operator determines on the basis of the type of operation the aircraft is conducting. The CAA agrees with the commenter and the basic safety requirements, such as first aid kits, are now placed in Part 91.

1.7 One commenter suggested that Subpart C should be further divided into three subparts titled Flight Rules, Visual Flight Rules and Instrument Flight Rules. If this is adopted they suggest that Subpart B be renamed as General Operating Rules.

CAA response: The CAA agrees and the final rule is so amended.

1.8 One commenter expressed concern that this NPRM continues the practice, apparent in a number of rules, of being too prescriptive and mixing rule requirements with information on how compliance with the rule can be achieved. A number of 91 rules are cited as examples of rules which should be incorporated in an Advisory Circular as information on rule compliance. On the other hand one of the rules is already promulgated in the Aeronautical Information Publication (AIP) and the requirement to state it in a rule is questioned.

CAA response: The CAA does not agree and the other commenters do not agree that the rules are too prescriptive and mix rule requirements with means of compliance. The commenter makes reference to rules in the AIP. Such rules were made under the authority of the Civil Aviation Regulations 1953. In future there will be no rules prescribed in the AIP. The AIP will repeat some Part 91 flight rules, in some cases in a friendly diagrammatic format, and otherwise it in essence it will serve as an Advisory Circular for Part 91.

1.9 One commenter noted that the rule referred to CAR Part 73 and expressed concern that Part 73 or 71 have not being promulgated for consultation. On this basis the commenter considered that Part 91 should not progress as a final rule until Parts 71 and 73 are available for consideration.

CAA response: The CAA disagrees in that Parts 73 and 71 will designate airspace as presently designated under the Civil Aviation Regulations 1953 and any proposed changes will be processed in accordance with Part 11.

1.10 One commenter stated that the matter of continuation of glider "trial instructional flights" has not been resolved in terms of rulemaking. The commenter considers that it is not appropriate for Part 91 to progress to the final rule stage before Part 91 or another rule part addresses the issue.

CAA response: The CAA does not agree. The issue of "trial instructional flights" is not dependant on Part 91. The resolution of this issue lies with the determination of whether such flights are for hire or reward and consequently which rules are applicable to them. The operations referred to by this commenter and other similar operations for hire or reward will be dealt with in Part 119, Air Operator Certification, or in Part 115, Adventure Aviation - Certification and Operations.

1.11 One commenter suggested that Part 91 should prescribe the requirements for IFR operations at unattended aerodromes and off evaluated routes. With GPS making it possible for nearly every aerodrome to have IFR procedures, it may be impractical to continue to establish Instrument Approach Restricted Areas. At non-controlled aerodromes served by an instrument approach, a higher meteorological minima could be required for VFR NORDO operations. Operating at meteorological conditions below 1000 feet cloud base and 5 kilometres visibility could require all aircraft to have serviceable radios. This would need to be covered in 91.147 and 91.157. In addition all topographical charts, the final approach tracks of all instrument approaches could be published to provide VFR pilots additional awareness of IFR procedures.

CAA response: This is a matter for resolution in CAR Part 73 Special Use Airspace and the resolution may require amendment to Part 91 as suggested.

2. Specific comments on the NPRM

Specific comments received from the Part 91 submissions are discussed as follows:

2.1 91.1 Applicability [Final rule 91.1]

The New Zealand Parachute Federation commented that, it was not clear that Part 91 didn't apply to persons carrying out parachute descents. They suggested that paragraph (b) should include "persons carrying out parachute descents in accordance with Part 105".

CAA response: The CAA agrees with the commenter and has made amendments to clarify that the rule does not apply to persons carrying out parachute descents.

2.2 91.3 Definitions

Four commenters stated that the definition of "Fully functioning dual controls" should include helicopters and suggested words that could be used.

CAA response: The CAA agrees and has adopted a generic definition that will apply to all aircraft.

One commenter considered that the following terms should be defined as they are not adequately defined elsewhere in the rule part:

  • controlled airspace
  • Class C airspace
  • Class D airspace
  • Class E airspace
  • airworthy
  • flight

CAA response: The airspace referred to are presently defined under the Civil Aviation Regulations 1953 and in future will be defined under Part 71 Designation of Airspace. The term "airworthy" is now included in Part 91 but the term flight is as defined in the dictionary and no further definition is necessary.

Two commenters suggested that the term "congested area" should be defined and provided suggested wording.

CAA response: CAA agrees and has included this definition in the final rule.

One commenter suggested an amendment to the definition of the abbreviation "QNH".

CAA response: The CAA does not agree as the adopted definition is a standard international definition and the proposed amendment has no added value.

One commenter suggested that the definition of "aircraft flight manual" should be amended by referring to a "foreign registered aircraft" in the second line.

CAA response: The CAA agrees and has amended the definition accordingly.

The same commenter considered that the terms "aeroplane" and "aircraft" needed to be defined.

CAA response: These are already defined in Part 1.

One commenter considered that the word "in ground effect" should be deleted from the definition of "hover" as a helicopter can hover at any height.

CAA response: This has been removed as a definition and the term "hover in ground effect" is used in a rule when that rule only applies to "hover in ground effect.

2.3 91.5 Cost Sharing [Final rule definition of cost sharing and air transport operation]

Several commenters considered that a number of operations, the likes of ferry or test flights, trial flights, and flight training, should be included in this rule.

CAA response: The purpose of this rule is clarify that some types of flights, which may have an element of hire or reward and thus considered to be air transport operations are deemed not to be so. The CAA does not consider that the types of flights referred to by the commenter fall into this category. As this rule is related to the definition of air transport operations it has been reshaped as a definition of the term cost sharing flight which term is included as one of the exceptions in the definition of the term air transport operation.

One commenter suggested that the word "equally" should be removed in paragraph (a)(1)(iii).

CAA response: The CAA disagrees as the inclusion of this term ensures that they are bone fide cost sharing flights. The removal of this word could mean that the pilot does not need to contribute to the cost and as such the flight could be deemed to be an air transport operation.

The New Zealand Parachute Federation considered that either add an exemption for persons operating aircraft for the carriage of parachutists to altitude for the purposes of parachuting in compliance with CAR Part 105, or transfer all such definitions to the one place in CAR Part 119.

CAA response: The CAA agrees and this rule is now a definition in Part 1 and incorporated into Part 119 partly in response to this comment and on the basis that it assists in defining what is, and is not, an air transport operation.

2.4 91.7 Compliance with signs, placards and crew instructions [Final rule 91.5]

One commenter suggested an amendment to paragraph (2) inserting the words"...if installed, correctly about......and keep it fastened correctly unless...."

CAA response: The CAA does not agree as the proposed amendment is superfluous and does not add value to the intent of the rule.

One commenter suggested an amendment in accordance with the sense evident in other Part 91 rules to a negative statement.

CAA response: The CAA does not agree and the word "shall" is used in this and other rules as an imperative for compliance.

2.5 91.9   Portable electronic devices [Final rule 91.7]

One commenter considered that the rule should permit the use of some portable electronic devices in addition to those exempted when identified as safe by the industry.

One commenter stated that this draft rule is totally inconsistent with the equivalent rule in FAR Part 91. The same commenter considered that paragraph (c) should be deleted in total and replaced by a simple statement that any portable electronic device may be used provided that the operator has determined it will not cause interference.

One commenter stated that the rule is an overreaction that is currently the subject of industry study. They currently permit their use after take-off but the devices are turned off prior to landing. This practice is consistent with the policies of other international carriers and seems to work well. If CAA wish to control use of portable electronic devices then a more flexible mechanism than a permanent rule needs to be found. The rule as written would impose a significant commercial disadvantage.

CAA response: CAA has given due consideration to these comments but has adopted a rule based on the latest information derived from research conducted overseas (RTA). The requirements of this rule will minimise the effect of portable electronic devices and is similar to the requirements being adopted by other States.

2.6 91.11   Carriage and discharge of firearms [Final rule 91.9]

One commenter requested that the limitation of paragraph (b)(3)(iii) regarding discharge of firearms at night be removed. Most aerial shooting operations are carried out in the late evening or early morning, the NPRM, as written, would preclude some of this work and make many existing operations illegal. We do not believe that this is an issue affecting aviation safety.

The requirements of the Arms Act for a shooter to positively identify the target will cover the situation. The advent of modern night vision systems and sights make target identification and definition much easier. If a helicopter is appropriately equipped for night operations, and the pilot is appropriately rated for night flying then it should be up to the operator to carry out any shooting operations in accordance with the requirements of the Arms Act.

CAA response: CAA agrees and has removed the night prohibition.

One commenter stated that they have special procedures in place currently to allow diplomatic protection squad members to carry firearms on domestic sectors. The personnel are approved by the Director. The new rule doesn't refer to such a process. Could the current practice be reviewed to see if it needs amplification in the rule.

CAA response: The requirements regarding carriage of firearms on air transport operations have been relocated to Parts 121 and 135. These rules now permit persons lawfully entitled to carry firearms in the course of their duties to do so providing they are authorised by the Director in accordance with rule 19.301.

2.7 91.51   Aircraft airworthiness [Final rule 91.101]

Two commenters stated that all reference to aircraft logbooks should be deleted in paragraph (b)(1) and insert appropriate references to approved manuals. Not all operators carry a logbook on board aircraft. Other documents, currently acceptable to the Director constitute part of the aircraft logbook, for example technical/maintenance logs.

CAA response: CAA agrees and has removed the reference to a log book.

One commenter considered that paragraph (b) should also apply to aircraft ferry flight for renewal of its airworthiness certificate in paragraph (b)(1). The same commenter noted that paragraph (b)(1) states "fit for flight" and asks by whom.

CAA response: CAA does not agree as a special flight permit is required to ferry an aircraft in this condition. The rule has been amended to clarify who is entitled to certify an aircraft fit for flight.

2.8 91.55   Aircraft flight manual [Final rule 91.109]

One commenter stated that the rule assumes all aircraft will have a flight manual but notes that 91.121 recognises that all aircraft may not have a flight manual.

CAA response: In terms of Part 91, all aircraft are required to have a flight manual. If there are exceptions to this requirement, they are to be found in the appropriate operating rule as an exception to this rule.

One commenter asks "whose flight manual"? This goes back to the provisions of Part 21, but does an operator have the right to get special provisions approved?

CAA response: The definition of aircraft flight manual has been amended to clarify that the aircraft flight manual is that specified in the airworthiness certificate issued under Part 21, Subpart H. Approval of changes to the flight manual are dealt with in Part 21.

One commenter suggested that this rule be amended to reflect the intent, as outlined in the preamble to this NPRM, that Part 91 is pivotal legislation, but able to be modified by other Parts for specific types of operation. It is suggested that after word "manual" the following be added "or such limitations as may be contained in other Parts specific to particular types of operation."

CAA response: The CAA does not agree that this is necessary and such a statement would be superfluous. The rules are logically structured to identify in the applicable operational rule Part any exceptions or additional requirements to those specified in Part 91.

2.9 91.57   Aircraft maintenance and equipment

One commenter suggested that in paragraph (1), the words "in accordance with Part 43" be added. This will ensure maintenance has been carried out in accordance with the rules.

CAA response: This is not needed as this rule addresses the requirements in terms of aircraft operations whilst Part 43 addresses the specific maintenance requirements.

2.10 91.59   Documents to be carried [Final rule 91.111]

One commenter stated that the rule assumes all aircraft will have a flight manual but notes that 91.121 recognises that all aircraft may not have a flight manual.

CAA response: This issue has been addressed in response to a similar comment to 91.55.

Three commenters considered that the requirements to carry the technical log in the aircraft at all times should be removed.

One of the commenters stated that many operators have alternative methods of informing the pilot of the status of an aircraft. The requirement of 91.51(a)(2) will ensure airworthiness without an extra piece of paper to be carried in the aircraft. Carriage of the technical log is not a safety issue.

Another commenter stated that that they have an opinion that in private operations, such as our members are primarily involved with, has no need for the additional paper work of a technical log. Private aircraft in the large part are single or few pilot operated and most private owners are closely involved with the maintenance and operation of their aircraft. The inclusion of another "piece of paper" to satisfy the bureaucrats does nothing to improve the present state of knowledge, but instead increases the irritation level and therefor the chance for the overzealous inspector to pick minor holes in the operations of an aircraft. We are not convinced there is any significant gain to safety in this requirement in private operations that exist at present - just a significant loss from the irritation of yet another useless form to be completed.

The other commenter stated that the technical log is not required to be carried in the aircraft if the operator has other means of meeting the requirements of NZCAR F.6 - Paragraph 4. Therefore you will need to cover the exemptions as listed in F.6 4.3.

CAA response: This rule addresses the carriage of documents not the requirement to have a document. The requirements for a technical log are contained in 91.281 and these comments are included in the CAA response to that rule.

One commenter suggested that the requirement should be for the documents to be carried in the aircraft during flight.

CAA response: The requirement is to carry the documents during aircraft operations and the term flight is too limiting.

2.11 91.63   Flight attendant requirements [Final rule 91.115]

One commenter considered that the rule should be modified to reflect that one flight attendant per 50 passengers should be carried unless the aircraft flight manual requires a different figure.

CAA response: The CAA does not agree as aircraft flight manuals do not address the requirements for flight attendants.

One commenter recommended an amendment to say that "a flight attendant is not required to be carried in an aircraft below 10 886 kg MTOW with a single passenger compartment for not more that 27 passengers which is immediately adjacent to and accessible from, the flight crew stations.

CAA response: The CAA does not agree as the rule must address a safety standard applicable to all aircraft. This safety standard, as adopted internationally, requires flight attendants on any aircraft carrying 20 or more passengers. The exception provided under CASO 10 for the carriage of up to 23 passengers has been removed from this rule. A grandfather clause for the only aircraft types to which the CASO exception applied is included in the rule. In future, any exception to this rule will require the submission of a petition for an exemption from the rule as prescribed in Part 11.

One commenter noted that paragraph (a)(1) is inconsistent with rule 121.511(c)(3). They propose that the higher standard of one flight attendant for 16 to 24 passengers, and two flight attendants for 25 to 50 passengers be adopted.

One commenter noted that the requirements of this rule vary significantly from those stated in 121.511. The lack of consistency across two major Parts is cause for concern and suggest that greater care needs to be made in cross-checking the Parts and in providing explanation to the aviation industry.

CAA response: The CAA does not agree as the standard in this rule is for Part 91 operations. The commenters quite correctly refer to the higher standard required under Part 121 for air transport operations but there is no justification for applying the standards to Part 91, which primarily are operations that do not involve hire or reward.

One commenter opposes the inclusion of paragraph (b), submitting that it is impracticable to expect flight crew to be responsible for fully carrying out passenger safety functions on an aeroplane with up to 24 passengers. They recommend retention of the threshold of 19 passengers.

CAA response: The CAA agrees.

One commenter supports inclusion of paragraph (c) but submits that this provision should be strengthened by the addition of a requirement to read:

"has completed and been examined to the satisfaction of the person responsible for training in both written and practical safety exercises on the aircraft type."

CAA response: The CAA does not agree that this requirement applies to Part 91 operations. This requirement is valid for air transport operations and as such is required under Parts 121 and 135. In reality with the exception of some aircraft operating exclusively under Part 91, most aircraft required to carry flight attendants are engaged in air transport operations and when being operated exclusively under Part 91 would carry the same trained and qualified flight attendants.

One commenter considered that an exception is required for aircraft carrying parachutists for the purpose of conducting parachute descents.

CAA response: CAA agrees and has added this exception in the rule.

2.12 91.65   Designation of pilot-in-command [Final rule 91.117]

One commenter stated that the wording of this rule is poor, and as a result is confusing. The rule should make a positive statement as to when a second-in-command is required.

One commenter stated that this rule should be modified to cover the situation of four-pilot crews with two captains with specific periods of duty. Some operators on international flights currently use this practice for safety reasons.

One commenter asks how "for the duration of the flight" would be applied to four-pilot crews with two captains with specific duty periods of duty.

CAA response: CAA agrees and has redrafted the rule to improve its readability and to take into account the situation of four-pilot crews.

One commenter stated that the words "when a flight is planned" should be deleted. Airlines plan their schedule months in advance and designating pilot-in-command would not be possible.

CAA response: The CAA does not agree as the planning in this rule does not relate to the planning of schedules. In the context of this rule the word planned is to require the operator to designate the pilot-in-command prior to every flight.

2.13 91.67   Alcohol and substances of abuse

This rule has been withdrawn at the request of the Ministry of Transport. It is intended that the standards be placed in primary legislation together with powers and procedures for enforcing the standards. In the interim regulation 56 of the Civil Aviation Regulations 1953 has been carried over into Part 19 Transition Rules.

2.14 91.71   Aircraft taxiing [Final rule 91.119]

One commenter suggested that it should include authorisation by "their approved agent as defined in the operator's exposition". This provision would allow persons and organisations nominated by the operator to authorise persons to taxi their aircraft. Another commenter stated that "authorised by the operator" might serve to hinder maintenance organisations. Could this be expanded to cover persons authorised by the maintenance organisation. The operator could ensure the maintenance firm has a procedure to determine who is competent to taxi their aircraft.

CAA response: CAA agrees to include persons authorised by a maintenance organisation. CAA does not agree to make reference to the "operator's exposition" as this is document is only required by the holder of an air operating certificate under Part 119.

One commenter stated that the requirement of paragraph (3) "have received instruction" raises the issue of who is competent to give instruction and does it require documentation and recurrence checking. The same commenter also suggested that paragraph (3) be amended to read "is familiar with the aerodrome layout...".

CAA response: CAA agrees and the rule now refers to being competent and to be familiar with the aerodrome layout.

One commenter stated that the Radio Communications Regulations 1993 required the user of a radio to be the holder of a Flight Radio Telephone Operator Certificate and the rule should recognise the requirement. The same commenter also considered that the requirement to "comply with ATC instructions if at a controlled aerodrome" should be added.

CAA response: The Radio Communication Regulations 1993 do not require each user of a radio to be the holder of a Flight Radio Telephone Operator Certificate and the requirement for competency in the use of a radio is correct in the context of this rule. There is no need to add the requirement to "comply with ATC instructions..." in the rule as it is included in paragraph (3).

2.15 91.73   Stowage of food, beverage, and passenger service equipment [Final rule 91.121]

Two commenters stated that there should be no requirement for food trays to be in the stowed position for taxiing. This requirement should be for take-off and landing only.

CAA response: This is a standard requirement prescribed by most States and practised by New Zealand airline operators. There is a compelling safety reason to maintain the integrity of evacuation routes during taxiing as there is during take-off and landing.

One commenter suggested that the rule should include "each passenger seat or berth is in the specified configuration for take-off and landing, or taxiing, as applicable at the material time".

CAA response: CAA agrees and has included this requirement in the rule.

2.16 91.75   Flight instruction [Final rule 91.123]

One commenter stated that, as the rule is applicable to helicopters, add the helicopter controls unless the definition of "fully functioning dual controls" is modified to include helicopter controls.

One commenter stated that, as written, the rule deals with a person rather than the aircraft and this is considered inappropriate. It also lacks any reference to rudder (yaw) control and in any case the control function should be used rather than the name of the control itself. Such terminology would cover the use of "elevons", for example, let alone terms for controls that have yet to be developed. The rule should be substituted and titled "aircraft suitability for flight instruction" and a draft rule is suggested.

CAA response: CAA agrees with the commenters and has adopted the suggested generic definition referring to pitch, roll and yaw rather than describe the control surfaces.

One commenter considered that another rule is required titled "Conduct of flight instruction". This provision in regard to flight instructor does not appear to be adequately covered anywhere else in the rule and was thought to be important enough to be included as a separate rule. Category A instructors are considered sufficiently qualified and experienced to be able to handle the flight instruction role in the lighter aircraft without the need for a specific type rating.

One commenter requested that the rule specify who, and the qualifications, for the person giving flight instruction.

CAA response: The qualification requirements for giving flight instruction are contained in Part 61. The purpose of this rule is to specify the requirement for dual controls which is not contained in Part 61.

One commenter stated that in their submission to the informal draft they raised the issue of aircraft that have two seats but only capable of being fitted with one set of flying controls, for example P-51 Mustang and some older agricultural aircraft. They request that this situation be given further consideration to allow instruction to be given in such aircraft for the purpose of gaining a type rating or gaining specific role experience related to the aircraft.

CAA response: Rather than provide an exception for such aircraft in Part 91, CAA considers that any exception should be addressed in Part 61 in terms of type ratings. This exception could be required for a number of other aircraft such as those used in agricultural operations and will be addressed in the review of Part 61.

One commenter suggested that paragraphs (1) and (2) should be combined and read "..is an aircraft equipped with flight and engine controls so arranged that these controls can be operated simultaneously from either crew station."

CAA response: CAA considered this suggestion but did not adopt it as the use of two separate paragraphs highlights the two different requirements.

One commenter stated that the rule does not address the possibility of dual instruction in flight for flight engineer station, nor does it take into account the critical systems operations required in some aircraft, notably large ones.

CAA response: The CAA doubts that there will be dual controls at flight engineer stations for the purpose of instruction and therefore has not included it in this rule.

2.17 91.77   Simulated instrument flight [Final rule 91.125]

One commenter stated that, as written, the rule deals with the person mainly rather than the aircraft and this is considered to be inappropriate. It also lacks any reference to rudder (yaw) control and in any case the control function should be used rather than the name of the control used. Such terminology would cover the case of "elevons", for example let alone terms that have yet to be invented. They suggest that the rule should be deleted and provide a draft replacement.

CAA response: CAA agrees and has adopted this terminology in the definition of "fully functioning dual controls".

One commenter stated that provision should be made for simulated instrument flight to be carried out with only one set of controls in situations where the flying pilot is able to rapidly remove the means of simulation. The availability of simulated instrument flight should be maximised as the more flight practice a pilot has, the more prepared they will be when the skills are called upon in actual IMC conditions. By way of an explanation, one situation we see this provision working in is the case where an operator carries out a task and is returning to base. In a number of cases, particularly with helicopters, the role equipment installed prevents the installation of a second set of controls. Whilst a safety pilot is carried it is not legally possible to carry out simulated instrument flight, even though the safety pilot has adequate vision and the pilot flying can remove the simulation device rapidly.

CAA response: CAA agrees and has included this provision in the rule.

One commenter suggested that paragraphs (1) and (2) should be combined and read "...is an aircraft equipped with flight and engine controls so arranged that these controls can be operated simultaneously from either crew station."

CAA response: CAA considered this suggestion but did not adopt it as the use of two separate paragraphs highlights the two different requirements.

2.18 91.70   Use of aerodromes [Final rule 91.127]

One commenter stated that paragraph (a) should recognise that this rule covers operation at or in the vicinity of an aerodrome. As written it tends to infer operations of an aircraft in general when this clause concerns only one element of operation. The commenter recommends that paragraph (a) be amended by adding the words "in the vicinity of an aerodrome unless they".

CAA response: CAA does not agree as flight in the vicinity of an aerodrome is not appropriate in this rule, which is to do with the use of aerodromes. The flight rules applicable to flights in the vicinity of aerodromes are contained in NPRM 91.125 [Final Rule 91.223] Operating on and in the vicinity of aerodromes.

One commenter stated that the use of the word "ensure" in paragraph (a)(2) could infer that physical installation or implementation action shall be taken. In the case of landing or taking off at an aerodrome not under the direct control of the person concerned this is not appropriate. It is appropriate, however, to confirm that the lighting available is suitable for the aircraft and operation concerned. The commenter recommends that in paragraph (a)(2) the word "ensure" be replaced with the word "confirm".

CAA response: CAA agrees and the rule does not now contain the word ensure.

Two commenters stated that this rule, in contrast to CAR Part 139, allows aircraft to operate from a place which is not certificated under Part 139 provided the applicable standards are met. The rule needs to be rewritten.

CAA response: CAA does not agree. The rule does not require the use of certificated aerodromes. The reference to certificated aerodromes is only in the context that if the aerodrome used is certificated under Part 139, compliance is required with the limitations and operational conditions applicable to the aerodrome.

One commenter stated that it is impossible for a pilot to comply with paragraph (a)(4) particularly when operating at night. Whilst the runway may have been inspected at night by a responsible person there is no way that a pilot can ensure that the runway is clear of all persons, and the like, considering that the runway can be 3500 metres long. The rule should be withdrawn.

CAA response: CAA does not agree to withdraw this requirement but has amended the rule so that the word "ensure" is not used.

One commenter considered that paragraph (c) should refer to the applicable Advisory Circular related to Part 139 heliports rather than the general terms specified.

CAA response: CAA does not agree as the provisions of paragraph (c) are a must, and therefore properly in the rule as they were in Part 139.

2.19 91.82   Noise and vibration at aerodromes [Final rule 91.13]

One commenter suggested that the rule should take into account both the situations of pilots and engineers doing engine run ups and the operation of engine test beds. For this purpose the commenter suggested that the word "pre-take-off" should be deleted in paragraph (c)(i).

Another commenter stated that the rule makes no reference to noise and vibration when the certifying engineer is operating engines for the purpose of:

  • manoeuvring the aircraft for compass swinging
  • engine power and systems check
  • pressurisation ground runs

The commenter stated that if this is an omission, it would be prudent to identify the Resource Management Act for the purpose of engineering ground run compliance.

CAA response: CAA agrees with these comments and has extended the provisions of this rule to persons other than pilots.

One commenter stated their support for this rule and believes that it should provide an appropriate legal mechanism against unrealistic local body plans.

CAA response: The intent of this rule is to give effect to section 97(1) of the Civil Aviation Act. The purpose of section 97(1) is to prevent the common law action of nuisance being brought in respect of specified noise and vibration. It is not the intention of the policy to restrict any powers that territorial authorities may have under the Resource Management Act.

2.20 91.83   Prohibited, restricted, and danger areas [Final rule 91.129]

Two commenters stated that they are unable to comment on this rule as Part 73 is not yet published. One commenter stated that Part 91 should not be progressed to a final rule until the NPRM's for Parts 71 and 73 are available for public scrutiny.

CAA response: CAA does not agree as Part 91 only prescribes the use of these areas and the absence of Part 73 does not inhibit comment on this rule. Part 73 will designated such areas in accordance with the rule making procedures and until the rule comes into force, the areas are those presently designated under the Civil Aviation Regulations 1953.

One commenter stated that the rule should also prescribe instrument restricted and low flying areas with a provision to ensure that the applicable conditions are complied with.

CAA response: The operating requirements for flight within instrument approach restricted areas are now found in 91.133(b)(2). The operating requirements for flight within a low flying area are now found in 91.135. These areas are designated under Part 73.

One commenter noted that the informal draft included "Temporary Restricted Areas". They are concerned that this provision was deleted from the NPRM and asks where such airspace will be addressed in the rules.

CAA response: CAA has concluded that "temporary restricted areas" are special use airspace and thus are now to be included in Part 73, Special Use Airspace. The NPRM for Part 73 is being developed and will be distributed for comment in the near future and there should be no delay in making this provision.

2.21 91.135   Low Flying Areas [Final rule 91.131]

CAA comment: This rule was unintentionally not included in the NPRM. It has been added in this subpart on the basis that it is an existing requirement and in retrospect CAA considered it properly placed in Part 91 as a final rule.

2.22 91.103   Safety of aircraft [Final rule 91.201]

One commenter considered that in paragraph (2), the words "during flight" should be replaced with the words "at all times". A pilot-in-command must be shown to be responsible for the aircraft and its occupants on the ground as well as in the air. However, if the term "flight" is adequately defined this amendment will not be required.

CAA response: CAA agrees. The rule is amended to use the words "during flight time" on the basis that this is consistent with the use of the term throughout the rules and "flight time" is defined in Part 1. This period may be extended in other rules in relation to the operator but not to the pilot-in-command.

One commenter stated that it is not reasonable to expect a pilot-in-command to "determine that the aircraft is in condition for safe flight". If there is an accident or an incident because of a mechanical failure or negligence on maintenance personnel's behalf, can the pilot-in-command be held responsible?

CAA response: CAA considers that it is reasonable for the pilot-in-command to determine that the aircraft is in condition for safe flight. The pilot-in-command conducts the final check of the aircraft in terms of what is commonly referred to as the walk around. Any failures in flight due to the negligence of another person does not place liability on the pilot-in-command if the failure is of a part or component of the aircraft that is not subject to the walk around check.

2.23 91.105   Authority of the pilot-in-command [Final rule 91.203]

One commenter considered that this rule would be more effective if it empowered the in-flight service director or equivalent person who has more contact with the passenger and better able to make the judgement first hand. Otherwise it can be a disruption just before departure when the Captain is busy.

CAA response: CAA does not agree as the pilot-in-command has empowerment under the Aviation Crimes Act to issue such commands and to enforce compliance. This does not prevent another person such as the in-flight service director advising the pilot-in-command that such an action is necessary.

2.24 91.107   Flight crew members at stations [Final rule 91.205]

One commenter stated that paragraph (a)(2) refers to a "safetybelt" whereas it is referred to a "seat-belt in 91.109(a) and consistency is needed in the use of these terms. The commenter suggested that these devices be generically termed as "specified personal safety restraints" and provided a suggested rule draft incorporating the term.

CAA response: CAA acknowledges the inconsistent use of "safety belt" and "seat belt" and has amended the rules to refer solely to "safety belt" which is the proper term for this equipment.

One commenter considered that the rule does not address flight dispatchers and winch operators.

CAA response: Any exceptions for the likes of flight dispatchers and winch operators are contained in the appropriate rule part such as Part 133, Helicopter External Load Operations, for winch operators.

2.25 91.109   Occupation of seats and wearing of restraints [Final rule 91.207]

One commenter considered that it is not possible in many aircraft for the pilot-in-command to "ensure that each passenger is seated in a seat or berth with their seat-belt, restraining belt, or shoulder harness fastened". The pilot-in-command can recommend either through delegation to crew, annunciation of passenger lights or through the PA system that this be done but not "ensure" this has been done.

CAA response: CAA agrees and has amended the replacing the word "ensure" with "require". The practice on larger aircraft is that this is a crew function not conducted physically by the pilot-in-command but is given advice that this function has been done.

One commenter considered that the rule is poorly drafted as a passenger could fasten shoulder harness only and disregard the seat-belt and restraining belt. The commenter suggests that it should read "...with their seat-belt, restraining belt and shoulder harness, if fitted, fastened".

CAA response: CAA does not agree as the requirement for passengers to fasten their safety belt or other restraining device is contained in 91.7.

One commenter whilst agreeing with the exception for parachutists suggested that for clarity paragraph (c) should be amended to say "...or being carried during parachute operations".

CAA response: CAA agrees and has made this exception in the rule.

2.26 91.111   Use of oxygen equipment [Final rule 91.209]

One commenter stated that the rule does not allow for the operation of a pressurised aircraft unpressurised.

CAA response: CAA does not agree as in the context of this rule the term pressurised means operating in a pressurised mode not that the aircraft is capable of being pressurised. Should a pilot-in-command elect not to pressurise the aircraft, paragraph (a) would apply to that flight.

One commenter considered that the oxygen requirements of FAR 91.211 should be adopted as the standard for this rule. This would give the benefit of harmonisation and also allows greater operational flexibility, particularly when operating in the mountainous areas of the South Island. Some fixed wing operators have also advised that the raising of the altitude at which oxygen is required will assist them greatly in avoiding areas of known icing conditions that commonly exist in the 8000 to 10 000 foot heights. A 12 500 foot requirement opens up the cruising altitudes which are generally above the freezing level for use when required.

CAA response: The present requirements are based on physiological research and adopted by most States. It appears that the FAR requirements may be historically based on topography rather than physiological research. CAA cannot justify reducing the requirements without ascertaining that they do not increase the risk, and does not have the capability to do so in the short time-span for finalising this rule.

One commenter stated that paragraph (c) contradicts 91.235(6)(i) and (ii). The wording needs to be changed to allow descent to 14 000 feet or below in 4 minutes or less. The same commenter also stated that aircraft that are certificated to 25 000 feet are not usually equipped with pop outs which is the only way the paragraph can be complied with.

CAA response: CAA agrees and has amended the rule accordingly.

One commenter stated that there are no regulators on portable cylinders as suggested in paragraph (a)(2).

CAA response: CAA does not agree as in the case of portable cylinders, regulated fixed flow is a means of regulating oxygen.

The same commenter noted that the requirement remains for use of supplemental oxygen when one pilot is at a pilot station between FL 350 and 410. There is no requirement in the European Joint Aviation Requirements operating rules which simply states that above FL 250 quick donning masks will be available. If the Europeans don't require this rule what is the justification for us. This is an unnecessary requirement.

CAA response: CAA has not been able to establish the justification for the JAR requirement referred to in the time-span available for finalising this rule and the present requirements are maintained. CAA will maintain ongoing research and consideration of other standards being developed and if necessary will amend the rule at a future date.

One commenter considered that the provision in paragraph (a) should also apply to pressurised aircraft with the cabin pressure altitude within the same height band.

CAA response: CAA does not agree as the loss of pressurisation would instantly decrease the cabin pressure that could be hazardous to the occupants.

2.27 91.113   Passenger briefing [Final rule 91.211]

Three commenters considered that paragraph (b)(1) should allow for a person other than the pilot-in-command to give the passenger briefing. There are operations such as sight-seeing when the pilot-in-command cannot brief the passengers and it would be more effective if a briefing was given by another person prior to the flight.

CAA response: CAA agrees and has included such a provision in the rule.

Two commenters considered that paragraph (b)(1) should state that "the pilot-in-command is responsible for ensuring the passenger briefing".

One commenter reasoned that the means of briefing should be left for the pilot-in-command to decide.

CAA response: CAA does not agree as it considers that this requirement equally applies to the operator as well as the pilot-in-command. For compliance in larger aircraft, the operator may be required to establish procedures to determine which crew member does the briefing, and the means to be used, followed by confirmation to the pilot-in-command that this has been done.

One commenter stated that the paragraph is too prescriptive and is restrictive on single-pilot operations where there is no crewmember or electronic presentation available.

CAA response: This rule covers all aircraft regardless of their size and crew numbers. The reference to using the likes of recorded presentation is in terms that they may be used and does not mandate their use for any aircraft.

One commenter considered that the statement required under paragraph (b)(4) is very general and a more specific statement is required to set a more general standard.

CAA response: The CAA considers that the rule is quite specific and does not consider that any further guidance is required for operators and flight crew.

Two commenters considered that the demonstration on the use of lifejackets under paragraph (b)(2) should be if required as lifejackets are not carried on all flights.

CAA response: CAA agrees and has amended the rule accordingly.

One commenter considered that the briefing on ditching procedures under (a)(5) should only be required when liferafts are carried.

CAA response: CAA does not agree as this briefing is required for flights over water even if a life-raft is not being carried.

The same commenter stated that, when the emergency oxygen is carried in a portable bottle, a demonstration is not practicable.

CAA response: The rule is amended to only require demonstration for flights above flight level 250. If portable bottles are the means of providing emergency oxygen above flight level 250, the CAA considers that a demonstration is imperative for the safety of the passengers in the event of loss of pressurisation.

One commenter stated that emergency equipment included the likes of axes, first aid equipment, and fire extinguishers. It is not practical to include such items under (5)(ii).

CAA response: CAA agrees and has amended the rule accordingly.

One commenter stated that briefing and demonstration on the use of oxygen should not be required for flights below 25 000 feet as these aircraft are not equipped with pop-out oxygen masks.

CAA response: CAA agrees and has amended the rule accordingly.

One commenter considered that paragraph (a)(4) should not require the operator to show the location of items such as, contents of liferafts and survival kits, megaphones, axes and fire extinguishers.

CAA response: CAA does not agree but for clarity has amended the rule to refer only to the location of survival and emergency equipment for passenger use.

2.28 91.115   Carry on baggage [Final rule 91.213]

Three commenters asked what is classed as baggage, what is the difference between baggage and cargo, and are these terms going to be defined.

CAA response: CAA agrees that these terms need to be defined. The definitions, based on the ICAO definitions will be included in Part 1.

One commenter considered that this requirement would be difficult to comply with in helicopters and small aircraft. The commenter suggested that that reference to "under a passenger seat in paragraph (2) should be deleted.

CAA response: CAA does not agree as this requirement is to maintain the integrity of unimpeded passenger egress in an emergency situation.

One commenter suggested that the rule should also address the carriage of dangerous goods.

CAA response: CAA does not agree as the requirements for the carriage of dangerous goods are prescribed in Part 92.

2.29 91.117   Carriage of cargo [Final rule 91.215]

Two commenters considered that the rule should include a provision for the carriage of dangerous goods.

CAA response: CAA does not agree as the requirements for the carriage of dangerous goods are prescribed in Part 92.

One commenter is concerned that the rule implies that cargo may not now be carried on passenger seats. Some operators have specially designed seat pods which can be adequately restrained. The rule should clarify the situation to permit cargo carriage on such seats.

One commenter considered that the rule should allow the carriage of cargo and baggage on or under seats and that paragraph (b)(1) appears to authorise such carriage.

CAA response: The rule is amended for the carriage of cargo on passenger seats.

One commenter suggested that paragraph (a)(2)(i) infers that each item has to be secured by a safety belt. The rule should reflect that nets and the like are used in bulk compartments.

CAA response: CAA does not agree as the rule refers to seat belts or other restraining devices and the latter will include the likes of nets used in cargo compartments.

One commenter considered that cargo should be permitted to be carried in an overhead bin normally use for passenger baggage provided the various limits of the bin are met.

CAA response: The rule allows the use of cargo racks or bins for the carriage of cargo and this can include the use of over-head lockers within the limitations for their use.

2.30 91.119   Pre-flight action [Final rule 91.217]

One commenter suggested that the paragraph (6) should include heliports.

CAA response: By definition, aerodrome includes heliports and is therefore included in the rule.

One commenter considered that the rule should include "load assessment" as loading affects weight and balance and performance.

CAA response: CAA does not agree as this requirement is contained elsewhere requiring operation in compliance with the operating limitations specified in the flight manual.

One commenter suggested that pre-flight action should also include the following:

  1. any applicable aeronautical information as advised by AIS NOTAMS; and
  2. maintenance status of the aircraft including any defects being carried under the despatch deviation guide; and
  3. company briefing notes applicable to that flight.

CAA response: Items 1 and 2 are covered elsewhere in Part 91. Item 3 is not applicable to Part 91 operations but is a requirement for certificated air transport operators.

One commenter suggested that the words "status of" should be inserted at the beginning of paragraph (5).

CAA response: CAA agrees and has amended the rule accordingly.

One commenter stated that such information, particularly current meteorological and aerodrome information, is not available for every destination. The commenter recommends that the rule should contain the words "where possible".

CAA response: CAA agrees and has inserted the words where practicable in paragraph (1).

One commenter considered that before beginning a flight a pilot must become familiar with the types of airspace and the rules and responsibilities within the airspace expected to be encountered en-route. The commenter provided a suggested draft rule to cover this.

CAA response: CAA agrees that this is necessary. It is addressed elsewhere in Part 91.

2.31 91.121   Familiarity with operating limitations and emergency equipment [Final rule 91.219]

One commenter considered that an exception is required for the likes of hang-gliders and parapents from the carriage of emergency checklists.

CAA response: Exceptions to this requirement are contained in the applicable operating rule for this activity.

2.32 91.123   Flying equipment and operating information [Final rule 91.221]

One commenter asked what is the significance of the engine inoperative data for multi-engine aircraft. Do we mean accelerate-stop and why do we ignore the likes of engine-inoperative for single-engine aircraft and helicopter autorotation.

CAA response: CAA has deleted this item as it is information contained in the aircraft flight manual which also contains the other information referred to by the commenter. An earlier rule requires compliance with the flight manual and therefore implies familiarity with this information.

One commenter stated that the carriage of charts is totally irrelevant for local flights and the words "appropriate" in (a)(2) should be preceded with the words "where possible".

CAA response: CAA does not agree as the word appropriate means that if aeronautical charts are not relevant to the flight they are not required to be carried and thus the pilot not required to be familiar with them.

One commenter stated that the reference to a means of indicating the time is somewhat loose. They suggest that the reference should be made to ensure accuracy to be able to indicate the time in UTC and to plus or minus seconds accuracy.

CAA response: Not all aircraft are required to be equipped with a means of indicating the time. In the context of this rule this requirement can be fulfilled by the likes of a wrist watch and accuracy is a matter to be determined by the pilot-in-command. Inclusion of a means of indicating the time in UTC in the rule is not agreed. The pilot-in-command is responsible for converting time to UTC when required and the means of conversion is one to be determined by the pilot-in-command.

One commenter suggested that "and associated appropriate navigation equipment" be added to (a)(2).

CAA response: This requirement is prescribed in Subpart F Instruments and Equipment Requirement.

One commenter stated that the weight passenger break of 5700 kg or nine passengers should be amended to 5700 kg or 20 passengers. A seating of nine passengers is applicable to an aircraft of approximately 2500 - 3000 kg.

CAA response: CAA does not agree as both the weight-break and passenger numbers are relevant to this requirement in terms of potential risk.

One commenter considered that, as written, it requires a means of indicating time at each pilot station. This requirement was originally stated in 91.207 and it should be returned to that rule and (a)(1) deleted.

CAA response: Not all aircraft are required to be equipped with a means of indicating the time. In the context of this rule this requirement can be fulfilled by the likes of a wrist watch. The requirement for an aircraft to be equipped with a means of indicating the time in 91.207(a)(1) is maintained in Subpart F Instruments and Equipment Requirements.

2.33 91.125   Operating on and in the vicinity of an aerodrome [Final rule 91.223]

One commenter stated that: "I have misgivings about the value of ground markings such as in Figure 1. It is my belief that pilots are trained to look out and around, not so much down, that unless specifically looking for a ground signal would not actually see one and generally by the time a ground signal is observed it is too late. Appropriate use of radio, charts and NOTAMS would achieve more".

CAA response: CAA does not agree as it is not always practical for advice to be given by radio, charts, or NOTAMS that such activity is being conducted.

Another commenter stated that all aerodromes should be left-hand circuit with the provision for exceptions.

CAA response: This rule does specify left-hand traffic circuits at all aerodromes that are promulgated in the AIP. Exceptions to this rule are contained in Part 93.

One commenter was concerned that the rule did not address the traffic pattern at aerodromes not promulgated in the AIP. The traffic pattern should be prescribed for such aerodromes that are regularly used or used by a number of aircraft on some occasions.

CAA response: The traffic circuit may be in any direction at aerodromes not promulgated in the AIP but the principal requirement to conform with, or avoid, the aerodrome traffic circuit formed by other aircraft applies. There are numerous aerodromes not listed in the AIP the majority have a single runway and little used, or principally used by one operator. The use of right-hand traffic circuits are not uncommon at these aerodromes because of terrain or climatic conditions and may vary from day to day. CAA considers that it is not practical to specify the traffic circuit direction at these aerodromes and is satisfied that safety is not compromised at such aerodromes.

One commenter stated that as drafted the rule requires a circuit to be flown unless otherwise instructed by ATC. The current situation where a straight-in approach or joining on base leg may be flown at an aerodrome where there is no ATC must be allowed to continue.

CAA response: The rule, as written, does not differ from the present requirements prescribed under the Civil Aviation Regulations 1953. Straight-in approaches or joining on base leg can be done with the proviso that they conform with the aerodrome traffic circuit formed by other aircraft.

One commenter considered that provision should be made available for operation other than in the designated circuit direction where safety or good aviation practice dictates. This would be when there is no conflict with other aerodrome traffic.

CAA response: The CAA does not agree. At aerodromes without ATC in attendance, there can be no assurance that there is no conflict with other aircraft.

2.34 91.127   Operations at aerodromes with air traffic services [Final rule 91.225]

One commenter stated that in (a)(2)(i) the reference to an "air traffic zone" is incorrect. It is preferable to use the term "aerodrome traffic circuit" in this paragraph.

CAA response: CAA agrees and has deleted the requirement for a clearance prior to entering an air traffic zone.

2.35 91.129   Operating near other aircraft [Final rule 91.227]

One commenter considered that there should be some reference to the need for pilots who carry out formation flying to be qualified, authorised, and briefed on formation flying.

CAA response: CAA does not agree to place a requirement for a qualification, authorisation or briefing in this rule. The requirement for prior arrangement is deemed to be adequate in this rule.

One commenter considered that for this rule to be effective formation flights must be defined, otherwise it can be argued that a flight of up to 100 or 200 metres from another aircraft is formation flight.

One commenter stated that there should also be some reference to minimum lateral spacing.

CAA response: CAA agrees to the suggestion of a minimum lateral spacing and has added a definition for formation flight which specifies minimum distances.

One commenter considered that there should be an exception for gliders to cover the situation of gliders flying in close proximity to each other, especially when thermalling.

CAA response: Any exception to this rule will be contained in Part 104, Operation of Gliders and Powered Gliders.

One commenter asks if there will be a definition of the term "hire or reward".

CAA response: The term "hire or reward" has a long legislative history and has already received significant judicial attention in transport related case-law. It is preferable therefore to leave the definition to the Courts. The essential elements of the term are:

  • "Hire" has been determined to mean compensation for carriage.
  • The addition of the term "reward" is intended to include situations where there is no obligation to pay but payment is made, and to ensure that any form of valuable consideration is included in the meaning of hire.

Whether an operation is for hire or reward is to be determined on the particular facts of each case.

One commenter stated that formation flying whilst parachuting is a fairly common occurrence. The aircraft involved could be operating for hire or reward and an exception is required for this type of operation.

CAA response: CAA agrees and the rule now has such an exception.

2.36 91.131   Right of way rules [Final rule 91.229]

One commenter stated that whilst the parachutist is exempted from the requirements of Part 91, there is no provision made explicitly for persons operating aircraft to give way to persons using a parachute. It is important from a safety point of view that parachutes be given right of way as they have extremely limited performance or capability to avoid collision. The commenter suggested that the rule should be amended requiring aircraft to give way to parachutes.

CAA response: CAA agrees and has included this provision in the rule.

One commenter suggested that the rule should address take-off and landings at aerodromes where the operation of the aircraft is not restricted to prepared runways.

CAA response: CAA does not agree and considers that the rule as written is adequate in these circumstances.

2.37 91.139   Aircraft speed [Final rule 91.237]

One commenter said that their understanding is that the speed restriction is a requirement under FAR 91 but believe it should adopt a more reasonable basis in New Zealand. As collision avoidance appears to be the only reason for the speed limit, the commenter suggests that it should only apply to aircraft with four or more passenger seats. The commenter reasons that any fast aircraft with less than four passenger seats is certain to be fully aerobatic and extremely manoeuvrable and able to avoid collision. A blanket speed restriction, when applied to high performance aircraft, will result in a degradation of flight safety which would not arise if a system based on the ability of an aircraft to manoeuvre was adopted.

One commenter suggested that if the minimum safe speed for any particular operation is greater than 250 knots the aircraft may be operated at that minimum speed.

CAA response: CAA does not agree with the premise that the ability to manoeuvre all high-speed aircraft is necessarily affected by this speed restriction. The safety of some high-speed aircraft may be affected by the speed restriction and the rule has been amended to allow such aircraft to fly at a greater speed as prescribed in the aircraft flight manual. The speed restriction is specified for safety and the CAA believes that the only exception should be for aircraft that are required to maintain a greater speed by the flight manual and aircraft participating at aviation events.

One commenter suggested that reference to speed not being restricted at an aviation event is open to misinterpretation. They considered that in paragraph (b)(2) the words "and the activity has been approved by the Director" should be added.

CAA response: CAA does not agree to add these words as the requirements for aviation events, including the required approvals, are prescribed in Subpart H Special Flight Operations.

2.38 91.141   Altimeter settings [Final rule 91.239]

One commenter stated that they have not been able to ascertain the rationale behind this change to the transition level and it appears to be a case of change for changes sake.

One other commenter asked why change and if any change is required then we should standardise with the FAA and use 18 000 feet.

One commenter stated that the current system is established such that there will always be a minimum of 1000 feet between aircraft using 11 000 feet AMSL and an aircraft using the lowest available flight level. However, when the QNH is above 1013 hPa the difference between the transition altitude and the lowest useable flight level is well in excess of the minimum required. In the interest of the efficient use of available airspace a review of this situation is in order. The rule as written states that an aircraft can operate within the transition layer as instructed by ATC. The present transition layer is such that the vertical separation between aircraft at the transition altitude and an aircraft at the lowest available flight level will be from 1000 feet to nearly 3000 feet depending on the area QNH. This can be excessive at times but does achieve the safety goal. This draft rule infers that within the transition layer an aircraft can be cruising, as instructed by ATC, with reference to QNH or QNE (1013.2 hPa) depending on what separation requirement is in place. This would be confusing and not error tolerant to both pilots and ATC, and would not be permissible within AIRCAT (current radar system). Whatever the rules are to be for the use of the level within the transition layer, they must be published for pilots advice as well and it is important that they know in advance if FL140 is available. After having researched the procedures in place in Australia, USA, Canada, and the UK, the rule could implement a similar system to that in Australia since the procedures are not dissimilar to our current procedures. The procedures permit the use of an additional 1000 feet of altitude subject to QNH restriction and they ensure vertical separation between the transition altitude and the lowest available flight level. The Australian system is such that the "thickness" of the transition level is 1000 foot less than what we currently use, and the lowest available flight level is effected by further QNH definition. The commenter proposes that the Australian system be adopted in this Part.

CAA response: CAA has reviewed the rule in terms of any benefits accruing from changes to the transition altitude. The Australian system was considered and referred for comment to a number of organisations. In the final analysis, CAA determined that there is no identifiable benefit accruing from a change to the present requirements and therefore has decided to maintain them. CAA will be conducting ongoing studies to determine if changes are required to improve airspace utilisation and this issue will in no doubt be revisited.

Two commenters stated that the use of QFE within an aerodrome circuit is not supported. One of the commenters stated that aircraft operating on QFE could be at an appreciable different height from any aircraft operating on QNH. The other commenter stated that there are many documented cases of accidents directly attributable to confusion between QNH and QFE altimeter settings.

CAA response: CAA agrees and has deleted all reference to the use of QFE.

2.39 91.143   Compliance with ATC clearances and instructions [Final rule 91.241]

Two commenters suggested that the provision in (b) should be extended to violation of any rule made under this and any other Part.

CAA response: CAA does not agree to extend this provision to other rule Parts. Each individual Part will have corresponding infringement regulations to deal with non-compliance with an individual rule and therefore it is not necessary to duplicate compliance in Part 91.

One commenter considered that the rule as written is unnecessarily convoluted and provided a possible draft rule for consideration

CAA response: CAA agrees and the rule has been amended for clarity.

2.40 91.147   Operations in classified airspace [Final rule 91.245]

One commenter considered that (d) should be applicable to IFR and to VFR at all times not just night. They reason that this is required to have VFR traffic on the appropriate frequency in Class E airspace.

One commenter suggested that VFR aircraft should in (d) be required to advise entry to Class E airspace with intentions and position reports.

CAA response: This issue is to be addressed in Part 71 designation of airspace as any change to this requirement will impact on a number of other rules. If there is such a change, amendment to this rule would be generated in conjunction with the change.

One commenter considered that the full ICAO classification of airspace should be included by adding Class B and F airspace. Class B airspace is where separation between IFR and VFR is given, and Class F airspace is where all flights receive an advisory service. Both classifications could be used in the future and in this level of documentation should be include at the onset,

CAA response: CAA does not agree, as the inclusion of other classes of airspace, when such classes do not exist in New Zealand, could be confusing. If a new class of airspace is introduced in the future, this rule would be amended to include it.

2.41 91.149   Use of SSR transponder and altitude reporting equipment [Final rule 91.247]

One commenter suggested that code allocation is not an appropriate detail to be published in a rule. Although allocation of emergency codes is unlikely to change, the day-by-day use of codes may change from time to time and needs some flexibility. If a discreet code is assigned, it will not be necessary to also comply with a standard code drawn from a table and the rule should reflect this. The commenter suggests that Table 2 should be deleted and replaced by a statement in the rule to say "set the transponder in accordance with the standard SSR Airspace Codes specified in the NZAIP".

CAA response: CAA does not agree as the rule makes a provision for ATC to assign other codes. CAA believes that any proposed changes to the standard codes contained in Tables 2 and 3 should be the subject of the rule making process to allow industry input.

One commenter considered that SSR code setting requirements for formation flights should be addressed suggesting that the requirement be specified in the NZAIP.

CAA response: CAA agrees that formation flight should be addressed in the rule but not with the suggestion that it be specified in the AIP.

One commenter considered that the request period of 30 minutes for operation of an aircraft without SSR should be in an Advisory Circular as good advice.

CAA response: CAA does not agree as there must be some criteria for the time period for ATC consideration though in practice the actual ATC response period may be less.

One commenter considered that exemption should be provided for gliders from operating Code C. They stated that it is a current understanding gliders will be required to transmit mode A only.

CAA response: The rule does state that Mode C is only required if the aircraft is equipped with the equipment. The issue as to whether gliders should be equipped with it is addressed in Subpart F ­ Instruments and Equipment Requirements.

2.42 91.249   Aircraft callsigns [Final rule 91.249]

CAA comment: CAA became aware that this requirement presently prescribed in the AIP should have been included in the NPRM. The requirements are based on the ICAO standards which have been adopted by most States. As there is no change to the present requirements prescribed in the AIP, CAA consider that this rule can be included as a final rule in Part 91.

2.43 91.151   Fuel requirements for flight in VFR conditions [Final rule 91.305]

One commenter considered that this is not a flight rule and should be relocated to Subpart B.

CAA response: CAA does not agree as this is a specific flight rule applicable to VFR operations.

Four commenters asked the basis for the different requirements between reciprocating-engine powered aeroplanes and turbine-engine powered aeroplanes. They considered that there is no basis for this difference and one commenter noted that the equivalent rule in FAR Part 91 specified the same fuel requirements to all aeroplanes. Two of the commenters considered that that 30 minutes fuel reserve is adequate for all aeroplanes. One of the commenters suggested that the fuel reserve should be 30 minutes for day flights and 45 minutes for night flights.

CAA response: CAA agrees that their is no rationale for the different requirements between reciprocating engine powered aeroplanes and turbine powered aeroplanes and most States do not have this difference in their legislation. On this basis the rule is amended to require fuel as specified in FAR 91.

One commenter considered that the helicopter fuel reserve should be increased to 30 minutes for flight greater than 20 minutes stating that a 20 minute fuel reserve on an air transport flight is nowhere near enough.

CAA response: CAA does not agree as Part 135 specifies other factors that have to be taken into account when calculating the minimum fuel for the flight for air transport operations.

One commenter stated that (b)(2) should be deleted, referring to an article in the New Zealand Flight Safety FSS-95-2 dated 1 March 1995.

CAA response: CAA does not agree as the article was about fuel management and did not mention, nor consider, that the fuel reserve was an element of the occurrence referred to.

One commenter considered that (b)(2) as written seems to require a flight of 15 minutes to have 30 minutes fuel reserve as being twice the anticipated flight time. The intention appears to require a fuel reserve equal to the planned flight time.

CAA response: CAA agrees and has amended the rule accordingly.

2.44 91.153   VFR flight plan [Final rule 91.307]

Five commenters considered that the requirement in (c) of submitting the flight plan 30 minutes prior to the flight is not needed. One commenter stated that it is too restrictive and could deter some pilots from filing flight plans at all and negate the present practice of filing a flight plan in flight in appropriate circumstances. One commenter asked what is gained by this, as, if ATC cannot accept the flight plan in a shorter period they will say so. One commenter stated that, except in cases where a special clearance is needed, there is no practical reason for the 30 minute notice. One commenter considered that the 30 minute period was advisory material and is unnecessary where the flight plan is often passed by radio to ATC.

CAA response: CAA agrees with these comments and has removed the requirement.

Seven commenters considered that the rule should provide for abbreviated flight plans and the ability to flight plan by radio when airborne.

CAA response: The reduced requirement for submitting a flight plan makes the provision for abbreviated and in flight planning unnecessary.

Three commenters considered that there should not be a requirement to submit a flight plan for local flights. One commenter stated that the requirement is not appropriate at aerodromes with ATC or ATS in attendance as the use of radio provides the appropriate advice. One commenter reasoned that the requirement is not appropriate for flights purely local in character particularly those of a local training nature.

Another commenter considered it to be necessary to refer to a limited information flight plan to be used for the purpose of obtaining a clearance for a departure or arrival at a controlled aerodrome or for a flight through a portion of controlled airspace.

CAA response: CAA has reviewed the requirement to submit a flight plan for flights in controlled airspace and concluded that the flight plan did not serve any useful purpose in this context. The requirement for flight in controlled airspace is an ATC clearance and the flight plan is not relevant or necessary for the granting of ATC clearances for VFR flight. On this basis, the rule is amended to only require the submission of a VFR flight plan for flights proceeding more than 50 nm from shore and whenever the pilot-in-command requires an alerting service.

One commenter considered that the requirement to submit a flight plan for flights more than 50 nm from shore is unnecessary. Such a flight is not going to affect ATC and it is the operator's decision as to the level of flight following they wish to carry, and who they wish to provide the service.

CAA response: CAA does not agree. The State has a function of providing an alerting service for the purposes of search and rescue (SAR) should an aircraft become overdue. The requirement for a flight plan for flights proceeding more than 50 nm from shore is considered necessary for the provision of an effective SAR service particularly in terms of cost. The SAR service is not a charge to the operator and flight plan details assist any SAR action and minimise the cost because of the information available. A flight that proceeds without a flight plan is also the subject of SAR when advice is received that the aircraft is overdue and the absence of flight plan information would be detrimental to the conduct of any search.

One commenter considered that many of the requirements in (d) are not relevant to the flight planning process. All that is required in a VFR flight plan is basic information to assist ATC in provision of an ATC service as in (d)(1), (3), (4), (6) and (8).

CAA response: CAA agrees that item (d)(5) is not relevant for VFR flights but does not agree to delete the other items. The provision of SAR service is addressed in the previous response and the items considered not relevant to ATC by the commenter are relevant information for any SAR action.

One commenter considered that the requirement to provide the number of people on board should only apply to aircraft with a seating capacity of more than 6 passengers and air transport operations. The commenter reasons that this requirement is solely for rescue-fire purposes and it is self evident how many are aboard this category of light aircraft.

CAA response: CAA does not agree as this information is relevant for SAR purposes.

One commenter suggested that the requirement under (f) of terminating the flight plan will require expansion in an advisory circular.

CAA response: The administrative details for compliance with this requirement will be contained in the NZAIP.

2.45 91.155   Position reports [Final 91.309]

One commenter considered that position reports should be required for aircraft operating on a flight plan. The commenter states that those of us who value our lives will still file flight plans for Search and Rescue purposes when flying outside controlled airspace.

CAA response: For other than flights proceeding more than 50 nm from shore the filing of a flight plan is voluntary for the purpose of providing an alerting service. CAA considers that position reports have the same voluntary status for flights outside controlled airspace. As pointed out by this commenter, prudent pilots will take advantage of the alerting service and provide position reports to enhance the effectiveness of any SAR action in the event of a mishap.

2.46 91.157   VFR meteorological minima [Final rule 91.301]

One commenter believes that the requirements of FAR 91.155 should be adopted for operations in New Zealand and submits a suggested wording and Table based on this rule. One of the critical components of the table is the distance from cloud requirement in Class G airspace below 1200 feet during daylight. The proposed requirement to have sight of the surface needs to be removed. Cases arise where low cloud exists below 1200 feet which obscures the surface but can safely be flown across. This is not a safety issue and is consistent with the FAR.

CAA response: This proposal is a major departure from the NPRM requirements. CAA has been unable, in the time-span available for developing the final rule, to ascertain the basis for the FAR rule or the impact it might have on safety and considers that wider consultation would be needed to consider its adoption. The FAR rule is complex and as such compliance with the requirements might be difficult. On this basis, CAA does not agree to adopt the FAR requirements though it is a matter that could be pursued in the future.

One commenter said that the VFR table of minima allows aircraft to operate to lesser minima outside the hours of aerodrome control by day. Logic would suggest that the lower minima should be reserved for the controlled situation.

CAA response: The logic is that there is a greater density of traffic at controlled aerodromes and though VFR flights are provided with ATC clearances and sequenced in the circuit, pilots are still responsible for compliance with the rules of the air to avoid collisions.

One commenter considered that all pilots should be aware of the reduced vertical minima from cloud that has been authorised for glider pilots in Part 104. As it is possible that not all pilots will have detailed knowledge of Part 104 this provision should be in this rule.

CAA response: CAA does not agree. The AIP will contain this as information for all pilots.

The helicopter requirements, outside controlled airspace, seem to be unspecified in terms of absolute minimum cloud base and visibility. Provided the helicopter manoeuvres at a reduced speed it seems anything goes, including hover taxiing in fog. The current minimum visibility of 1500 metres is barely enough to enable a pilot to see and avoid obstacles. 1000 metres is officially "fog" and all that you can do in fog is hover taxi. This relaxation will bring about an upsurge in controlled flight into terrain accidents if is brought in. At the moment only experienced rescue pilots operating under Regulation 35 provisions fly in these conditions.

CAA response: This requirement is the same as presently prescribed in CASO 1 and is not therefore a relaxation. CAA has no basis to amend this requirement and does not agree with this comment.

One commenter stated that no mention is made of emergency situations or the situations covered in Regulation 38(a)(b), and (d) and noted that emergencies are included in 91.175.

CAA response: An exception for emergency situations is not provided as there is a provision in the Act for non-compliance with the rules in such a situation.

2.47 91.159   Special VFR weather minima [Final rule 91.303]

One commenter considered that the reference to a cloud ceiling requirement of 600 feet in this rule is in their view unnecessary given that (3) requires the pilot-in-command to remain clear of clouds. The commenter requests that an amendment be made to (4) to require aeroplanes to operate clear of cloud with visibility of at least 1500 metres. Consequently an amendment should be made to (5) to permit the operation of helicopters clear of cloud and with visibility of less than 1500 metres if the helicopter is operated at a speed that will give adequate opportunity to observe other traffic or any obstructions in order to avoid collisions.

CAA response: CAA considers that the requirement for a 600 foot cloud ceiling is necessary for the safety of aircraft and this also ensures compliance with the prescribed minimum safe altitudes. CAA agrees with the reduction in ceiling and visibility for helicopters and has incorporated the CASO1 requirements in the rule.

One commenter stated that the rule allows routine operations for helicopters at any altitude. Currently a special VFR clearance does not absolve a pilot from the requirements of Regulation 38. However, the new requirements will enable entry into a control zone by helicopters at any altitude and the commenter does not agree with this lawless regime for helicopters.

CAA response: This requirement is the same as presently prescribed in CASO 1 and is not therefore a new requirement. CAA has no basis to amend this requirement and does not agree with this comment.

2.48 91.161   Minimum altitudes for VFR flights [Final rule 91.311]

Three commenters considered that there should not be any height limitation for flights in designated low flying areas.

One of the commenters stated that often simulated landings are practised in low flying areas, with no intention of landing, and breaking them off at 200 feet is ridiculous. Likewise, bad weather flying practice is best performed in low flying areas, and such height restriction makes such practice ineffective. The commenter strongly support the limitation as in (4) for this.

Two of the commenters considered that there should be no height limitation for helicopter flight training in low flying areas. Low flying techniques are an important part of helicopter flight training and in the past most helicopter instructors have carried out low flying flight training, which includes underslung load training, within designated low flying areas.

CAA response: CAA agrees with these comments and has removed the height restriction for the use of low flying areas. The 200 foot limitation does restrict the effectiveness of some training exercises in low flying areas and the minimum height is one that should be determined by the flying instructor.

One commenter stated that it is essential that this rule be amended to directly model both the wording and intent of FAR 91.119. The FAR rule has been in place for a long time, has been subject to numerous challenges through the petition process, and has stood the test of time. With over 10 000 rotorcraft the USA is undoubtedly the home of the civil helicopter and FAR 91.119 has proven workable for operators and demonstrated an excellent level of safety.

CAA response: The final rule is similar to FAR 91.119 with the exception that the minimum height over any congested area of a city, town, or settlement, or over any open air assembly of persons is also applicable to helicopters. CAA does not agree to a relaxation over congested areas as provision for lower heights for operations that need to operate at such heights are specified in the appropriate rule Parts such as Part 137.

Three commenters stated that (a)(4) as written is confusing and the words "but not" should be deleted.

CAA response: CAA agrees and has amended the rule to avoid any confusion.

Three commenters considered that the rule does not provide for the conduct of low level operations such as, topdressing, stock spotting, survey, and patrols. They consider that the rule should allow such operations to be flown below the minimum safe altitudes.

CAA response: Minimum safe heights for agricultural operations are contained in Part 137. CAA agrees that provision is needed for flight at lower heights for other operations described by the commenter and the final rule contains such a provision. This provision is in paragraph (c) refers to bona fide purpose for the likes of the operations referred to.

Three commenters considered that the rule should have the same provision as currently in Regulation 38 which provides an exception through stress of weather encountered en-route.

CAA response: There is a provision in the Act applicable to emergency situations which would include stress of weather and CAA does not believe that a carte blanche exception should be provided in this rule.

One commenter considered that (a)(4) should include flight over the sea.

CAA response: CAA agrees and the final rule has been amended to extend this provision for flight over water.

One commenter considered that throughout the rule the term "altitude" means "height". Height is defined with reference to the surface feature whilst altitude is defined in relation to mean sea level. The term "height" is therefore more appropriate in the context of this rule.

CAA response: CAA agrees and the word height is used in the final rule.

Two commenters expressed their concern about the provisions in (a)(4). One commenter has the opinion that this provision is a licence for any pilot of any experience or ability to low fly. Not only is the pilot given carte blanche approval to low fly, but is given the approval to carry out this operation in an environment which is widely understood to present its own special hazards to the unwary, or inexperienced, even in a normal flight regime. With absolutely no constraints on when, why, or to a large degree, how the pilot carries out this operation, and we are left with very serious doubts as to the wisdom of this sanction. If such an operation is required for training, resource survey, deer recovery, and the likes, then this needs to be clearly spelt out and, if necessary, general or specific approval sought.

The other commenter stated that with only the general guidelines in (c), we could expect to have helicopters hover taxiing past our homes only 500 feet away horizontally, and in 100 metres visibility. There are elements in the industry who would do just that, bringing the entire industry into disrepute. The commenter doubts whether the Resource Management Act allows the CAA to relax the minimum altitude rules to this extent without consulting the entire community. The NZ helicopter industry would soon find itself legislated out of business if it was party to such irresponsible low flying rules as those proposed in this rule.

CAA response: The final rule has been amended by removing the so called carte blanche provision for flights below 500 feet. There is a need for flight below 500 feet to effectively conduct some operations and the final rule refers to flights that have bona fide purposes. The types of operations requiring flight at low altitudes are too numerous and diverse to list as an option to bona fide purposes in the rule.

One commenter considered that it will be necessary to define congested and sparsely populated areas for this rule to have any effect.

CAA response: The use of "sparsely populated areas" is not used in the final rule. CAA has inserted a definition of congested area to aid interpretation of this term.

One commenter considered that the horizontal distances in (a)(2) and (3) should be expressed in metres.

CAA response: CAA does not agree. In terms of distances which have to be determined by a pilot in flight, aeronautical navigation charts are in nautical miles and feet and thus nautical miles or feet are used for distances prescribed in the rules required to be determined in flight.

One commenter considered that the rule should provide an exception for the operation of microlight flying boats over water in ground effect.

CAA response: CAA does not agree as any exception applicable to microlight aircraft will be contained in Part 103, Operation of Microlight Aircraft.

One commenter considered that an exception should be provided for gliders which anticipate or are preparing for an outlanding. Gliders may appropriately be operating in the vicinity of "2 or more buildings" if these are close to the most suitable area for a potential landing.

CAA response: CAA does not agree as any exception applicable to gliders will be contained in Part 104, Operation of Gliders and Powered Gliders.

2.49 91.163   VFR cruising altitude and flight level [Final rule 91.313]

One commenter stated that the flight level in (b)(2) should be 160 not 140 to maintain the thickness of the transition layer.

CAA response: The error is noted but as previously explained in response to earlier comments the final rule is amended to maintain the requirements as presently prescribes in CASO 1.

2.50 91.165   Minimum flight crew [Final rule 91.401]

Two commenters stated that the provision permitting single pilot operations without a co-pilot or an auto-pilot, if the flight manual so authorises, is a retrograde step from a safety point of view. One commenter stated that single-pilot IFR operations with an auto-pilot is a demanding enough a task for the inexperienced. To remove the safety feature of the auto-pilot for single-pilot IFR operations will undoubtedly increase the accident and incident rates.

CAA response: CAA does not agree that this is a retrograde step as most States allow single-pilot IFR operations in an aircraft not equipped with an auto-pilot. The present requirement for an auto-pilot was prescribed during the embryonic stage of IFR operations by general aviation aircraft in this country and has been restrictive and costly to operators. There is no evidence to suggest that this will affect safety. CAA believes that the decision to equip an aircraft with an auto-pilot is that of the operator.

One commenter considered that to specify a headset and boom microphone is considered to be over-specific. A more generic term needs to be used to allow for new technology to be used when it eventuates. The commenter suggested that (2) should read "the aircraft is equipped with operational communication equipment that is capable of hands free operation at all times".

CAA response: CAA agrees and has used a more generic term in the final rule.

One commenter considered that the rule as written conflicts with flight manual information and should state that the minimum pilots carried should be one or as specified in the aircraft flight manual.

CAA response: The rule refers to the aircraft flight manual requirements and CAA does not agree that there is a conflict.

One commenter supported the rule, provided present aircraft operating IFR single-pilot will not have to pay for achieving such authorisation.

CAA response: This comment is obscure as the rule does not require authorisation and therefore the matter of cost is not relevant.

One commenter considers that single-pilot IFR operations should require roll control and heading hold for aircraft under 5700 kg MCTOW. This requirement would enhance the safety of the flight and develop the pilot skills for operating air transport aircraft.

CAA response: CAA does not agree to mandate an auto-pilot for this purpose. This is a customer related requirement for any training organisation and a decision they have to make.

2.51 91.167   Fuel requirements for IFR flights [Final rule 91.403]

One commenter stated that this is an important, and unjustified, change in terminology from FAR 91.167 which refers to "flight in IFR conditions".

CAA response: CAA does not agree. While CAA has decided to incorporate the FAR legislative framework this does not mean that it will also adopt each rule within the framework. FAR 91.167 was considered along with similar rules of other States and the ICAO standard. There is no positive safety benefit identified with the FAR rule but there is a possible negative safety value as the rule relies on the flight being conducted in VFR conditions. On this basis the final rule refers to IFR flights.

One commenter stated that as with 91.151 we question the split in the fuel requirements between piston and turbine powered aeroplanes. We suggest that the standard of FAR 91.167 should be adopted at 45 minutes for aeroplanes and 30 minutes for helicopters.

One commenter stated that they have a problem understanding the reasons why turbine powered aircraft carry less fuel reserves. If it is because they on average are faster therefore can fly further, then the criteria should be normal cruising speed not the engine type.

CAA response: CAA does not agree to increase the reserve fuel for turbine powered aircraft as it would add considerable cost to the operator and there is no reason to suggest that 30 minutes is inadequate for turbine powered aircraft. This has not been a safety issue and CAA has no justification to consider this change.

One commenter considered that the notification of traffic fuel advisories with possible delays at times of congestion at certain aerodromes needs to be inferred in this rule.

CAA response: CAA does not agree as, if adopted, it would allow ATC to mandate fuel to be carried in aircraft. It is proper for ATC to give advice of traffic delays but the operator should determine the fuel requirements based on this advice.

2.52 91.169   ATC clearance [Final rule 91.405]

One commenter suggested that the words "before operating in controlled airspace" should be added at the end of the rule.

CAA response: CAA has removed this rule as this requirement is included in 91.245. The wording of 91.245 incorporates the commenter's suggstion.

2.53 91.171   IFR flight plan alternate aerodrome requirement [Final rule 91.405]

One commenter considered that the current visibility requirement should be retained as the proposed visibility requirement is excessive.

Four commenters considered that the proposed visibility in (a)(2)(ii) of 5000 metres more than the IFR minima is a significant increase over the present requirement of 5000 metres visibility. The four commenters considered that the present requirement of 5000 metres visibility should be maintained.

One commenter expressed disappointment that the visibility in (a)(2)(ii) has been increased to 5000 metres from the 4000 metres proposed in the informal draft.

CAA response: CAA agrees and has amended the rule as suggested to require a visibility of 5000 metres.

Two commenters submitted amendments to paragraph (a) to improve the meaning.

CAA response: CAA considered the submissions and has amended the wording of the rule to improve the meaning.

One commenter suggested that the rule should allow a VFR alternate aerodrome to be nominated for an IFR flight provided current weather reports and forecasts show that the alternate aerodrome weather will be cloud absent visibility unlimited (CAVU) at time of arrival.

CAA response: CAA does not agree with this suggestion as the weather at the alternate aerodrome is not relevant provided that it is at or above alternate minima. A pilot has the option of cancelling IFR and proceeding VFR to the alternate in these circumstances but CAA considers that a planned VFR diversion is not acceptable as the amount of reserve fuel at the alternate could very well be compromised.

One commenter stated that the visibility in (b)9(2)(ii) does not provide sufficient margin above the non-precision approach visibility. It should state a visibility of 4000 metres or 2000 metres more than that specified for the procedure whichever is the greater.

CAA response: CAA agrees that the rule provides insufficient margin and has amended the final rule as suggested though reducing the suggested 2000 metres to 1500 metres

One commenter asked should not (a) refer to the last aerodrome of intended landing, and what is the purpose of it as it essentially reads?

CAA response: The rule has been amended by replacing in (a)(1) the words first aerodrome of intended landing with the aerodrome of intended landing. The purpose of this provision is to ensure that if required an alternate is provided for each aerodrome of intended landing.

One commenter considered that (a)(2) is ambiguous as it says as long as there is an hour or more of better than 1000 feet ceiling above the instrument approach minima before estimated time of arrival is acceptable but the commenter does not think that this is as intended. The use of the word least is superfluous.

CAA response: CAA considers that the rule is not ambiguous and in the absence of similar comments has not amended the final rule.

One commenter stated that, in reference to (b), an unfiled alternate is not much use regardless of the weather at the alternate because you will not get any weather updates, and in the event of some types of equipment failure ATC will not know where you are going.

CAA response: CAA has some difficulty with the reference to an unfiled alternate. This rule prescribes when an alternate is required and a previous rule requires an alternate aerodrome to be nominated in the flight plan.

One commenter asked how does the pilot navigate to this alternate aerodrome, who is giving information on the current weather, is the aerodrome an attended aerodrome. The current requirement does not allow an unattended aerodrome to be nominated as an IFR alternate.

CAA response: For IFR the aircraft is required to be equipped with navigation equipment to navigate in accordance with the flight plan. The navigation requirements are the same for IFR regardless of whether proceeding to a destination or an alternate aerodrome. The matter of determining the weather at the alternate aerodrome is one to be established by the pilot before and during the flight. The current requirement does not prohibit the use of unattended aerodromes, though additional requirements are placed on air transport operations.

One commenter states that there are doubts about the integrity of the future application of (b)(3).

CAA response: This is a current provision and has been in use for a number of years without cause for concern.

2.54 91.173   IFR flight plan information required [Final rule 91.407]

One commenter considered that an exception is required for IFR flights that are purely local in character and mostly for training purposes only.

CAA response: The rule provides for ATC to accept lesser information and local procedures could be established for an abbreviated flight plan.

One commenter considered that the requirement to specify fuel endurance, persons on board, and survival equipment are of no benefit to ATC in handling an IFR flight plan. These requirements should be removed from this rule.

CAA response: As explained previously in response to similar comment about these items for the VFR flight plan, these items are relevant to the alerting service and any consequential SAR action.

One commenter stated that there is no reason for the requirement to submit a flight plan at least 30 minutes prior to the beginning of the flight.

CAA response: This period is required for ATC to enter the details in their system which will provide some surety that an IFR clearance will be available at the time of flight.

2.55 91.177   Inadvertent change of flight plan [Final rule 91.411]

One commenter considered that (1)(ii) should read "...or any variation of 0.01 or more...".

CAA response: CAA agrees and the final rule is amended accordingly.

2.56 91.179   Take-off and landing under IFR [Final rule 91.413]

One commenter stated that (f)(2) would seem to allow reduced visibility take-off regardless of the aircraft and aerodrome equipment.

CAA response: CAA agrees, in terms of the aerodrome, and the final rule is amended to say that the reduced minima must be authorised under Part 97. This will ensure that the runway is properly equipped and that any obstructions in the take-off flight path are taken into account. The present authorisation does not restrict aircraft other than by requiring additional equipment for two-engine propeller-driven aeroplanes and this is incorporated in the final rule.

One commenter stated that (g) does not include the requirement for the aircraft to be equipped with operative auto-coarsening or auto-feathering and this should be required. The commenter also believes that the term "RVR" is incorrect and the term should be "visibility".

CAA response: CAA agrees with these comments and the final rule is amended accordingly.

One commenter stated that DA is not defined.

CAA response: DA is included as an abbreviation in the final rule.

One commenter stated that the ICAO PANS OPS Doc 8168 and Annex 14 criteria recommends a 300 metre base line for departure fans of runways authorising 750 metre RVR for take-off. At present this criteria is only met at the Auckland and Christchurch aerodromes and this minima should not be authorised at other aerodromes.

CAA response: CAA agrees and applies ICAO PANS OPS criteria for the basis of authorising reduced take-off minima. Reduced take-off minima from certain runways are currently authorised under CASO 1 on the basis that these runways meet the criteria. CAA will be conducting a review of IFR procedures for the development of other rule Parts and this aspect will be included.

One commenter suggested that (e) should read "...shall immediately execute the appropriate..."

CAA response: CAA agrees and has amended the rule accordingly.

One commenter suggested that with the advent of GPS, allowance needs to be made for instrument approaches specified in Company documentation.

CAA response: CAA does not agree as GPS instrument approach procedures will be prescribed under Part 97 and as such need not be documented in company documentation.

One commenter suggested that while Part 121 provides for company minima to be specified there is no reason why a Part 91 operator should not have minima specific to the operation, perhaps approved by the Director.

CAA response: CAA does not agree as the minima for Part 91 operations will be that specified under Part 97. There is no reason for the rule to make a further provision for the Director to approve other minima.

One commenter stated that the specification of DA, DH, or MDA by the Director is in conflict with ICAO requirements and should be replaced with specified obstacle clearance altitudes. There should be an Advisory Circular providing for commonly used minima to allow for the unsophisticated operator to develop applicable DA, DH, or MDA.

CAA response: CAA agrees with this comment and intends to address this issue in other rule Parts being developed.

2.57 91.181   Operating in icing conditions [Final rule 91.421]

Three commenters suggested that (a)(1) should also apply to VFR operations.

CAA response: CAA agrees and has included these requirements in the VFR rules.

2.58 91.183   Minimum altitudes for IFR flights [Final rule 91.423]

One commenter stated that the minimum safe altitude with respect to terrain is known to air traffic control, and a clearance will not be issued below this altitude, it is quite likely that the minimum altitude with respect to navigation aid reception may not be known, particularly in the event of satellite navigation system being available or in use on the aircraft.

CAA response: This issue will be addressed in the development of Part 95, IFR Altitudes.

One commenter noted that the horizontal distances are given in nautical miles in other rules and for uniformity this rule should use the same measurement.

CAA response: CAA agrees and in the final rule the distances are in nautical miles.

One commenter considered that (2)(i) and (ii) are deficient as they take no account of navigation tolerance applicable to VOR and NDB and will not provide sufficient separation from terrain. It is essential that the current navigation tolerances be retained with whatever buffers are applied (if any under these rules).

CAA response: CAA does not agree as these values are for flights without prescribed minimum safe heights, and navigation tolerance is not a factor in this instance. This criteria is adopted by most States, in the JAR operating rules, and are the ICAO standard.

2.59 91.185   IFR cruising altitudes or flight level [Final rule 91.425]

Two commenters drew attention to errors in the draft rule.

CAA response: The errors are acknowledged and corrected in the final rule.

2.60 91.187   IFR radio communications [Final rule 91.427]

One commenter stated that, currently, reporting at designated reporting points in a secondary radar environment is not required. The rule as written does not appear to address it.

CAA response: CAA agrees and has amended the final rule accordingly.

2.61 91.189   IFR operations ­ two-way radio communications failure [Final rule 91.429]

One commenter suggested a new paragraph to read "endeavour to establish communications by any alternative means possible". The commenter reasoned that their suggested amendment makes provision for use of such devices as cellphones if needs be and should be incorporated on the basis that some communication is better than none at all.

CAA response: CAA considers that this should not be in the rule as the alternative means is not deemed to be secure reliable equipment for continued two-way communication and their use could cause further uncertainty and confusion.

One commenter considered that reference should be made to use the SSR transponder facility if possible and provided a suggested amendment.

CAA response: The use of the SSR transponder is addressed in another rule and does not need repeating in this rule.

One commenter stated that consultation has taken place in recent months and with industry and the CAA with respect to level restrictions and radio communication failure. The commenter provided a suggested amendment which reflect the result of the consultation and amendments in hand to existing documents with respect to emergency procedures.

CAA response: CAA is satisfied that the suggested amendment was referred to and agreed to by representatives of the aviation industry and has incorporated them in the final rule.

2.62 91.191   Category II and III precision approach procedures [Final rule 91.415]

One commenter stated that he cannot find anything in the Act, Part III, which would allow the Director or the Minister to authorise Category II and III approaches with a specified piece of equipment inoperative in such critical operations. Because the Category's minima and equipment requirements are interlinked, nay interlocked, any absence or malfunctioning of items in the criteria invalidates the operation. The commenter considers that the provisions in (f) are equally invalid.

CAA response: The Act does not limit the Minister's rule making powers in this respect. The overall goal of rules must be safety orientated and this will be taken into account by imposing conditions and limitations on the operation. This rule is modelled on the FAR rule which has been in force for a number of years and any authorisation with inoperative equipment would have attached conditions and limitations taking into account the effect of the inoperative equipment.

2.63 91.193   Category II precision approach procedure manual [Final rule 91.417]

One commenter asks why identify a manual? The operations manual should cover this. It is simply just another procedure. The pilot has a set of procedures for the operation of the aircraft and these procedures should be in one location not split out into separate manuals.

CAA response: The operations manual is a requirement for air transport operations not for Part 91 operations. The final rule is amended to state that this is not a requirement for operations conducted by the holder of an air operator certificate issued under Part 119 which does away with separate manuals for such operations.

One commenter asks if the manual should not also be required for Category III approaches.

Another commenter believes that the manual and 91.195 should include Category III approaches.

CAA response: The final rule is amended to require a Category III precision approach procedure manual.

2.64 91.195   Approval of Category II precision approach procedure manual[Final rule 91.419]

One commenter considered that a rule similar to FAR 91.193 needs to be added in this rule. This is required to permit authorisation of smaller aircraft for Category II operations under Part 91. Such approvals are becoming more common in the USA and will no doubt be sought here in the future.

CAA response: The rule does not preclude small aircraft from performing such an approach. CAA will give further consideration to the issue and if necessary propose a rule amendment at a future date.

One commenter stated that the requirements in (d) is an increase on current requirements where the system is functionally tested during recency requirements for the aircraft and the crew.

CAA response: CAA does not agree as the rule does not preclude the functional flight test being conducted in conjunction with recency requirements for the aircraft and the crew.

2.65 91.431   Notification of facility malfunctions

CAA comment: This rule is to ensure that the holder of a certificate issued under Part 171, Aeronautical Telecommunication Service Organisations can take corrective actions and submit a facility malfunction report in compliance with Part 12, Accidents and Incidents. The same rule is contained in FAR Part 91 for the same reasons.

2.66 91.201   General requirements [Final rule 91.501]

Two commenters noted that the reference to 91.233 in (a) is incorrect and should be 91.237.

CAA response: The numbering of the final rules are changed and the reference is now correct.

2.67 91.202   Location of instruments and equipment [Final rule 91.503]

One commenter is concerned that this requirement should not be extended to include transponders in gliders. Gliders may have pre-set mounted transponders that will either transmit on code 1300 or on an identified pre-set code. The remote mounting still requires that the on-off selection switches be operable by the pilot but the code select switches are not operable in flight.

CAA response: The rule does not preclude the use of this equipment as the only operable item needed is the on-off switch which has to be readily seen and operated from the pilot position.

2.68 91.203   Seating and restraints [Final rule 91.505]

One commenter asked "what about children under 3 and infants who do not require a seat at present? This arrangement works well providing adequate safety and cost savings for the travelling public. Notwithstanding the above a person who is 3 (2) years of age or less may be held by an adult who is occupying a seat or berth. Two children whose combined weight does not exceed 77 kg and who can be safely secured by the safety belt or safety harness may occupy one seat or berth."

One commenter stated that there is a need to allow for the carriage of infants on an adult's lap with the appropriate restraint as is currently allowed.

One commenter noted that in its present wording this makes no provision for infants.

CAA response: CAA agrees that children under the age of 4 years do not require a separate seat or berth if sharing with an adult and have amended 91.109 (now 91.207) to this effect. This rule addresses the requirement to provide seating and restraints for aircraft for each person on board the aircraft. An exception is now incorporated for children under the age of 4.

One commenter, in relation to (f)(now 91.505(a)(4)(ii)), stated that probably all our members take flight training in their aircraft occasionally, if only in the form of a BFR every two years. Whilst the inclusion of this paragraph to aircraft principally engaged in flight training may have some validity, a blanket requirement does not. If the sentiment expressed in this paragraph can be supported to aircraft principally engaged in flight training, then it should be amended by adding "when principally engaged in flight training". Otherwise it should be deleted.

CAA response: CAA does not agree as the statement when principally engaged in flight training is not specific and open to wide interpretation. This is the present requirement and CAA sees no safety justification for reducing this requirement.

Two commenters considered that hot air balloons should be excepted from the requirements of this rule.

CAA response: CAA agrees and has amended the final rule accordingly.

One commenter stated that this rule contradicted 91.109 which exempts parachutists from wearing restraints. This rule should provide an exception for aircraft used for parachute operations in accordance with Part 105.

CAA response: The final rule has been amended to remove the contradiction.

2.69 91.207   Minimum instruments and equipment [Final rule 91.509]

The addendum proposing to require each aircraft in paragraph (a) to be equipped with a means of automatically recording and accumulating the time from each take-off until each landing attracted a number of submissions.

In general the majority of submissions, for and against, recognised the need to have hours recorded accurately.

The comments received were –

  1. five submissions supporting the requirement; and
  2. eight submissions expressing qualified support for the requirement; and
  3. eight submissions that did not support the requirement.

The submissions of qualified support expressed concerns that the application of the requirement to either the larger aircraft types or to the operators of larger fleets such as aero clubs was unnecessary and that the aircraft or operator's systems were adequate to ensure correct hour recording.

The commenters that did not support the proposal based their statements on –

  1. insufficient or no cost benefit analysis to show the need; and
  2. no safety advantage; and
  3. no requirement until a full equipment specification available; and
  4. no such thing as a tamper-proof system; and
  5. how can it be enforced; and
  6. the use of other methods, such as tachometers currently used, should be acceptable.

CAA response: The CAA agrees with the general industry comments that the recording of time is a requirement. The recording of accurate time is the basis for maintenance requirements in the aviation industry. The emphasis on time recording has been highlighted by the suspected un-approved parts investigations being carried out by the CAA and reinforces the requirement that these hours be recorded accurately.

Tamper-proof time recording devices do not in and of themselves prevent incorrect time recording. The devices provide a tool for the CAA to provide safety related information to industry, and more importantly, the devices provide a direct tool for an operator to manage their aircraft, possibly more efficiently, definitely more effectively.

The requirement for all aircraft to be fitted with the devices ensures that there is a level playing field for all operators and this should encourage appropriate competition in the industry.

The CAA agrees there is no economically viable, absolutely tamper-proof, time-recording device. The New Zealand prototype viewed, two other New Zealand design researched, and an Federal Aviation Administration supplemental type certificate for a tamper proof meter, indicate that systems are available that accurately record hours and discourage tampering by defaulting to a faster accrual of hours.

The CAA disagrees, however, with the assertion that the benefit gained does not exceed the cost of fitting these meters. The costs involved in the provision of a suitable system were examined from the unit, installation, and out-of-service costs involved. In summary­

  1. the unit costs are anticipated to be minimal and greatly outweighed by those advantages an operator could derive from the accurate recording of the flying hours for maintenance purposes:
  2. depending on the type of design meeting the proposed New Zealand Technical Standard Order the installation costs will vary but the example viewed by the CAA had a reasonably straight forward installation process:
  3. because of the potentially simple installation, out-of-service costs can be minimised also.

The subsequent savings by the CAA in its ongoing regulatory tasks are substantial, although the CAA will have to ensure it has appropriate procedures in place to ensure the benefits are realised. These savings are passed directly onto the industry by making the regulatory actions of the CAA more efficient and allowing some of the costs previously allocated to lengthy investigations to be used for other purposes.

The CAA agrees that a specification should be provided for industry to begin developing the required devices. Unfortunately limited CAA resources have prevented development of a New Zealand Technical Standard Order until after the rules re-write has been completed. The provision of the requirement in the final rule provides for the completion of the rule and reduces the future workload in the development and introduction of the NZTSO as the requirement already exists.

The CAA agrees with those comments by the larger aircraft operators and those operators of aircraft without finite-life components and has amended the rule accordingly.

One commenter considered that paragraph (14) would be better worded as follows "that the electrical system(s) is(are) functioning correctly".

CAA response: The final rule is amended using words similar to this comment.

2.70 91.209   VFR instruments and equipment night [Final rule 91.511]

One commenter stated that helicopters are currently allowed to fly cross-country (beyond 25 nm) and CASO 20 attempted to prescribe sensible minimum instrumentation for this. However, in the printing, CASO 20 paragraph 3.4.1.3. wrongly referred to lesser instrument fit in 3.4.1.2 instead of 3.4.1.1. Somewhere in Part 91 or Part 135, there should be a minimum instrumentation list as there is in CASO 20 for night VFR flight.

CAA response: CAA does not agree as the additional equipment referred to in CASO 20 for commercial operations are not applicable to Part 91 operations. Additional instruments and equipment for air transport operations are prescribed under Part 135.

CAA comment: A means of indicating rate of turn and slip was prescribed for IFR flight in the NPRM. It is presently prescribed under CASO 9 for VFR night flights and on this basis the requirement is now placed in this rule.

2.71 91.211   IFR instruments and equipment [Final rule 91.517]

One commenter stated that aircraft such as the Saab 340 are not equipped with, nor do they require, a turn indicator. It would serve no useful purpose to retrofit such a device.

CAA response: CAA took this comment into account and found that FAR part 91 has a provision that aircraft with a third attitude instrument indicator that is usable through 360¡ of pitch and roll does not need to be equipped with a means of indicating turn. This same provision is now included in the final rule.

One commenter stated that they can see no reason for the requirements in (b) in an airline environment.

CAA response: CAA has concluded that paragraph (b) is not valid and has been deleted in the final rule. This requirement, if applicable, is prescribed under the aircraft certification rules rather than as an operational requirement.

One commenter requested that in (a)(5) the words "and calibrated in not less than 50 foot increments" should be added.

CAA response: This is not required in this rule as this is the standard prescribed in Appendix A of this Part.

One commenter suggested that (a)(1) should read "rate of turn and slip or skid".

CAA response: CAA does not agree as the terminology used throughout the rule Parts refers to turn and slip.

One commenter suggested that (a)(4) should include "inertial reference system".

CAA response: CAA does not agree as this is equally valid for an inertial reference system.

2.72 91.213   Category II precision approach procedure [Final rule 91.521]

One commenter asked does (a)(10) meet current ICAO requirements or is a DME or GPS a satisfactory alternative to a marker beacon?

CAA response: Paragraph (a)(10) is in accordance with the ICAO standards and at this time DME or GPS are not an alternative to a marker beacon.

2.73 91.215   Emergency equipment [Final rule 91.523]

One commenter questioned the reason for the 1500 kg weight break in (a). The commenter suggested that a 19 passenger break be used for this requirement, if in fact there is justification for this archaic requirement. Other forms of passenger transport this size do not have such stringent requirements and the commenter doubts the need for it in aircraft in excess of 1500 kg MCTOW not even air transport aircraft. This section should be in Part 26 as it seems to impinge on occupant safety, which seems to be the criteria.

CAA response: CAA agrees that the 1500 kg weight break is not valid and has adopted the FAR 91 requirement applicable to aircraft having a certificated seating capacity, excluding any pilot seat, of 10 seats or more. CAA does not agree that this requirement should be in Part 26 as this is an operational requirement and is rightly located in Part 91. Part 26 only prescribes instruments and equipment applicable to aeroplane certification.

One commenter noted that there is no mention of approval in (a)(1) and asks is this an option.

CAA response: The requirement for this and other equipment is that they must meet the applicable standard specified in Appendix A of this Part.

One commenter believes that the MCTOW should be less to include most light aircraft.

CAA response: CAA does not agree nor do other commenters. CAA believes that the relevant factor is the number of persons being carried and has based the rule on this premise.

One commenter referring to (d) asks how do you clearly indicate the method of operation of an axe?

CAA response: CAA agrees and has deleted this from the final rule.

2.74 91.217   Flights over water [Final rule 91.525]

Three commenters noted that (a)(4) referred to a non-existent (b)(2).

CAA response: The final rule has been amended with reference to the correct paragraph.

One commenter stated that the number of ELTs required to be carried will increase as at present only two ELTs are required. This is added cost with minimal increase in safety.

CAA response: CAA agrees and has amended the rule in accordance with the present requirement.

One commenter stated that the requirements for safety equipment detailed for helicopters in CASO 20 seem to have been lost. Helicopters descend rapidly in autorotation and do not float for long. This gives the passengers little time to find stowed jackets and to don them. Without pop-out floats it is unlikely that anyone other than crewmembers would escape from a ditched helicopter. There is no reference to pop-out floats, or immersion suits in their absence. The commenter believes that a stowed lifejacket is insufficient equipment out to 100 nm from land in a single-engine helicopter. New Zealand, unlike the UK, does not have a fully integrated SAR system with rescue vehicles covering the country and the coastline.

CAA response: The requirements prescribed under CASO 20 are applicable to commercial operations. The requirements of this rule relate to the present requirements prescribed for operations that are equivalent to those to be conducted under Part 91.

One commenter considered that multi-engine aircraft not capable of continuing flight with one or more engines inoperative should be tied to a requirement similar to (a)(1).

CAA response: CAA agrees and has amended the final rule accordingly.

2.75 91.223   Radio and navigation equipment for IFR overwater operations [Final rule 91.519]

One commenter stated that the rule is modelled on FAR 91.511 which only applies to large aircraft. The commenter does not object to the rule covering all aircraft but considers it essential for the rule to be amended. The FAR and the informal draft CAR Part 91 made provision for aircraft with two VHF radios to only have to carry one HF radio and this should be the case in the final rule. It is also unreasonable to expect light aircraft to be equipped with two independent electronic navigation sets. This requirement has been removed from large aircraft in the USA and it would be an inappropriate requirement for New Zealand operators.

One commenter consider the requirement for two HF radios is impractical for light aircraft.

Another commenter asked why the increase of requiring two HF radios for oceanic IFR operations. The commenter reasoned that provided operations are conducted below 10 000 feet there is no danger to international commercial traffic through the loss of HF communications as communication can be established when in VHF range.

CAA response: CAA agrees with theses comments and has deleted the requirement to have two independent communication equipment. The final rule does not distinguish between IFR and IFR overwater operations on the basis that the equipment requirement is the same for both cases.

One commenter considered that communication should be defined as either voice or data.

CAA response: The rule does not preclude the use of communication by data. CAA is conducting an on-going study of this equipment and in due course anticipates that the specification of such equipment will be included in Appendix A of this Part.

One commenter stated that with the reliability of GPS units, the addition of a second GPS unit would not provide any increase in the reliability of navigation. This principle has been applied to ground based DME units where again duplication provides no increase in reliability.

CAA response: The requirements for the use and the standards for GPS equipment under IFR are presently being developed and will be promulgated as an NPRM for comments. Any required amendment to this rule will be included in the NPRM.

2.76 91.225   Aircraft communication equipment [Final rule 513]

One commenter stated that this rule does not allow for NORDO flights and is apparently in conflict with 91.127(a)(1).

CAA response: CAA agrees and has made provision for NORDO flights in the final rule.

2.77 91.227   Aircraft navigation equipment [Final rule 91.519]

One commenter stated that the terms VSM and RVSM are not defined.

CAA response: These two terms are now included in the definitions.

One commenter stated that it would appear that the rule would require two autopilots and two altitude alerts.

CAA response: The final rule is amended to remove the requirement for two auto-pilots and two altitude alerts.

One commenter considered that in (c), the words "or VSM" should be deleted.

CAA response: The final rule is restructured and the word VSM in this rule is used in its proper context.

2.78 91.229   Emergency locator transmitter [Final rule 91.529]

One commenter stated that presently balloons are not required to carry an ELT and they should be included in the exceptions to this rule.

CAA response: CAA does not agree as the requirement to carry this equipment to assist any SAR action is as valid for balloons as it is for other aircraft. Some balloons can carry more than 10 passengers and in the event of an emergency, and given that their flight path may be difficult to predict, an ELT would be invaluable in locating the balloon.

One commenter expressed a view that gliders should not be excepted from carrying ELT. There have been a number of long visual searches for crashed gliders that would have been shortened considerably if the gliders were equipped with ELT. They are not expensive, they weigh very little, and require little maintenance. If it is important for every other aircraft to carry ELT then a glider should as well.

CAA response: CAA agrees and the final rule requires gliders to be equipped with an ELT as from 1 April 1998.

One commenter considered that (b)(2) should read "manufacturers recommended battery life".

CAA response: CAA agrees and has amended the rule accordingly. This paragraph addresses the maintenance of ELT's and as such is relocated to Subpart G - Maintenance in the final rule.

One commenter supported the requirement for ELT but considered that single-seat aircraft should be excepted from the requirement as they are presently. The commenter's understanding is that the exception for single-seat aircraft was on the basis that if an individual wishes to accept the risk, he should be entitled to do so as there are no passengers for the risk.

CAA response: CAA does not agree as SAR action is conducted once it becomes known that any aircraft is overdue and this includes single-seat aircraft. As stated previously in response to other comments the purpose of the ELT is for the conduct of effective SAR. The absence of an ELT can make the location of a crashed aircraft difficult resulting in delay providing succour to any injured occupants and involve considerable increased expenditure for the State.

One commenter considered that provision should be made to permit aircraft to fly normal operations for short periods of time without ELTs. Not all areas have equipment capable of testing these items and failure, requiring repair, will occur. To ground an aircraft during these times is unreasonable and spares for every type of unit is not realistic. A compromise where a carry-on portable unit be permitted during these times would be reasonable.

CAA response: CAA does not agree as it would be unreasonable not to provide this equipment for the benefit of the occupants in the event of an emergency.

2.79 91.231   Oxygen [Final rule 91.531]

One commenter stated that this rule and 91.233 and 91.235 are obviously based on FAR Part 121 and are not appropriate in a Part 91 environment. Oxygen requirements for Part 91 operations are adequately covered in 91.111 and hence 91.231. 91.233, and 91.235 should be removed entirely.

CAA response: CAA does not agree in that that the proposed rule 91.111 prescribed the use of oxygen and this rule and the following two rules prescribe equipment and oxygen requirements for compliance with 91.111.

Three commenters stated that there is a contradiction between this rule and 91.233. This rule requires oxygen above 10 000 feet while 91.233 only requires oxygen for flights in excess of 30 minutes between 10 000 and 13 000 feet AMSL.

They suggested that the words "for more than 30 minutes" should be added to the rule.

CAA response: CAA agrees and the final rule is amended accordingly.

One commenter stated that the passenger "drop down" systems usually do not have an indicator of the amount of oxygen available but does have flow indicators in the mask inlet tubing. The requirement for indicating the amount of oxygen available in (1)(i) should be deleted.

CAA response: The final rule is amended making this requirement applicable to flight crew equipment only.

2.80 91.235   Oxygen for pressurised aircraft [Final rule 91.535]

One commenter considered that after (a)(5)(ii) the word should be "or" not "and".

CAA response: CAA agrees and the final rule is amended accordingly.

One commenter stated that the requirement in (d)(2)(ii) for two outlets in washrooms is not, we understand, a certification requirement and should be deleted. Most, if not all, business-type jets would be unable to comply with this. Whilst we have not investigated this in depth, we believe the requirements of this rule do not match up with aircraft certification requirements and this aspect should be investigated.

CAA response: CAA agrees and the requirement for two oxygen outlets in washrooms is not required in the final rule.

One commenter stated that the demand mask plus goggles serves both the functions of (a)(1) and (ii) at present.

CAA response: The rule does not preclude the use of a demand mask plus goggles for compliance with this rule.

One commenter stated, with reference to (a)(3), that, currently, protective breathing equipment is required for each fire extinguisher that is carried in the aircraft.

CAA response: CAA reviewed the oxygen requirements to ensure that they are compatible with the aircraft certification requirements under Part 21 which incorporates FAR Part 23 and 25. The requirements of (a)(3) are compatible with the aircraft certification standards and therefore adopted in this rule. Any departure from the aircraft certification standards would incur additional expenditure for the operators of New Zealand without an identified safety benefit.

One commenter considered that the words "each aircraft with a pressurised cabin that is to be operated at altitudes..." used in this rule are incorrect and should read "each aircraft, with a pressurised cabin, that is to be operated at altitudes".

CAA response: CAA agrees and the final rule is amended accordingly.

2.81 91.237   Inoperative instruments and equipment [Final rule 91.537]

One commenter considered that the restriction on operations under (c) to gliders and single-engine aircraft under 2730 kg MCTOW is not practical, has no safety benefit, and is inconsistent with FAR 91.213. Any aircraft should be able to operate without an MEL in accordance with (c) provided the requirements are met. For example, take a Piper Navajo, about 3500 kg MCTOW and two engines without an MEL. The aircraft has an unserviceable ADF and the pilot wishes to fly VFR from Auckland to Ardmore. The aircraft cannot legally move until all items are serviceable. You would be extremely unlikely to find an aircraft in this country that isn't carrying a minor defect of some description, most of us have some form of recording and advising other pilots or engineers of these items. We have the technical log for recording defects so let people record them and make the appropriate maintenance decisions based on the circumstances.

CAA response: CAA agrees and has amended the final rule to allow aircraft that do not exceed 5700 kg MCTOW to be operated without an MEL.

One commenter stated that (b) effectively prohibits the use of MEL. For example, when weather radar is required, the rule precludes flight with it inoperative. The rule must allow the use of an approved MEL even if the equipment is required by type certification or Parts 91, 121, or 135.

One commenter stated that it is very difficult to determine whether there are any differences between this proposed rule and the current requirements. Currently they can release an aircraft on the MEL with unserviceable weather radar provided there is no ice or rain forecasted but does not appear to be the case under (b).

One commenter suggested that allowance should be made for operation without weather radar under the MEL where provision is made for operation until such time as the aircraft is passing through a base where the weather radar can be repaired.

CAA response: CAA agrees with the comments and has amended the final rule to allow for items of equipment in the MEL similar to those presently authorised.

One commenter stated that it appears in this day and age to be unnecessary to have a rule specifying the minimum equipment of an aircraft. Aircraft are built under specific certification and minimum equipment lists specify the minimum that can be carried. It is suggested that this rule be updated to meet the current certification.

CAA response: CAA does not agree that this is the case as, in addition to the aircraft certification requirements, Part 91 prescribes instruments and equipment for operational requirements. The MEL addresses the instruments and equipment required for specific operations under Part 91 stating items that can be inoperative for certain types of operations.

CAA comment: Commenters should note that NPRM 91.237 has been separated into two rules which is to clearly identify the two different requirements of the MEL specification versus the requirements for approval.

2.82 91.239   SSR transponder and altitude reporting equipment [Final rule 91.541]

One commenter considered that the exception in (b) that permits gliders and balloons to operate without Mode C should be removed. We are sharing the same airspace and deserve the protection of all aircraft having Mode C equipment. An altitude encoder is not heavy, doesn't use much power, requires very little maintenance, and is not expensive. This is a matter of safety for all airspace users and should be acted upon accordingly.

CAA response: CAA agrees and the final rule will require gliders and balloons to be so equipped as of 1 April 1998.

2.83 91.241   Weather radar [Not included in the final rule]

One commenter stated that this requirement is not contained within FAR 91 and is not appropriate in this country either. If should be included in Parts 121 and 135 as appropriate. Many aircraft over 5700 kg would not be able to have the weather radar fitted.

CAA response: CAA agrees and has amended the rule accordingly.

Two commenters suggested that the rule should refer to turbine-engine powered aircraft to be consistent with the terminology used elsewhere in this Part.

CAA response: These comments are not now relevant as the requirement for weather radar is not required in the final rule.

2.84 91.243   Ground proximity warning system [Not included in the final rule]

One commenter stated that this requirement is not contained in FAR Part 91. It is not appropriate for Part 91 operations and should be contained in Part 121 and 135.

CAA response: CAA agrees and this requirement is not included in the final rule.

Three commenters considered that, with the spurious warnings obtained with GPWS in New Zealand, the requirement should be only for turbojet powered aircraft. The Canadian legislation is more appropriate to New Zealand as it only requires GPWS for turbojet aircraft due to spurious warnings experienced by turbine-engine aircraft.

One commenter stated that accidents which involve controlled flight into terrain still occur with aircraft fitted with GPWS. Statistics on light twin commuter aircraft with seating capacity of 10 to 30 seats indicates that fitment of GPWS would not appreciably effect the safety of this type of operation in New Zealand.

One commenter considered that the weight-passenger-break in (b) should be amended to read a certificated seating capacity of more than 20 passengers to be in accord with the weight of 5700 kgs.

CAA response: This requirement is not included in the final rule for Part 91 operations and therefore there is no response to these comments.

2.85 91.245   Altitude alerting system or device turbojet powered aircraft [Final rule 91.543]

One commenter suggested that (b) needs to be amended to exempt restricted category aircraft, and VFR-only aircraft, from the requirements to carry this equipment. Aircraft like the Venom and Vampire would not physically be able to have this equipment installed.

CAA response: CAA agrees and the final rule contains an exception for any aeroplane that has an airworthiness certificate issued in the restricted or special category.

One commenter considered that the rule should include turbo-fan aircraft as the definition of turbojet does not include turbofan.

CAA response: CAA agrees and has amended the final rule accordingly.

One commenter suggested that the word "turbojet engine" should be replaced with the word "turbine-engine".

CAA response: The rule now refers to turbojet or turbofan engines for completeness. Both of these terms are now defined and used when needed throughout the rules.

2.86 91.253 General maintenance requirements [Final rule 91.603]

Three commenters thought 91.233 should read 91.237.

CAA response: The CAA agrees and has ensured the cross references are correct.

One commenter thought the wording 'at the next required inspection' should read 'in accordance with the requirements of the MEL'.

CAA response: The CAA disagrees. At the next inspection the item may still be permitted to be inoperative under 91.537 but the requirement ensures that the item is re-examined at the next inspection.

CAA comment: The CAA has amended the rule to better reflect which required inspection is being referred to.

One commenter suggested corrections for glider engineers.

CAA response: The CAA considers this to be covered by Part 104 and Part 43.

2.87 91.255 Required Inspections [Final rule 91.605]

One commenter suggested that the re-scheduling after the 10% extension should be unnecessary as the release being certified was for the next 100 hours.

CAA response: The CAA disagrees. The nominal inspection period is 100 hours and inspections would, ideally, be carried out exactly each 100 hours. The extension provision is not provided as a planning tolerance and should only be used when the nominal period has been completed. If the extension provision was intended to be a planning tolerance the rule would state 110 hours with no latitude.

One commenter stated that there was a conflict in that 91.255 says all aircraft must be inspected and AOC aircraft are not exempt in 91.251(d).

CAA response: The CAA agrees and the rule has been amended.

One commenter suggested that 91.269 should be added for consistency.

CAA response: The CAA disagrees as the annual review of airworthiness is not considered to be a maintenance function.

2.88 91.259 Radio station inspections [Final rule 91.609]

One commenter suggested that these should be 48 months for gliders.

CAA response: The CAA disagrees and the maintenance programme required under Part 104 will be required, as a minimum, to address the applicable items from Part 91. Rule 91.601 gives the specific exceptions to the Part 91 requirements for gliders.

2.89 91.261 Altimeter tests [Final rule 91.611]

One commenter suggested that the rule be reworded to talk about only altimeters with altitude reporting equipment.

CAA response: The CAA disagrees as the intent of the rule is to address all altimeters.

One commenter suggested that these should be 48 months for gliders.

CAA response: The CAA disagrees and the maintenance programme required under Part 104 will be required, as a minimum, to address the applicable items from Part 91. Rule 91.601 gives the specific exceptions to the Part 91 requirements for gliders.

2.90 91.263 SSR transponder tests [Final rule 91.613]

One commenter suggested that these are testing 'on entry to airspace'.

CAA response: The CAA disagrees. The transponders are checked for satisfactory reporting by the ATS unit on entry to the TMA but this check does not constitute the required maintenance.

One commenter suggested that the specific reference to Subpart D be put in.

CAA response: The CAA agrees but recognises that should the equipment subpart change then the maintenance subpart would also need amendment. To aid future administrative actions and reduce amendment costs the general reference has been retained.

One commenter suggested that these should be 48 months for gliders.

CAA response: The CAA disagrees and the maintenance programme required under Part 104 will be required, as a minimum, to address the applicable items from Part 91. Rule 91.601 gives the specific exceptions to the Part 91 requirements for gliders.

2.91 91.265 ELT tests [Final rule 91.615]

One commenter suggested that the checking should be left up to the operator 'if they are unsure of the performance' or, alternatively, at battery changes.

CAA response: The CAA disagrees. Under the commenter's suggestion the only instance when an operator could be unsure of the performance of an ELT would be at the time of an accident.

One commenter suggested that the specific reference to Subpart D be put in.

CAA response: The CAA agrees but recognises that should the equipment subpart change then the maintenance subpart would also need amendment. To aid future administrative actions and reduce amendment costs the general reference has been retained.

2.92 91.269   ARA [Final rule 91.619]

One commenter suggested that this was the same as the annual in 91.255.

CAA response: The CAA disagrees as the annual review of airworthiness is not considered to be a maintenance function.

2.93 91.273   Maintenance programmes [Final rule 91.621]

One commenter suggested this should be turbo-jet or turbo-fan.

CAA response: The CAA agrees and a definition of turbine-powered has been added to Part 1.

2.94 91.275   Approval of maintenance programmes [Final rule 91.623]

One commenter suggested this should be clarified in the advisory circular as to the 10% clause.

CAA response: The CAA agrees and will be providing advisory circular information on maintenance programmes.

2.95 91.281   Technical Log [Final rule 91.629]

Two commenters suggested that the contents of the Technical Log were too complex for large air transport operators and the responsibility was in fact with the operating organisation not the pilot.

CAA response: The CAA disagrees that the content is too complex for large air transport operators. The information is considered to indicate what is required for the pilot to determine the maintenance status of the aircraft. The CAA agrees that the organisation has a responsibility and this is covered by the use of the term operator, as defined in Part 1. The pilot, however, also has a degree of responsibility and this is covered in the definition of operator.

Two commenters suggested that the rule be reworded to allow other documents acceptable to the Director.

CAA response: The CAA agrees and considers that the wording of the rule allows the flexibility in the format and provision of the information in the Technical Log.

One commenter didn't want to be locked into the CAA form.

CAA response: The CAA agrees and has stipulated the contents only, not the format.

One commenter didn't want the Technical Log for private operations.

CAA response: The CAA disagrees. All pilots require the information presented in the technical log to enable them to determine the maintenance status of the aircraft.

One commenter suggested that the rule provide for the alternate means of compliance.

CAA response: The CAA agrees and has stipulated the contents only, not the format. In fixed base operations the alternative format may be other than an actual form, such as a suitable computer system providing printouts to the pilot.

One commenter suggested that the log be kept with logbooks - that is 6 months after retirement.

CAA response: The CAA agrees and the rule has been amended.

One commenter didn't want the Technical Log for private sole pilot/owner operations.

CAA response: The CAA disagrees. All pilots require the information presented in the technical log to enable them to determine the maintenance status of the aircraft. By stipulating the contents only and not the format an owner operator may use the logbook itself to record the required information. In this situation the logbook and the technical log would be the same document but the CAA cautions operators as to the carrying of aircraft logbooks in the aircraft they relate to.

One commenter didn't see the need to record time when the tacho was used and simply reading the tacho on entry to the aircraft provided the required information.

CAA response: The CAA disagrees. The tacho time is a useful aircraft usage management tool but tacho time is not considered to be maintenance time. Also, without a record of the time that is accrued, there is no assurance that the tacho is functioning correctly.

CAA comment: The technical log is required primarily for away from base operations and where the logbook is not available. Where the logbook is available to record the required information, and is available to the pilot prior to flight, then the logbook should be completed.

2.97 91.301   Aerobatic flight [Final rule 91.701]

One commenter considered that the provisions of (b) and (c) are not appropriate here and should be included in Part 61.

CAA response: CAA agrees and in response to suggestions from organisations involved in aerobatic flight will introduce an aerobatic rating under Part 61. The final rule therefore refers to an aerobatic rating issued under Part 61.

Two commenters considered that aerobatic flight should be defined in this Part or Part 1.

CAA response: CAA agrees and the definition of aerobatic flight is to be included in Part 1.

One commenter considered that (c) should include the wording in the aerobatic type certification "in aerobatic flight for the following manoeuvres".

CAA response: This comment is not now relevant with the introduction of an aerobatic rating.

One commenter considered that (a)(2) should specify a lateral distance from such areas.

CAA response: CAA agrees and the final rule prescribes a lateral distance of 2000 feet.

One commenter stated that their association would like the ability to approve "over-water" safety courses for hang gliders. The flight manoeuvres involved in these safety courses would include aerobatic flight over water and under a height of 1500 feet.

CAA response: Any exception to this rule will be addressed in Part 106, Operation of Hang Gliders.

2.98 91.303   Aviation events [Final rule 91.703]

One commenter considered that aviation events should be defined in Part 1 or Part 91 but not in the rule.

One commenter considered that it would be more logical to place the definition of aviation event at the beginning of this rule.

CAA response: CAA agrees with the first commenter and the definition of an aviation event will be included in Part 1.

One commenter noted that the FAR Part 91 permit aerobatics below an altitude of 1500 feet above the surface instead of 3000 feet required in New Zealand.

CAA response: After further consultation with aerobatic organisations, the new rule is amended to require an aerobatic rating for aerobatics below 3000 feet. CAA believes that this provision will ensure that persons conducting aerobatics below 3000 feet will be competent to do so.

One commenter considered that the definition of congested area in the legal analysis "a settlement of 2 or more buildings in an isolated area" is far too restrictive if you relate it to rural areas. We do not need to rely on US case law. The adjective "populous" defined as "thickly" inhabited" is better than "congested" which means "obstructed or blocked" in the Oxford Encyclopaedia Dictionary.

CAA response: The CAA has decided to retain the term congested area in the interests of harmonisation with the US system. A suitably flexible definition has been developed to give further guidance on the meaning of this term.

2.99 91.305   Parachute drop operations [Final rule 91.705]

One commenter considered that the rule should require procedures to ensure that aircraft propellers are stopped during parachute descents at aerodromes.

CAA response: CAA does not entirely agree as such a rule can unnecessarily disrupt the operations of other aircraft. Part 105, Parachuting Operations, introduces the requirement for parachuting landing areas (PLA). The specification for a PLA will include minimum distances for separation between any PLA and the aerodrome movement areas for the simultaneous operation of parachutes and aircraft. In the case of a PLA which do not meet the separation specifications, aircraft operations are not allowed to be conducted simultaneously with parachute drops.

Two commenters stated that (7) needs a provision for the carriage of persons who, because of operational requirements, need to be able to move about the cabin of the aircraft and therefore cannot be restrained in a seat. Typical examples would be a parachute jumpmaster who is required to dispatch students but who will not personally carry out a descent, or a film camera person who needs to film within the aircraft but cannot do so in a seat.

CAA response: CAA agrees and has amended the rule accordingly.

One commenter considered that the use of the term "emergency or reserve parachute" is very narrow. The commenter suggests the use of the term "parachute assembly" which is defined in Part 105 as being the complete set of parachute equipment.

CAA response: CAA agrees and this terminology is used in the final rule.

One commenter considered that the wording of (b)(8) is too restrictive in only requiring compliance by persons carried in the aircraft who are actually intending to carry out a descent. The wording should apply to each person carried in the aircraft during parachute operations.

CAA response: CAA agrees and has amended the final rule accordingly.

One commenter considered that the intent of (c)(1) is quite clear but a strict interpretation would not allow a change of plan whilst airborne if weather or other operational conditions required a change. The commenter suggested that the words "and adequate notice of any change of detail of the proposed descent whilst in flight" be added.

CAA response: CAA does not agree as the rule does not preclude a change of plan while airborne. This rule is to ensure that the pilot is familiar with details of the proposed descent and any change required while airborne due to climatic conditions and the like are matters which the pilot-in-command has to agree to in that capacity.

One commenter considered that the requirement under (c)(2) is too restrictive and ignores people who may be operating under a special approval by the Director. Such special approvals may be required for the transition period for Part 149 implementation or for commercial operations. The commenter suggests that the words "or has been otherwise authorised by the Director to carry out parachute descents" be added.

CAA response: CAA agrees and the final rule includes an alternative approval by the Director.

2.100 91.307   Emergency parachutes [Final rule 91.707]

One commenter stated that their association members do carry a reserve parachute (a form of parachute) in the event of an emergency in a hang glider. These reserve parachutes are made to technical standards laid down by manufacturers which are not the C-23 standards.

CAA response: This is a matter to be addressed in Part 106, Operation of Hang Gliders, as it is not the equipment referred to in this rule.

One commenter considered that the rule title should read "Emergency parachute assemblies" to more accurately reflect that an emergency parachute is a complete assembly of harness, container and parachute. The same wording should also be used in (a) instead of parachute.

CAA response: CAA agrees and this terminology is used throughout the final rule.

One commenter considered that the list of hazards under (a)(2) must be totally inclusive of all hazards to the parachute assembly and suggested that (a)(2) should read "has been adequately protected from damage especially from ultra-violet light, acid, and any other substance that may be deleterious to the materials from which the parachute assembly has been constructed".

CAA response: CAA agrees and the final rule refers to damage or condition or substance that may be harmful to the materials from which the parachute assembly has been constructed. The use of this terminology makes it all inclusive rather than list conditions which may not be complete.

One commenter considered that (c)(1) should make provision for the use of "approved type" equipment that has originated in other jurisdictions such as the Eastern block countries or China which is not manufactured under a type certificate system. The commenter suggested a more inclusive wording by adding the words "or other standard acceptable to the Director" to (c)(1).

CAA response: CAA does not agree as such parachutes must be shown to meet the prescribed specifications to ensure the integrity of the parachute assembly.

2.101 91.309   Towing gliders [Final rule 91.709]

One commenter asked is there a place for flight instructors who are current tow pilots holding a rating issued by a gliding organisation to be able to certify a person's log book for the purpose of a tow rating?

CAA response: Pilots holding a rating issued by a gliding organisation will be required to apply for the issue of a Part 61 glider tow rating. Their gliding organisation rating will be accepted for the issue of the Part 61 rating.

One commenter stated that, in accordance with the stated purpose of Part 104, the rules relating to the towing of gliders should be incorporated in Part 104.

CAA response: CAA does not agree as Part 91 is applicable to all aircraft while Part 104 is specifically applicable to gliders and powered gliders.

One commenter considered that the provisions of (b)(4) would permit every tow-pilot to create their own signals for use when towing gliders. This is not acceptable as a set of well established and internationally recognised signals are presently used and the continued use of these signals will enhance safety in the future. The commenter suggested that (b)(4) be amended to require the use of signals, as promulgated by the approved gliding association.

CAA response: CAA agrees and has amended the final rule accordingly.

2.102 91.311   Towing objects other than gliders [Final rule 91.711]

One commenter considered that there is a requirement for additional information to be included in this rule from both a safety and operational view. The commenter suggested the addition of two items as follows –

  1. the tow aircraft is equipped with an approved quick release system; and
  2. a positive en-route rate of climb with maximum continuous power is available while carrying out the tow operation. (taken from CASO 9 section 4.3.5)

CAA response: CAA agrees and has amended the final rule accordingly.

2.103 91.313   Restricted category airworthiness certificate ­ Operating limitations [Final rule 91.103]

One commenter considered that (b) should be amended to permit the carriage of non-essential persons when such persons are not carried for hire or reward. This will permit private operations in restricted category aircraft. Such a provision should not be of concern as restricted category aircraft are certified to a traceable standard where an experimental aircraft is not and thus not permitted to carry passengers.

One commenter stated that aircraft running on Mogas were issued with restricted category airworthiness certificates some years ago and this proposed rule means that such aircraft will no longer be able to carry passengers. Unless there is significant evidence that this is life threatening, that the likes of a Cessna 172 cannot carry passengers because it has a restricted airworthiness certificate, then this rule needs re-writing.

CAA response: CAA agrees and paragraph (b) is not included in the final rule.

CAA comment: This rule and the following rule about special category airworthiness certificates have been re-located to Subpart B in the final rule. CAA considered that it was appropriate to locate these rules in Subpart B for ease of reference.

One commenter suggested that (b) should read "carry any person on or in the aircraft".

CAA response: CAA does not agree as the carriage of persons is addressed in another rule.

2.104 91.351   Applicability

One commenter considered that virtually all aircraft in use in New Zealand are "foreign aircraft" in that only a few were manufactured in this country. To retain the intent of this rule, the commenter suggested that the Subpart title and this rule should refer to "foreign registered aircraft".

CAA response: CAA agrees and has amended the final rule accordingly.

2.105 91.355   Special rules for foreign aircraft operations

One commenter considered that there needs to be an Advisory Circular explanation of how the provisions of (c)(2)(ii) are going to be met.

CAA response: CAA does not agree, as in essence this is done by reference to the AIP as is the case in any other country.

One commenter considered that the provisions of (c)(1)(i) should also apply to VFR flight.

CAA response: CAA does not agree as this would be too specific for VFR operations. The requirement is intentionally broad as it covers flights in controlled airspace and in any other airspace where radio communication is required.

2.106 91.403   Noise level compliance

One commenter considered that this rule should only apply to standard category aircraft as in FAR 91.801. This will be necessary to permit some of the experimental warbird aircraft that are being considered to continue operating after the year 2002.

CAA response: CAA does not agree as it considers that this should apply to every aircraft for the protection of persons and property. The rule does not preclude the granting of an approval to operate above Mach 1 to the type of aircraft referred to by the commenter.

One commenter considered that (2) should include a provision for certification by an acceptable organisation.

CAA response: CAA does not agree as certification is a function of a state's civil aviation authority and is not extended to any other organisation.

2.107 91.405   Aircraft sonic boom

One commenter suggested an amendment to (b), lines three and four, to read "limitations which ensure that flights entering or leaving New Zealand will not cause a sonic boom to reach the surface of the earth within mainland New Zealand or immediate island territories for the prevailing meteorological conditions."

CAA response: CAA does not agree as it considers that the rule adequate as written and the Civil Aviation Act limits the applicability of the rules to New Zealand.

Appendix A – Instrument and equipment specifications

2.108 General

One commenter stated that Appendix A is completely inappropriate for Part 91.

CAA response: CAA does not agree. Appendix A contains the specifications for the equipment required under Part 91 and logically they both should be in the same rule part.

One commenter considered that the order of the equipment in the Appendix is inappropriate and suggested that the subparagraphs should be rearranged.

CAA response: Appendix A is arranged in the same sequence as the final rules and CAA considers that this is appropriate and logical.

One commenter suggested that in the first sentence, the words "or later approved versions" should be deleted as they are too non-specific.

CAA response: CAA agrees and this has been removed in the final rule.

One commenter stated that placards on aircraft have varying standards. An example is limiting speeds on UK certificated aircraft are in terms of IAS while on Canadian certificated aircraft in terms of CAS. The commenter recommends that Appendix A be used to obtain standardisation.

CAA response: CAA does not agree as the values used for aircraft certification are not significant for compliance with the flight rules. The significant issue is that the instruments and equipment provide the flight crew with the correct information for air navigation within New Zealand.

One commenter considered that (a) and (b) should include Part 26, Appendix B. The same commenter considered that Part 26, Appendices D and E should be in Part 91.

CAA response: CAA does not agree as the Appendices in Part 26 relate to equipment required under that part for aircraft certification.

2.109 Paragraph (b) [Final rule A.2]

One commenter considered that (b)(1) should also require the same for pounds and kilograms.

CAA response: CAA does not agree as the use of gallons needs to be clarified but the use of kilograms needs no further clarification.

2.110 Paragraph (h) [Final rule A.11]

One commenter considered that this paragraph should also include Category III equipment.

CAA response: CAA agrees and has amended the rule accordingly.

2.111 Paragraph (i) [Final rule A.13]

One commenter referring to (i)(4) believes methyl bromide is toxic and should not be used in cabins. The commenter asks that in (iii), equivalent to what, for what type of fire, saying that this statement is not specific enough.

CAA response: The final rule has been amended deleting reference to methyl bromide. The equivalency in (4)(iii) is in terms of extinguishing action and CAA believes that this is specific.

2.112 Paragraph (j) [Final rule A.14]

One commenter considered that (j)(1) should refer to "life preservers" to encompass all life jackets/vest/floatation devices not just life jackets.

CAA response: CAA agrees and has incorporated this terminology in the final rule.

One commenter considered that (j)(3)(x) should be expressed as a metric measure of 25 metres to be consistent with the use of metric measurements elsewhere in the rules.

CAA response: CAA agrees and has amended the rule accordingly.

One commenter suggested that (10) should be amended to read "when ELT becomes beyond economical repair."

CAA response: CAA does not agree as the issue of economical repair is one to be determined by the operator. A definition unserviceable has been is included in the final rule for clarity.

One commenter stated that the requirement for external markings to indicate the location of first aid kits is not practical for large aircraft as it is not possible to identify the exact internal location this way. The commenter that this should only apply to aircraft not exceeding 5700 kg MCTOW.

CAA response: CAA agrees and has amended the rule accordingly.

One commenter stated that regardless of standards, all ELTs currently installed as approved should be included in (10), whether they meet the TSOs listed or not. The commenter believes that there are sets currently approved but not meeting TSO C91.

CAA response: TSO C91 is the present standard and there are no ELT's approved that do not meet this standard

One commenter considered that first aid kits should be included in (j).

CAA response: CAA agrees and has added first aid kits in Appendix A.

2.113 Paragraph (k) [Final rule A.16]

One commenter why the use of cartridge-oxygen in solid-candle form is not included? It is a very safe and convenient form of equipment for light aircraft short term use, and large transport aircraft have used it for passengers during emergency descents for years.

CAA response: The rule does not preclude the use of cartridge oxygen in candle form (oxygen generators) for compliance with the requirements to provide oxygen.

Regulatory activities

Part 91 replaces numerous requirements from the Civil Aviation Regulations 1953, the Civil Aviation Safety Orders, and the New Zealand Airworthiness Requirements.

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.

Conclusion

The Authority concludes from this consultation that the aviation industry participants favour the direction of the new rules. The rules also meet New Zealand's international obligations under the applicable ICAO Annex. The comments and all 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 the Civil Aviation Authority, Level 15 Asteron Centre, 55 Featherston St, Wellington 6140, and ask for docket file 1022.