Part 119 - Consultation

Note: This statement does not form part of the rules contained in Part 119. It provides details of the consultation undertaken in making the rules.

Background to the Rules

In April 1988 the Swedavia-McGregor Report on civil aviation regulation in New Zealand was completed. Following the recommendations contained in that report, the Civil Aviation Authority (CAA) (formerly the Air Transport Division of the Ministry of Transport) commenced a complete review of all existing civil aviation legislation. The existing legislation that is still appropriate is being rewritten into the new Rules format. New legislation is being generated where necessary for the areas not presently covered.

Considerable research was carried out to determine the format for the new legislation. It was decided that the legislative framework should incorporate the advantages of the regulatory system of the Federal Aviation Administration (FAA) of United States of America and the system being developed by the European Joint Aviation Authorities and published as Joint Aviation Requirements (JAR).

The new rules are structured in a manner similar to the Federal Aviation Regulations (FAR) of the FAA, and aim to achieve maximum harmonisation whilst allowing for national variations. Close co-operation is also being maintained with the Civil Aviation Safety Authority of Australia to ensure maximum harmonisation with their regulatory code.

New Zealand’s revised legislation is published as Civil Aviation Rules (CAR) which is divided into Parts. Each Part contains a series of individual rules which relate to a particular aviation activity.

Accompanying most Parts will be at least one associated Advisory Circular (AC) which will expand, in an informative way, specific requirements of the Part and acceptable means of compliance. For instance an AC may contain examples of acceptable practices or procedures which would meet the requirements of a particular rule.

The CAR numbering system is based on the FAR system. As a general principle the subject matter of a rule Part will be the same or similar to the FAR although the title may differ to suit New Zealand terminology. Where a CAR Part does not readily equate with a FAR number code, a number has been selected that does not conflict with any existing FAR Part.

The objective of the new rules system is to strike a balance of responsibility between the State authority and those who provide services and exercise privileges in the civil aviation system. This balance must enable the State authority to set standards for, and monitor performance of, aviation participants whilst providing the maximum flexibility for the participants to develop their own means of compliance.

Section 12 of the Civil Aviation Act 1990 requires participants in the aviation system to carry out their activities safely and in accordance with the relevant prescribed safety standards and practices. Section 28 of the Act allows the Minister to make ordinary rules.

Notice of Proposed Rule Making

To provide public notice of, and opportunity for comment on the proposed new rules, the Authority issued Notice of Proposed Rule Making 95-13 under Docket Number 1031 on 13 December 1995. This Notice proposed the introduction of Civil Aviation Rules Part 119 Air Transport Operator - Certification.

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 NPRM

General comments on the NPRM

Two commenters considered the economic analysis of this rule, together with the other flight operations rules, was flawed. They do not accept the concept of using the FAA cost/benefit analysis as an acceptable substitute for an analysis based on the New Zealand situation. They also suggest that some new rule requirements impose costs on operators which are unlikely to produce safety gains.

CAA Response: The economic analysis only considered those aspects of the FAA analysis where appropriate to New Zealand conditions. The majority of requirements flow either directly from or as a means of compliance with the ICAO Standards as promulgated in the Annexes to the Convention. New Zealand, as a signatory, has an obligation to meet those standards, and can only consider a difference if there is little or no interface with international aviation.

2. Specific comments on the NPRM

Specific comments received from the 45 submissions are discussed as follows:

119.3 Definitions

Three commenters sought clarification regarding the definition of operational responsibility and s uggested that definition of maintenance programme is required.

One commenter requested clarification regarding Aerial Work.

CAA Response: An AC will be used to clarify in both cases. Aerial Work will no longer exist

119.5 Requirement for Certificate

One commenter considered the rule would prevent advertising of new route for existing operator.

CAA Response: An amendment has been made to remove the anomaly.

119.11 Issue of Certificate

Fifteen commenters queried what is a fit and proper person. They were concerned that there are persons who run air transport operations who have and continue to collect criminal records.

CAA Response: The criteria as to what is to be considered when determining whether person is a fit and proper person is prescribed in section 10 of the Civil Aviation Act.

119.15 Duration of Certificate

Two commenters disagreed with a terminating certificate.

CAA Response: The Civil Aviation Act requires that the maximum period for which each aviation document may be issued shall be prescribed in rules made under the Act. The rule reflects CAA safety policy that the certificates are to be issued for a maximum of 5 years.

Subpart B — Standard Air Operator - Certification Requirements

119.51 Personnel Requirements

One commenter suggested clarifying who would be acceptable to the CAA as CEO and clarifying the term sufficient personnel.

Two commenters expressed concerns about organisational structures and specific responsibilities, as proposed in the rule.

Two commenters believe that any operator should be able to contract out their check and training functions.

One commenter suggested that there is some conflict between Part 119 and Part 121.

One commenter suggested that it is not necessary for the person with responsibility for line operations to hold or have held a pilot licence.

CAA Response: The acceptability of the CEO is a matter for the Safety Certification unit, who will implement the intent of the rule; what is acceptable will be addressed in the AC. Whilst it would be ‘nice’ to define sufficient personnel, it would be impossible to set firm figures. Such assessments will always be subjective, although there are established industry yardsticks.

The rule will be amended to require that certain functions are clearly identified in the responsibilities of nominated senior persons. This will facilitate the use of some existing or proposed corporate structures.

The CAA believes that there is a scale of operation above which an operator should establish an in-house check and training capability. It is, however, accepted that part of that capability may be provided by contract.

The final rules will have no conflict between Parts. The CAA also believes that some operational decisions should be made by persons with significant operational experience. An operator or applicant who believes otherwise can always apply for an exemption from the requirement, and justify that request with evidence as to how at least an equivalent level of safety will be provided.

119.53 Resource Requirements

One commenter suggested that .53(b)(2) should be in Part 145.

One commenter suggested minor rewording.

One commenter suggested qualification of the resources required.

CAA Response: Some operators will not be required to use a Part 145 organisation. An appropriately licensed and rated engineer can do the work The operator, in this case, has a responsibility to provide an environment suitable for the task.

The Act requires the Director to be satisfied as to the applicant’s ability to meet the regulatory requirements. The phrase acceptable to the Director enables this obligation to be met.

As previously mentioned, whilst guidelines or yardsticks may exist in some cases, the decisions are usually finally subjective, but open for consensus.

119.55 Proving Flights or Tests

One commenter suggests that there is conflict between Parts 119 and 121, and that the wording is not specific enough.

One commenter suggests conflict between the parts.

One commenter asks as to whether the rule requires a certain number of hours or specific outcomes.

One commenter suggests the rule is open-ended.

CAA Response: Again, any conflict between the parts will be resolved. Proving flights or tests would be required to demonstrate competence, not just for the logging of flight time. Suggested rewording can also be considered as open to interpretation.

119.57 Operational, Safety, and Maintenance Data

One commenter requested AC amplification of this rule.

CAA Response: This request will be met.

119.61 Internal quality assurance

Two commenters suggested that the use of statistical analysis in management review should be optional, not mandatory.

One commenter suggested some rewording and that the organisation’s CEO should be able to use whosoever was deemed fit to undertake an internal audit.

CAA Response: The first suggestion is acceptable and the rule has been amended. The rewording suggested will be considered in the review of AC 120-01 In the third case, it is considered unlikely that the CEO would ask an untrained person to do the job. What is therefore in question is the interpretation of trained. This will again be addressed in either the Part 119 AC, or the revision of AC120-01

119.63 Maintenance responsibilities

One commenter suggested that the rule should refer to the continued airworthiness

CAA Response: The amendment has been accepted.

119.65 Approved maintenance programme

One commenter requested a definition of maintenance programme.

CAA Response: Refer to 119.3

119.67 Establishment of Operations Procedures (See also 119.113)

Two commenters had minor comments about numbering.

Two commenters suggested that the list may not include all and could therefore require frequent amending. It should be in the AC.

CAA Response: The numbering will be correct in the final rule. The rule specifically states "Procedures …are required for, but not necessarily limited to, the following–". This was done both to show that the list is not limiting and also to show that, for the examples listed, procedures are required. There is a tendency to regard ACs as not authoritative.

119.71 Air Operator Exposition

One commenter expressed the view that it is unreasonable to ask the Chief Executive to sign a statement that the requirements of the Exposition will be complied with at all times. It was suggested that there will always be non-compliance with humans involved. The commenter also seek clarification as to the interpretation of .71(a)(4), regarding personnel are based.

CAA Response: The rule has been amended so that the statement signed by the CEO is that it is company policy that the exposition will be complied with, rather than the current wording. The second matter will be clarified, probably in the AC.

Subpart C — Restricted Air Operator - Certification Requirements

One commenter expressed the view that this subpart should be deleted, allowing standardisation across industry.

CAA Response: Several other major regulatory authorities have provision for alternative and acceptable standards, such as the FAA, the Australian CASA and the UK CAA. Industry has called for such a provision and the idea has been found acceptable by management and the Authority.

119.107 Maintenance responsibilities

One commenter raised the same issues as were dealt with under 119.63. The response is the same.

119.111 Approved maintenance programme

One commenter suggested re-wording suggested

CAA Response: For consideration by Maintenance Specialist

119.113 Establishment of Operations Procedures

One commenter made the same comment as for .67. The commenter requested that an operator should advise the air traffic services provider with respect to any operating differences established under 121.159 or 135.159.

CAA Response: Same response to first comment. We will establish with operators whether there is a need for the service provider to know whether an operator is operating to different DH or MDA from those published. If there is a need for the service provider to have this information, then they will get the information.

Subpart D — Operating Requirements

119.151 Continued Compliance

Two commenters requested provision be made for electronic or computer coverage.

CAA Response: The rule doesn’t preclude this. However, this option will be specifically included, as appropriate, and clarified.

119.153 Flight Operation Requirements

One commenter had the view that the imposition of the Part 121 requirements on operations by aircraft with 10 or more passenger seats (as against the current more than 30 seats) would not be acceptable, but that commenter has changed their view.

CAA Response: T he view has been noted, and no further action taken at this time.

119.155 Flight Authorisation and Control

One commenter stated their interpretation of the rule.

One commenter defined authorisation, suggested implications of the rule, and thought the words could be better.

CAA Response: The commenter’s interpretation is correct.

119.157 Flight Following System

One commenter stated that 30 minutes was not feasible on some longhaul international flights. One commenter said it is not in the FAR and provides no enhancement to flight safety.

CAA Response: The commenter has been asked what figure is acceptable for longhaul international flights, and the rule has been amended to provide for them and other in a similar situation. For the commenter, the specific requirement as such is not in the FAR. However, the FARs do have flight dispatch and flight locating requirements at Part 121 Subpart U and Part 135.79 respectively. These effectively require a level of watch over any air transport flight that will ensure timely notification if an aircraft is overdue or missing.

119.159 Limitations on use of services

One commenter believes that it should not be a requirement for a flight crew member on air transport operations to actually have their licence and medical certificate in their possession.

CAA Response: The current New Zealand requirement is only for international operations. The rule has been amended to reflect this.

119.161 Records – Personnel

One commenter suggests that the records should be retained for a period of two years (as against one in the NPRM).

Response: It is presumed that this would be to reflect the longer period over which the commenter is approved to conduct a recurrency training program. The rule will be amended to add ,or such longer period may be required by the Director, in consideration of their specific approvals or words to that effect.

119.163 Records – Resources

Notwithstanding the comment on page 3 of the NPRM, one commenter asked for the rule to be specific or deleted.

CAA Response: The AC will be used to give examples of what can be considered a safety critical resource. Existing operators seeking initial certification under Part 119, and new operators, should seek clarification during their initial discussions regarding certification, or should, with specific examples, seek clarification from the Rules and Standards Group.

119.165 Charter, cross-hire, and leasing of New Zealand registered aircraft

One commenter believes that .165(b) is superfluous.

One commenter does not see retention of lease agreements as a safety issue.

CAA Response: Whilst the rule may appear superfluous, its inclusion removes any doubt or ambiguity. Retention of any lease details will enable clear identification of responsibilities that were put in place for the term of the lease.

119.167 Use of Non-New Zealand Registered Aircraft

One commenter believes that the rule should not contain any timeframe.

One commenter suggests that the timeframe is too rigid and should have a degree of flexibility.

One commenter wants a rule similar to 121. 151 or 135.25 of the FAR.

Response: The timeframe has been included in all similar rules. But it will be amended to reflect the above concerns. The FAR rules are contrary to existing practice and policy.

119.169 Business or Trading Name

One commenter seeks clarification of the wording and intent, particularly in relation to Air New Zealand Link services.

One commenter had some similar difficulties.

One commenter believed there would be difficulties where common boarding passes are used.

One commenter also had some difficulty regarding codeshare flights and branded aircraft.

One commenter suggested that the matter was not a safety issue.

One commenter suggested that compliance with .169(c) would be complex and there were no safety implications.

CAA Response: Air New Zealand and Ansett New Zealand will have no problems regarding the business or trading name. Ansett Regional and Air New Zealand Link operators should indicate, in the application, their trading names in addition to their legal business name. Their certificates will show both names. The regional operators’ business names can be shown on boarding passes and the services they operate can be identified by flight number groups (e.g. NZ5xxx = Mount Cook, NZ8xxx = Air Nelson). Many States now require a passenger to be informed of the identity of the operator when a flight operates as a codeshare. The public have also clearly indicated that they wish to know the operator’s identity. It does appear that the public consider that the operator’s identity can give them an indication of the level of safety for the conduct of their intended flight.

119.171 Privileges and Limitations of Certificate Holder

One commenter suggested additional wording - (a)(2)(iv) test or check, validation or proving flights following maintenance. One commenter sought clarification in regard to the restricted certificate holder.

CAA Response: The rule will be clarified. The restricted certificate holder will be able to nominate only one pilot, and there will be a limit on the amount of flying able to be performed by any relief pilot.

119.173 Changes to Certificate Holder's Organisation

One commenter suggested that items (b)(3) and (b)(6) were unnecessary.

CAA Response: The establishment of a base, or an additional base, would probably require the appointment of an additional senior person, above those listed in (b)(2), and is thus justified. Additionally, it may also require consideration under Part 157 or for planning audit schedules. There may be a need for, in effect, entry control over any additional operation or change of provision of maintenance or training.

Appendix A — Qualifications and experience of senior persons – standard certificate holder

One commenter suggested specific wording.

One commenter suggested there should be provision for those who held a licence , now expired, before lifetime licences were introduced, and for those who had acceptable military or other experience.

One commenter suggested clarification in the Part 135 multi-crew area.The commenter suggested rewording that was very non-specific and open to subjective decision making. They also suggested that the rule should not create a situation where personnel with the qualifications to fill a position needed to be sourced from outside the organisation.

Two commenters suggested that some requirements were too stringent and would put some operators out of business. They also had concerns about the requirements for a Maintenance Controller.

CAA Response: The wording suggested by one commenter was the same as that in the rule. One commenter’s suggested requirement, for existing personnel, is met by transitional arrangements or by the statement under the table. It is unlikely that a person who does not hold a lifetime licence and is re-entering the industry would be acceptable for a senior person position. One commenter’s argument was that provision needs to be made to accept senior persons with varying experience depending on the nature of the operation. Their example, however, was one that would have required, as per the table, persons of significantly different qualifications and experience. If an organisation is expanding the capability of its operations to one that requires greater knowledge or experience of its senior person(s), then it is reasonable to expect that such persons be available. If they are not available within the organisation, either due to attrition or due to organisational expansion, then the appropriately qualified and experienced personnel would have to be found outside the organisation. It is not acceptable to expect a standard to be lowered or not met in such circumstances. The requirements proposed are seen as a minimum for the new environment where industry has to accept a greater degree of responsibility for the oversight and safety of their operations. One commenter did not seem to realise that it will be possible for small organisations to contract this position, and it is highly likely that they will have to do so.

Appendix B — Qualifications and experience of senior persons – restricted certificate holder

Two commenters expressed the same views as to Appendix A. These views evoke the same responses.

Conclusion

The Authority concludes from this consultation that the majority of the aviation industry participants favour the direction of the new rules. Specific issues that were identified in the comments received from the consultative group have been addressed. The rules also meet New Zealand’s international obligations under the applicable ICAO Annex. The comments and all the background material used in developing the rules are held on the docket file and are available for public scrutiny. Persons wishing to view the docket file should call at the Civil Aviation Authority, Level 15 Asteron Centre, 55 Featherston St, Wellington 6140, and ask for docket file 1031.

Transitional arrangements

Part 119 contains a transition provision in 119.171. This provision will allow holders of air service certificates issued under the Civil Aviation Regulations 1953 to continue operating under those certificates provided certain conditions are met. The provision also contains a grandfather clause that allows persons holding certain positions within an organisation to continue to do so without holding the qualifications that are necessary under Part 119.

Regulatory activities

Part 119 replaces numerous requirements from the Civil Aviation Regulations 1953. It replaces the existing certification requirements under regulations 136, 136A, and 191 of the Civil Aviation Regulations 1953.

Section 14(2) of the Civil Aviation Amendment Act 1991 (as amended by section 34 of 1996 No. 91) deems the Civil Aviation Regulations 1953 that are continued in force by section 8 of that Act to be revoked on the close of 31 March 1997.

Section 14(3) states that any order, notice, requirement, circular, or other publication continued in force by section 8 shall expire on the close of 31 March 1997.