Part 19 - Consultation
Note: This statement does not form part of the rules contained in Part 19. 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.
Notice of Proposed Rule Making
To provide public notice of, and opportunity for comment on the proposed new rules, the Authority issued Notice of Proposed Rule Making 96-14 under Docket Number 1216 on 9 December 1996. This Notice proposed the introduction of Civil Aviation Rules Part 19 to provide rules to ensure a smooth transition from the Civil Aviation Regulations 1953 and the Civil Aviation (Security) Regulations 1989 to the Civil Aviation Rules system.
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 1216 NPRM
1. General comments on the NPRM
From the 17 submissions received, there were 3 general comments. One commenter supported all the submissions made by the Helicopter Division of the Aviation Industry Association. Another made no comment on the NPRM.
One commenter made an oral submission that Part 19 should be of finite duration. The commenter considered that the transition nature of the rule and the short consultation period permitted made Part 19 unsafe as a permanent document.
CAA response: Part 19 is a mixture of rules, most of which are temporary and will be consulted on in the near future as amendments to other existing rules. Some rules are of a permanent nature such as 19.5, Civil Air Ensign and Subpart I on security. These rules will remain in the existing location subject to petitions for further amendment. Part 19 is will be reconsulted and renamed a General Administration Part when the transition provisions are removed from it. The CAA is fully aware that some regulations carried over in Part 19 require further research and development and will be addressing these as part of a continuous improvement programme.
2. Specific comments on the NPRM
Specific comments received from the 17 submissions are discussed as follows:
2.1 19.9 Control of access
Two commenters considered that this rule needed limits to protect persons from abuse of power by authorised person. Concern was expressed that an authorised person could control entry into a private home.
CAA response: The CAA notes the concern expressed, however the rule simply carries over an existing power under the Civil Aviation Regulations 1953. There have been no instances of abuse of power. The rule has been amended to ensure that authorised persons may only exercise such powers for the purpose of carrying out the functions of the Director under the Act. The CAA also notes that entry by the authorised person into a private home would require a warrant issued in accordance with section 24 of the Act.
19.17 Airways services certificates
This rule has been carried over from regulation 149A(1) until Part 172 comes into force.
2.2 19.51 Prohibition of flying foreign aircraft
One commenter submitted that a foreign aircraft should only be prohibited from flying if the aircraft suffers damage and the aircraft is found to be unairworthy.
CAA response: The CAA has removed this rule on legal advice as it conflicts with section 21 of the Act. Such prohibitions will be dealt with solely in accordance with section 21. Rule 19.53 now becomes 19.15.
2.3 19.53 Operation within New Zealand of foreign aircraft
Three commenters expressed concern that 19.53 rewrites regulation 20 of the Civil Aviation Regulations 1953 in such a way that entitles the CAA to impose restrictions and conditions on a foreign aircraft from an ICAO contracting State over and above that State’s regulatory requirements and in excess of the CAA’s own domestic requirements.
A further submission suggested substituting the power to require compliance with civil aviation rules for the power to impose conditions necessary in the interests of aviation safety.
CAA response: Subject to the overriding guideline of the Civil Aviation Act to achieve safety at reasonable cost, the CAA has always had the power to impose operating limitations on aircraft used for aerial work or air transport operations. Rule 19.53 continues this power.
The CAA agrees that the aim is to achieve an equivalent level of safety for domestic and foreign registered aircraft performing hire or reward operations. This cannot be achieved simply by requiring compliance with New Zealand CAR.
The responsibility for airworthiness of foreign registered aircraft rests with the State of registry. The CAA is not always able to satisfy itself that the foreign State is performing this role or that the operator is complying with the requirements of that State. A requirement to simply comply with the New Zealand CAR is not appropriate in terms of airworthiness to a foreign registered aircraft. Conditions requiring compliance with the airworthiness requirements of the State of registry are often necessary and it is critical that these conditions are enforceable in New Zealand. Formerly this would be dealt through conditions on an aerial work certificate. This certificate is no longer available hence the powers under regulation 20A needed to be broadened in rule 19.53.
2.4 19.103 Agricultural operators – statistical returns
One commenter submitted that paragraph (5) is impractical. They suggest that departure aerodrome is not a useful statistic for agricultural operators who will make many take offs from farm strips each day. The commenter states that the use of aerodrome is inappropriate as agricultural operators seldom use licensed aerodromes.
CAA response: The CAA agrees that paragraph (5) is impractical. The rule has been amended to require reporting of the location of each aerodrome used during the reporting period. If an aerodrome is used many times it need only be reported once. The term aerodrome is defined in Part 1 and includes farm strips.
2.5 19.105 Pilotless aircraft
Two commenters proposed that the conditions and requirements for the operation of pilotless aircraft should only pertain to the persons operating the pilotless aircraft and not restrict other airspace users.
CAA response: The power to impose conditions in 19.105(3) has been amended to clarify that conditions are to be placed on the operator of the pilotless aircraft.
2.6 19.107(a) and (c) Offshore helicopter operations
Three commenters made submissions on this provision. In summary the commenters consider that the requirement to use only twin engined helicopters for the carriage of passengers for hire or reward beyond 10 nm from shore is unreasonable. The commenters submitted that single engined turbine helicopters provide an equivalent level of safety if fitted with flotation and survival equipment. Comment was also made that the requirements in this rule should remain in Part 135 and that the submission made on that Part should be incorporated.
CAA response: The intention of paragraphs (a) and (c) is to specify performance requirements for helicopters carrying passengers for hire or reward beyond 10 nm from shore. It is not the object of this rule to mandate twin engined helicopters for such operations. Rule 135.81 prohibits the use of single engined aircraft carrying passengers for hire or reward beyond 10 nm from shore. This issue has been fully canvassed and considered in the consultation process under Part 135.
This issue has caused considerable debate and will continue to do so. The CAA agrees that the issue should not be dealt with in Part 19 and did not intend to reopen debate on the issue in the NPRM. Rule 19.107 simply carries over performance requirements from the previous Civil Aviation Safety Order.
2.7 19.107(b) Offshore helicopter operations
Three commenters made submissions on the requirement to wear life jackets. They considered the requirement unreasonable as fixed wing aircraft need only have life jackets readily accessible. The requirement to wear life jackets subjects the life jackets to continuous risk of damage.
CAA response: The CAA agrees and has removed the provision. The requirement for lifejackets is now that prescribed in rule 91.525.
2.8 19.153 IFR procedures
One commenter suggested the rule should include the power to cancel IFR procedures.
CAA response: The CAA considers the power to prescribe IFR procedures under 19.155(c) includes the power to amend and revoke such procedures.
2.9 Subpart E IFR operations: GNSS
One commenter states :
"The way in which these proposed GNSS rules are being introduced to the system is far from desirable. I thought the idea was to simplify the paperwork processes and have all non urgent rule making items subject to consultation through the NPRM process before a final rule is made. In this case the Authority has made an addition to CASO 1 detailed in AIC 9/97 as becoming effective 27 February 1997, over 6 weeks after the close off of the comments on the Part 19 NPRM. The transfer of an item from the regulations to the rules before the regulation is even valid is far from full consultation. It is grossly unfair, and probably illegal, to force industry through a 3 document paper chase during the Christmas/New Year period. If a "wine box" enquiry were to be held into Part 19 the Authority’s position would be far from favourable."
CAA response: The amendment to CASO 1 was an item of urgent rule making. Regulation of GPS equipment used on IFR operations has been long overdue. A number of operators have replaced navigation equipment using ground based navigation aids with GPS equipment to cope with decommissioning or failure of ground based aids. The CNS/ATN user group has been requesting regulation of GPS equipment used on IFR operations for some time. Consequently the CAA considered timely introduction of legislation a priority. An amendment to CASO 1 was the only available legislative vehicle to achieve this.
The CAA rejects any suggestion that it has acted in an illegal manner. Amendments to the Civil Aviation Safety Orders are made under the authority of section 8(2)(b) of the Civil Aviation Amendment Act 1991. This empowers the Minister to make amendments to "all orders, notices, requirements, circulars, and other publications issued under regulation 8A of the Civil Aviation Regulations 1953." The Minister has delegated this power to the Director under sections 22 and 23 of the Civil Aviation Act. The amendment to CASO 1 was within the powers of the Director and all procedural requirements were complied with.
As CASO 1 will expire on 31 March 1997 it was necessary to transfer the requirements for use of GPS equipment on IFR operations into the Civil Aviation Rules. A number of deficiencies in the CASO 1 amendment were identified and addressed in the NPRM for Part 19 which was sent out for industry consultation. The CAA agrees that the timing of Part 19 was unfortunate but the nature of the Transition Rule gave no option. Part 19 could not be published until it was clear which Civil Aviation Rules were not going to make the 1 April deadline. Part 19 was then drafted to carry over existing legislation to cover any legislative "gaps". Hence the NPRM could not be published until December. In the meantime it was essential that CASO 1 be amended to permit IFR flight using GPS equipment as soon as possible.
2.10 19.205 Pilot qualification
One commenter suggested that approved persons as well as flight examiners be able to sign off GPS endorsements.
CAA response: In Civil Aviation Rules Part 1, Definitions and Abbreviations there is provision for a Flight Examiner to be an approved person.
A second commenter asked whether the pilot qualification requirements apply to a flight management systems as well as stand alone GPS equipment.
CAA response: Anytime where it is planned to use the Flight Management System to conduct a GPS Approach then an appropriate pilot logbook endorsement is required relating to the equipment used for that GPS instrument approach.
Two commenters see no reason to have to demonstrate competency on each make and model of GPS equipment to be used. They argue that such requirements are not made for ground based navigation aids or by the US FAA.
CAA response: CAA’s experience to date has shown that this requirement is needed for TSO’d GPS receivers used for instrument approaches. The differences in operating software between different models even from the same manufacturer and the loose operating specification in TSO C129 have dictated this CAA position. The New Zealand legal environment compared to that of the USA is such that reference to the US FAA in this regard is not directly relevant.
2.11 19.207 Primary means GPS operations
Two commenters question the need for 2 sole means back up navigation systems to the GPS equipment.
CAA response: For Air transport Operations there is no change of requirement. For IFR GPS operations in the NZ Flight Information Region GPS approval is for a Primary Means Navigation System only; hence the requirement specifying dual Sole Means Navigation System back-up to the GPS equipment.
For private operations under Part 91 the requirement is for a single sole means navigation system as a back up to the GPS receiver. Part 19 is amended to reflect this distinction.
The same commenters question the need for RAIM prediction prior to take-off.
CAA response: This requirement is considered to be part of the normal pre-flight preparation in checking that the proposed instrument approach aid at destination will be available. (Similar to checking NOTAM on VOR/NDB availability.)
One commenter considered that pilots should always be required to cross check way point positions against charts when using a GPS database. The commenter considered the such a requirement as a matter of education rather than requiring a rule.
CAA response: The CAA agrees that the cross check is always necessary and has amended the rule to reflect this.
One commenter considered there was no need to report RAIM warnings to ATC as RAIM was not necessary for en route navigation. The commenter did consider ATC should be informed if the GPS goes off line, operates in DR mode or simply does not receive the signal and another appropriate means of navigating is not available. This applies to 19.209 as well.
CAA response: RAIM is necessary for en-route navigation as ATC are relying on the GPS performance being monitored by RAIM so they can apply lateral separation between aircraft with some surety of the integrity of the GPS navigation solutions.
2.12 19.209 Sole means GPS operations
One commenter considers that the requirement to notify ATC of a RAIM warning or DR operation is only necessary in controlled airspace.
CAA response: The rate of degradation of GPS navigation performance is such that it has been called "A gracious failure". For this reason an allowance of 10 minutes without RAIM availability is allowed before there is a requirement to notify ATC. With aircraft likely to enter controlled airspace from uncontrolled airspace this requirement to notify ATC at all times remains.
2.13 19.213 GPS derived distance information
One commenter considered RAIM was not necessary for GPS distances as experience has shown cross references with DME distances are similar when slant angle is taken into account.
CAA response: Probably correct, however if DME is available for cross checking then GPS distance isn’t required. When relying solely on GPS distance information the GPS RAIM function is the only integrity check available to the pilot and ATC.
Another commenter suggested that the words "to ATS" be inserted after the words "may provide GPS derived distance information" to clarify to whom distances are provided.
CAA response: The CAA disagrees with this submission as distance information may be given to other aircraft as well as ATS.
Two commenters submitted that exclusion of GPS distances on ILS/DME, LLZ/DME approaches seems unreasonable because the error allowed for precision and non precision approaches is the same.
CAA response: ILS/LLZ DME sites are not incorporated in the GPS data base as TSO C129 only makes provision for non-precision approaches. GPS distances cannot be accepted from pilot inserted waypoints on an instrument approach as the GPS receiver cannot operate in the approach mode (i.e. .3 nm full scale CDI deflection) unless the instrument approach is inserted in the flight plan from the GPS database.
2.14 19.215 Minimum flight altitudes
One commenter queried the meaning of "limiting minimum crossing altitude".
CAA response: The CAA considers this is self defining and further consultation has resulted in the commenter’s agreement. A limiting minimum crossing altitude is the minimum safe altitude that must be achieved at an intersection of two areas of airspace where the minimum safe altitude of the area departed is lower than the minimum safe altitude of the area entered.
2.15 19.217 Flight on unevaluated routes
One commenter stated the requirement to have continuous radar monitoring by ATC for random flight routing below flight level 130 should be reconsidered as it prohibited such flight in areas where significant benefits were possible.
CAA response: Until such time as GPS is approved for use as a Sole Means Navigation System in the NZ Flight Information Region this requirement must remain in force. If there is a demonstrated requirement for a particular GPS route outside of radar cover the operator may consult with the Airways Corporation of New Zealand for evaluation of such a route.
2.16 19.219 Flight plans
One commenter stated that the requirement for a pilot GPS qualification to enter "G" for en route use of GPS under IFR is unreasonable.
CAA response: The CAA agrees and this prerequisite is no longer required.
2.17 19.251 Transponder mandatory airspace
One commenter submitted that the list of transponder mandatory airspace is out of date.
CAA response: The CAA agrees and the rule is amended accordingly. The list was correct at the time of publication, however CASO 1 has since been amended.
2.18 19.255/257 Designation of airspace/prohibited and restricted areas
Five commenters stated that provision should be made requiring the Director to consult with affected parties and undertake an aeronautical study before designating airspace and declaring restricted or danger areas. One commenter emphasised that the first priority should be to remove a hazard if possible rather than declaring a restricted or danger area.
CAA response: The CAA agrees and a consultation requirement has been included for the purposes of the transition rules. A more complete consultation procedure will be contained in Parts 71 and 73 which will deal with designation of airspace and restricted and danger areas.
2.19 19.323 Records
One commenter considered the requirement to hold records to be incorrect. It should be a period of 7 years as per NZCAR D.6 8.2(b)(ii).
CAA response: The CAA agrees and has amended the rule accordingly.
2.20 19.333(c)(3)(ii) Release notes [Final rule 19.321]
A commenter submitted that responsibility to provide evidence as to an authorised alternative product is a maintenance or manufacturing function, not a supply organisation function.
CAA response: The CAA does not agree. If a supplier provides a product that is an alternative to that required it is the supplier’s responsibility to provide evidence that the product is an approved alternative. The supplier is in a much better position to provide such evidence than the maintenance engineer or maintenance organisation.
2.21 19.333(c)(4)(iv) Release notes [Final rule 19.321]
A commenter submitted that components may be released with part life left to run. In that case the hours left to run will be quoted. The commenter considered that the finite life of the component is an owner/operator responsibility. Similarly the shelf life is a maintenance responsibility.
CAA response: The CAA agrees with the comments made but does not consider the content of the rule requires amendment. The rule requires procedures to provide information regarding the finite or shelf life. While responsibility for complying with the finite or shelf life does not rest with the supply organisation, the provision of the information regarding finite or shelf lives does.
2.22 19.357 Airport identity cards
Two commenters requested that pilot licences and other forms of ID should be acceptable as ID. Pilots who do not frequently use airports and do not hold airport IDs should be able to park and move between secure and unsecured areas.
CAA response: The CAA agrees that pilot licences should be acceptable as ID and considers the wording of 19.357(g)(4) allows this at present.
2.23 19.403 Instrument approach training requirements
One commenter stated the proposed rule appears to relate to CAT 1 ILS approaches and should be headed accordingly.
CAA response: The CAA agrees. This rule has been moved to an amendment of Part 61 as this fits more appropriately within the requirements for an instrument rating.
2.24 19.403 Air traffic controller’s duty time limitation [New final rule]
This rule has been carried over from regulation 149F as a interim measure. The provision was to be covered in Part 172, however it has been omitted subject to further consultation with affected parties.
2.24 19.405 Test pilots
One commenter considered commercial pilots should be able to act as test pilots after routine or unscheduled maintenance on aircraft.
CAA response: Test pilots were not intended to be required to test aircraft after maintenance. As maintenance includes modification by definition the reference to modification has been removed.
2.25 19.407 First of type authorisation
One commenter stated that provision needs to be made for pilots to fly aircraft without type rating in circumstances other than for first of type aircraft. An example is where there is no pilot in NZ available to give the rating. Also it may not be the holder of a New Zealand licence issued under Part 61.
CAA response: The CAA agrees and has amended the rule accordingly. The requirement to be an instructor to be authorised to fly without a type rating has been included as only an instructor may conduct type ratings for other persons. Foreign pilots with an appropriate type rating may have their licences validated under Part 61.
Part 19 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, although areas of difference remain, the majority of the aviation industry participants 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 1216.