Part 137 - Consultation

Note: This statement does not form part of the rules contained in Part 137. 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 Air Transport Division of the Ministry of Transport commenced a complete review and rewrite of all existing civil aviation legislation and where necessary initiated new legislation for the areas not previously covered.

Considerable research was carried out to determine the format for the new legislation. It was decided that the most suitable legislative framework should incorporate the advantages of the system being developed by the European Joint Aviation Authorities and published as Joint Aviation Requirements (JAR), and of the Federal Aviation Administration (FAA) of the United States of America. The JAR are structured in a manner similar to the FAA's Federal Aviation Regulations (FAR) and aim to achieve maximum harmonisation while allowing for national variations.

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

Accompanying each Part of the CAR will be at least one associated Advisory Circular (AC) which will expand, in an informative way, specific requirements of the CAR and describe an acceptable means of compliance. For example, an AC may contain the minimum acceptable practice or standard which would be necessary to meet a rule.

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

The FAR has been used as the starting point for the development of many CAR but there are likely to be significant differences in the content of the rule. The structure of Part 137 generally follows the content of the FAR. Changes have been made to conform to New Zealand legal practices and terminology.

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 maintain continuing regulatory control and supervision while providing the maximum flexibility for participants to develop their own means of compliance.

Section 7 of the Civil Aviation Act 1990 (the Act) provides for the requirement to hold an aviation document for carrying out particular civil aviation activities. Section 12 of the Act requires the holders of such documents to carry out their activities safely and in accordance with the relevant prescribed safety standards and practices.

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 92-7 under Docket Number 1033 NR on 25 November 1992. This Notice proposed the introduction of Civil Aviation Rules Part 137 to provide a regulatory safety boundary for the certification of persons or organisations wishing to perform agricultural aircraft operations.

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 comment to Docket Number 1033 NR NPRM

1. General Comments on the NPRM

From the eight submissions received, four general issues were raised. These are discussed as follows:

1.1 Operator Certification

The view was expressed by both the aviation industry and other bodies that agricultural aircraft operators should be certificated.

CAA response: The CAA has considered industry requests for operator certification and has amended the Part to provide for such a requirement.

The CAA approach was that outlined by the Swedavia-McGregor Review of Civil Aviation Safety Regulations and the Resources, Structure and Functions of the New Zealand Ministry of Transport Civil Aviation Division that was carried out in 1988. The concept outlined was that a commercial pilot licence (for the pilot) and a certificate of airworthiness (for the aircraft) were sufficient as entry criteria in this area of operations. The CAA has however agreed to accommodate the views of industry.

1.2 Statistical Data

One commenter queried why there were no requirements for statistical returns in Part 137.

CAA response: The requirement for statistical returns is to be promulgated in Part 3 and will require returns from a variety of operators, both commercial and private, corporate and individual.

1.3 Commercial Operations

One commenter requested that microlight aircraft and their pilots be permitted to conduct agricultural aircraft operations.

CAA response: The CAA does not agree with the commenters request, as the CAA is unsure as to how an equivalent level of safety could be achieved.

A further request from the commenter has since been received that goes some way to demonstrate how an equivalent or acceptable level of safety can be achieved. That matter will now be further consulted with industry. The suggestion will go through the normal rule making and consultation processes required by Part 11.

1.4 Chemical Safety

One commenter made considerable comment on the apparent lack of rules regarding the health and safety risk that may arise from agricultural aircraft operations. The commenter is seeking to have stricter controls on all spraying as well as the enforcement of accountability. The commenter noted that much of the existing legislation pertaining to agrochemicals and hazardous substances is about to be brought into the one piece of legislation under the proposed Hazardous Substances and New Organisms Bill.

CAA response: The CAA is aware of the concerns relating to aerial application of hazardous substances and of the proposed Hazardous Substances and New Organisms Bill. As part of the consultation process for Part 137, discussions were held with the Ministry of the Environment who are introducing the Hazardous Substances and New Organisms Bill, the Ministry of Agriculture and Fisheries and the Occupational Safety and Health division of the Ministry of Labour.

The CAA will continue to work with these authorities and will ensure that Part 137 is amended to reflect any requirements that are promulgated in the hazardous substances legislation.

2. Specific Comments on the NPRM

From the eight submissions received, three specific issues were raised. These are discussed as follows:

2.1 137.59 Pilot Qualifications - Chemical Ratings

Two commenters suggested that the holder of a Chemical Rating should either be assessed periodically or undergo regular update training appropriate to the Chemical Rating.

CAA response: The CAA accepts that the holder of a Chemical Rating needs to maintain an up-to-date knowledge of the industry and the resources used. Update training has recently become available for those using agrochemicals and the rule has been amended accordingly.

2.2 137.101 Maximum Take-off Weight

One commenter suggested that, where provision is made for operating at increased take-off weights, then the criteria on which such a determination is made should be clear, unambiguous and concise.

CAA response: The CAA agrees and has amended the rule to include such criteria.

However, the procedures included in this rule do not provide exhaustive criteria. It would be difficult, if not impossible, to produce a set of charts or other method of calculating the limiting AUW for a particular agricultural airstrip that would take account of all the criteria that must be considered for an agricultural maximum load take-off.

The agricultural pilot usually operates by starting at a take-off weight known to be well within the capabilities of the machine and it's pilot and gradually increases the load to the maximum acceptable to the pilot under the existing conditions or the regulatory limit, whichever occurs first.

2.3 137.119(b)(1) Operations over a Congested Area

One commenter suggested that it was inappropriate for the CAA to require that an operator should obtain the approval of a local authority before conducting operations over a congested area. This should be the prerogative of the local authority.

CAA response: The CAA accepts the comment and has amended the rule accordingly.

Change to the NPRM

An item which regularly arose at consultation meetings, and the subject of the questionnaire was the jettison requirements. These have been transferred to Part 21 to be applied at the time the aircraft enters the aviation system by the issue of a type certificate. The final requirements in Part 21 will be —

‘(d) Airworthiness design standards for aeroplanes to be certificated in the restricted category for the purpose of agricultural aircraft operations include —

  1. the crew protection requirements prescribed in Section .35 of Appendix B of the United States of America Civil Aeronautics Manual 8 (dated 1 February 1965); and
  2. for an aeroplane fitted with internal dispensing equipment, a placard indicating representative dump times, in full view of the pilot; and
  3. for an aeroplane fitted with internal dispensing equipment, equipment capable of jettisoning not less than 80% of the aeroplane’s maximum load of agricultural material within 5 seconds when configured for dispensing superphosphate or similar material.’ "

Conclusion

The Authority concludes from this consultation that on balance the industry participants are in favour of the proposal. It also believes that Part 137 meets New Zealand’s international obligations and is consistent with the recommendations of the Swedavia-McGregor Report of 1988.