Part 149 - Consultation
Note: This statement does not form part of the rules contained in Part 149. 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 95-6 under Docket Number 1140 on 22 November 1995. This Notice proposed the introduction of Civil Aviation Rules Part 149 for the certification of aviation recreation organisations.
Comments made on the Notice of Proposed Rule Making are available in the rules docket for examination by interested persons.
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 1140 NPRM
The Auckland Gliding Club "views with real concern some of the proposed aspects to Part 149" and said "The proposals contained in Part 149 cannot be undertaken either by a governing body such as the NZGA Inc or by individual gliding clubs without the necessary financial and other resources".
Civil Aviation Authority response was to note these concerns and to have addressed them in the changes to the final draft.
The Auckland Gliding Club said, in regard to rule 149.51, that "An applicant for an aviation recreation organisation certificate should not be obliged to employ a Chief Executive who is personally responsible for the activities undertaken by the organisation. The functions of the Chief Executive as outlined in the NPRM should be capable of delegation to a ‘group of senior persons’ or to a ‘group of senior persons of a particular class’ such as the executive of the NZGA Inc".
Civil Aviation Authority response was that the rule requirement is standard for organisational rules, and that the authority to ensure that all activities can be carried out does in fact meet the submission.
The Auckland Gliding Club said, in regard to rule 149.75 of the NPRM, that "The obligation of the Chief Executive to certify compliance is an unrealistic expectation and should be deleted".
Civil Aviation Authority response has been to accept this point and to change the requirement to enforcing compliance.
Canterbury Microlight Aircraft Club (Inc) andSouth Canterbury Microlight Club both said they believe that Part 149 should only deal with matters pertaining to the setting up of an organisation and anything relating to the certification and operation of aircraft and the licensing of personnel should be dealt with in the relevant 100 series document.
Civil Aviation Authority response was to agree that the detail of personnel licensing (or certificates where the document is not issued directly by the CAA) does not belong in this organisational Part. However it also does not belong in an operational Part. It is therefore proposed to put all sport and recreational personnel certificates into a new Part 62 - Recreation Certificates and Ratings. Meanwhile those personnel certification requirements have been placed in Part 19 - Transition Rules.
Canterbury Microlight Aircraft Club (Inc) made eight detailed points on microlight certificates and ratings.
Hawkes Bay Microlight Club Inc. made four detailed points on microlight certificates.
Micro Aviation New Zealand Limited made two detailed points on microlight ratings and medicals.
South Canterbury Microlight Club made eight detailed points on microlight certificates and ratings.
An individual commentor made six detailed points on microlight certificates and ratings.
Another individual commentor made two detailed points on microlight certificates and ratings.
Civil Aviation Authority response to the above six submissions was that all these points will be used in developing the Advisory Circular for the appropriate rule Part.
The Co-ordinator Aviation Policy of the Ministry of Transport did "not see it as being either necessary or desirable for the Authority to delegate its standards development function to persons outside the Authority".
An individual commentor said "We fear that to devolve responsibilities completely to (a 149 organisation) will lower the licensing standards presently available".
Civil Aviation Authority response to the above two submissions was that the changes made to this Part have addressed these problems.
Hawkes Bay Microlight Club Inc said "We noted in aviation news that you welcome positive comments, not just negative ones. We have only made a few suggestions for amendment which indicates we generally support your proposals. We recognise that the aims of the NPRM are concerned with safety and general benefits to the pilots and to this end this NPRM makes a good start - thank you!".
Civil Aviation Authority response was to note this comment.
Micro Aviation New Zealand Limited said it is unclear in the rule and advisory circular who issues licences, certificate, and ratings.
Civil Aviation Authority response was that the issue of all licences will remain a direct CAA function. The issue of certificates will be an industry function under delegation from the Director. Ratings attach to either licences or certificates, and can be logbook entries, but the appropriate rules will make this clear.
The Microlight Aircraft Association of N.Z. (Inc) made several specific points and said "For the above reasons we are unable to support the NPRM Part 149 in its present form. Instead of being totally negative on this we propose to redraft the Part 149 rule and submit it to you for your consideration".
Civil Aviation Authority response was that most of the points raised by MANZ referred to the earlier draft of this Part and that most have now been addressed.
New Zealand Autogyro Association made four detailed points about experience requirements for rotary wing microlight certificates and ratings.
Civil Aviation Authority reply is that those points will be used in developing the Advisory Circular for the appropriate rule Part.
The New Zealand Gliding Association made very extensive submissions throughout the consultative process. These culminated in a consolidated submission of the outstanding points.
Civil Aviation Authority response was that most of the points raised by the NZGA had been addressed at an earlier stage of the consultative process and the consolidated submission is accepted as a record of the few points outstanding.
The New Zealand Gliding Association "maintains that CAR Part 149 fails to meet Aim (b) of the Rules process" to remove excessive costs of compliance from the New Zealand civil aviation system and "requests that an economic analysis be conducted prior to the submission of CAR Part 149 to the minister for signature".
The New Zealand Gliding Association "maintains that CAR Part 149 fails to meet Aim (d)(i) and Aim (d)(ii) of the Rules process" to allow the Civil Aviation Authority’s intervention in the civil aviation system to be reduced to the appropriate level, through a reduction in unnecessary regulatory requirements and/or the introduction of management systems including Quality Assurance (Self Review) and "recommends that reporting, record keeping, auditing, monitoring and inspection requirements be tailored for recreational groups rather than merely mimicking the requirements intended for Air Transport Operations".
Civil Aviation Authority response to the above two submissions was that there were no excessive costs of compliance to remove in the pre-Part 149 system, nor was there any intervention that required to be reduced to an appropriate level. However it is not possible to compare the costs and intervention required by Part 149 with the previous situation, as the Act does not allow the previous situation to continue. Any comparison has to be between what Part 149 proposes, and any alternative methods of complying with the requirements of the Act.
In these circumstances, of a true comparison of the options that are actually available, Part 149 has minimised intervention and costs to the lowest appropriate level. The organisational requirements of Part 149 are standard for all organisational Parts; but these may be tailored to the organisational certificate sought, and to the specific privileges sought. In the case of Part 149, the exposition may merely be required to satisfactorily describe how a recreational organisation will provide its own pilot certification programme. An economic analysis was included in the NPRM and any further analysis could add little to this response.
The New Zealand Gliding Association says"The 5 yearly renewal of the certificate imposes increased costs for no apparent reason" and proposes "that aviation certificates be non-terminating for recreational organisations, subject to ongoing audit and monitoring by the Authority".
Civil Aviation Authority response was that the personal certificates issued by the Part 149 organisations may be lifetime certificates the same as pilot licences. However the "life cycle" approach of Swedavia McGregor requires organisational certificates to terminate within 5 years.
The New Zealand Gliding Association says Part 149 "imposes a prescriptive requirement on the organisation, being the use of ICAO Human Factors Digest No 10 - Human Factors, management and Organisation, which is out of keeping with the context of the rest of the Rule" and "recommends that the requirement to include Human Factors Digest No. 10 should be amended to require human factors, as a subject, to be included in the documentation and procedures listed in the applicant’s exposition".
Civil Aviation Authority response was to accept this submission and transfer the name of the document, which is specifically recommended, from the Rule to the Advisory Circular.
The New Zealand Gliding Association says Part 149 "contains extensive informative material, indicating how internal quality assurance is to be achieved, which is out of keeping with the context of the rest of the Rule" and recommends this should be removed from the Rule and transferred to the Advisory Circular.
Civil Aviation Authority response was that this material originated as Advisory Circular material but was considered to merit upgrading to Rule status. This decision was revisited as a result of this submission and it was still considered, at least for the time being, that the detail is sufficiently important to be included in the rules.
The New Zealand Gliding Association says Part 149 "requires a democratic organisation to submit requests to the Director for changes to senior persons which may not be identified until following the completion of voting at an Annual General or Special General Meeting" and recommends this "be amended to require the Director to be notified immediately whenever a senior listed person is changed as a result of organisational changes or elections". The NZGA says "The Director always has the opportunity to oppose the appointment of an individual to certain responsibilities within the organisation under the ‘fit and proper person’ test provided by the Civil Aviation Act 1990".
- Civil Aviation Authority response has been to accept this submission and amend 149.103.
The New Zealand Gliding Association "is concerned that CASO 17 will be retained in force for a period of 24 months after 1 April 1997".
Civil Aviation Authority response is that CASO 17 will be revoked on 31 March 1997. The operational detail of CASO 17 will be transferred to the consultative process for Part 104. The training and certification details will be transferred to Part 19, and then later to Part 62.
New Zealand Hang Gliding and Paragliding Association made a detailed submission and "strongly urges CAA to make a dispensation allowing operations for hire and reward to continue under the auspices of this Association".
Civil Aviation Authority response was that it has conducted a review of Adventure Aviation and plans to address this matter through the consultation process for Part 115 - Adventure Aviation.
New Zealand Parachute Federation say they "agree with the concept of certification as a means of maintaining and enhancing the level of safety in sports aviation".
Civil Aviation Authority response was to note this comment.
New Zealand Parachute Federation "believes that parachuting is so different from other aviation activities that the creation of a special commercial parachutist licence under Part 61 and/or the creation of a separate rule for commercial parachuting (or significant adjustment of Part 105) is not justified on either safety or economic grounds".
Civil Aviation Authority response was that there has been discussion between the CAA and the NZPF, since this submission, which has addressed these matters.
New Zealand Parachute Federation made detailed submissions on the privileges of certificate holders; operational procedures; maintenance procedures, and internal quality assurance.
Civil Aviation Authority response was that this detail has been superseded by changes in the focus of Part 149.
New Zealand Parachute Federation said of Rule 149.75(a)(11)(viii) of the NPRM, organisation exposition, that "All the other requirements call up the first paragraph of the relevant section which is a general statement of intent. This requirement should do the same".
Civil Aviation Authority response has been to make the change requested.
New Zealand Parachute Federation suggest that rule 149.75(b) of the NPRM be reworded "The applicants exposition must be acceptable to the Director in accordance with section 9 of the Act".
Civil Aviation Authority response was that all Civil Aviation rules must be in accordance with the Act.
New Zealand Parachute Federation and Rural Aviation (1963) Ltd, in regard to rule 149.103(a), both pointed out the word "exposition" should have been "organisation".
Civil Aviation Authority response has been to substitute the correct word.
New Zealand Parachute Federation made several detailed points on parachutist certification and medical requirements.
Civil Aviation Authority response to the above submissions was that these will be used in developing the Advisory Circular to the appropriate Part.
New Zealand Parachute Federation made comments about Part 149 Organisations controlling recreational activities.
Civil Aviation Authority response was that those activities, which either do not require a Part 149 certificate, or which are functions of the CAA itself, are no longer listed in Part 149.
New Zealand Parachute Federation says "Computerisation and the use of electronic based storage media is becoming more prevalent and should be included in the rule" and suggests Rule 149.55 include data control.
Civil Aviation Authority response was that electronic data is already included in the definition of documentation.
New Zealand Parachute Federation made several suggestions to reword Rule 149.57 - records.
Civil Aviation Authority response was that the present wording is a standard organisational requirement that has been developed through the proper procedures.
New Zealand Parachute Federation suggested that rule 149.62 - compliance with standards - be renamed and rewritten in accordance with an offered draft.
Civil Aviation Authority response was to consider the rule in the light of the submission, and to decide to remove it as superfluous.
New Zealand Parachute Federation say they "would recommend that the wording of ISO 9000 be revisited and incorporated verbatim where relevant. On the other hand the wording and arrangement of some clauses is better that the generic solution offered by ISO 9000 and should be retained".
Civil Aviation Authority response was to note these comments for consideration alongside the several other guidelines in use.
Rural Aviation (1963) Ltd say they are "in full agreement with the intent of the document and it is great to see the responsibilities and powers in certain areas being delegated to those people who are directly involved and experienced in such matters".
Civil Aviation Authority response was to note the comment and to confirm that where possible this is the direction of this Part.
Rural Aviation (1963) Ltd, in regard to rule 149.5 of the NPRM, were concerned that a certificate would be required before an operator could establish their own additional safety standards or procedures.
Civil Aviation Authority response was that this rule had already been revisited as requested, and removed.
Rural Aviation (1963) Ltd, in regard to rule 149.103(d)(5) and (6), said they "appear to be an unnecessary impediment on the certificate holder to remain dynamic and meet changing circumstances".
Civil Aviation Authority response has been to have already removed those requirements as inappropriate.
Sport Aviation Corporation Ltd say they "are quite happy with Docket 1140 with the exception of the stated VNE of low performance Microlights. We understand this figure is being altered to make 100 MPH the VNE which makes sense. The NPRM sets out to raise the pilot standards which we feel can only be good for the sport".
Civil Aviation Authority response is to note the comments and to use the submission when developing the Advisory Circular to the appropriate rule Part.
Tauranga Gliding Club asks, in regard to rule 149.9(2) and (3) of the NPRM, about definitions and procedures for "fit and proper person" and "the interests of aviation safety".
Civil Aviation Authority response was that these are requirements of the Act.
Tauranga Gliding Club asks, in regard to rule 149.7(2) of the NPRM, about the "appropriate fee".
Civil Aviation Authority response was that these fees are specified in Civil Aviation Charges Regulations (No 2) 1991.
Tauranga Gliding Club asks, in regard to rule 149.13(b) of the NPRM, about the power and conditions of revoking certificates.
Civil Aviation Authority response was that these are contained in sections 17 to 20 of the Act.
Tauranga Gliding Club says, in regard to rule 149.55, that they "would like the words ‘shall hold copies of’ to be replaced with ‘shall have ready access to’" all relevant documentation.
Civil Aviation Authority response was that this requirement to hold documentation is for organisations and is what "is necessary to establish procedures for the activities listed in the applicant’s exposition".
Tauranga Gliding Club says, in regard to rule 149.105(b), that the expression "as the Director considers relevant" is too broad a power.
Civil Aviation Authority response was that this is in respect of safety inspections and audits which allow the Director to grant a delegation.
Tauranga Gliding Club asks that advanced glider pilots may be able to count 50% of their aeroplane time rather than just 10%.
Civil Aviation Authority response is that this submission will be used when developing the Advisory Circular to the appropriate rule Part.
Tauranga Gliding Club summarises that the NPRM "will not affect the administration and decision making capacity of clubs. The only perceived difference ‘by us’ is that we will incur more costs, more bureaucracy and control to an otherwise freedom loving sport. ….. What is wrong with the present setup that it has to be replaced with such a large and complex system?"
Civil Aviation Authority response was that it was explained at the NZGA AGM that the Act required glider pilots to hold "aviation documents" or certificates, and Part 149 was the mechanism to allow the NZGA to issue these for glider pilots. The system described in the NPRM has also been simplified considerably.
Wellington Gliding Club "is aware of and fully supports the submission of the NZ Gliding Association on the proposed rule"
Civil Aviation Authority response was to note this support for the NZGA.
Wellington Gliding Club was concerned that the NRPM did not recognise club structure based on elected officials, the potential impost of additional costs on club operations, and the relationship between gliding clubs and the NZGA; and "considered significant work needs to be done on the proposed rule".
Civil Aviation Authority response has been to do the work necessary to recognise those concerns.
Wellington Gliding Club was concerned that the NPRM did not "recognise the need of Gliding Clubs as sporting organisations to market the sport in the interests of growth and development, community relationships and the sharing of the gliding experience. In particular the definition of gliding club operations relative to the potential development of ‘commercial gliding operations’ is far from clear in the proposed rule".
Civil Aviation Authority response was that Part 149 is for normal club operations, and that commercial gliding operations will be addressed in Part 115 - Adventure Aviation.
Wellington Microlight Flyers Club (Inc) pointed out two errors in the Advisory Circular.
Civil Aviation Authority response was that those points will be corrected during the development of the Advisory Circular for the appropriate rule Part.
List of consultants
- Helen Andrew & Terry Smith of Palmerston North
- Auckland Gliding Club
- Canterbury Microlight Aircraft Club (Inc)
- Co-ordinator Aviation Policy of the Ministry of Transport
- Hawkes Bay Microlight Club Inc
- Peter James of Timaru
- Richard Martin of Guam
- Micro Aviation New Zealand Limited
- The Microlight Aircraft Association of N.Z. (Inc)
- New Zealand Autogyro Association
- The New Zealand Gliding Association
- New Zealand Hang Gliding and Paragliding Association
- New Zealand Parachute Federation
- Rural Aviation (1963) Ltd
- South Canterbury Microlight Club
- Sport Aviation Corporation Ltd
- Tauranga Gliding Club
- Wellington Gliding Club
- Wellington Microlight Flyers Club (Inc)
Part 149 replaces a number of 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.
The Civil Aviation Authority concludes from this consultation that, having taken account of the submissions received on the NPRM, the majority of the aviation industry participants now favour the direction of this new Part. 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 1140.