Regulatory reform not much closer – comment
The last few weeks have been a spotty period for regulatory reform. First, CASA weighed in with 23 amendments to the CASR Part 145 maintenance regulations Manual of Standards, on which the ink was barely dry following its launch on June 26.
There’s no kind-hearted way to say this. The amendments clearly show that despite Part 145’s pachydermal gestation period, the Part 145 Manual of Standards when it was set in cement was rich in (to use CASA’s own words) confusion, inadvertent preclusion, inflexibility, uncertainty, unforeseen or unanticipated meanings, unintended prescriptions, vulnerability to change, lack of definition, incorrect referencing, typographic errors and omissions…. Yes! All of those weaknesses were actually acknowledged in CASA’s Amendments to Part 145 MOS.
These are extracts from each of the 23 amendments, or in some cases the whole amendment:
- “The mention of the CEO within subparagraph 145.A.70 (a) 1 of the Part 145 MOS has led to confusion as to who can sign off on the exposition, given the varied nature of organisation structures……………”
- “………….The intent of the provision was to require eight years’ maintenance experience for individuals who were to be authorised for the issue of a Certificate of Release to Service (CRS); to be aligned with the EASA Base maintenance certifying employee requirements….”
- “……..This has led to confusion with regards to the requirement specified ……….”
- “There has been inadvertent preclusion by the MOS of an AMO’s ability to authorise Category A Licence holders because they don’t have ratings on the licence; and inadvertent prevention by the MOS of an AMO’s ability to authorise holders of ICAO Annex I type foreign Maintenance Engineers’ licence………….”
- “Improved flexibility is required for CASA to more easily implement changes to the list of MELs & maintenance that a Cat A licence holder may be authorised to action.”
- “Flexibility is needed to authorise Cat A Licence holders for line maintenance tasks that CASA agrees are simple tasks.”
- “………The list of specialist maintenance fields for which CASA would issue approval at paragraph 145.A.30 (f) requires updating. Appendix I may require updating to reflect regulatory intent………
- AMOs may be required to provide maintenance services at locations not previously foreseen or anticipated, on a temporary basis……….
- …..Consequently the MOS refers to Subcontractor[s] in a number of places, whereas the safety outcomes required are independent of the type of arrangement used for the engagement.
- The wording of subparagraph 145.A.30 (k) 2. has resulted in uncertainty in situations where there are more than one regulatory authority in a country where an AMO is located.
- The Part 145 MOS provides at 145.A.60 (a) that an AMO must have an internal reporting system described as utilising ‘Just Culture’ reporting principles. However, Just Culture means different things to different people. CASA is revising the wording to use the term ‘fair and open reporting culture’.
- Paragraph (e) of Part 145 MOS Appendix III was not intended to prescribe Part 66 aircraft type training levels for specialist maintenance certifying employees………
- ……….The SMS Implementation Plan as approved is vulnerable to change by an AMO after its approval by CASA……….
- Uncertainty within the industry exists as to which of the provisions of section 145.A.37 correspond to Permitted Training as defined in the CASR dictionary, and in particular, for which regulation 145.010 defines the changes for, as being a significant change.
- Appendix II introduction can be simplified. The detail provided is a replication of legislative provisions better articulated in CASR Part 66.
- The Part 145 MOS definition of a main location should be clarified to include the location (or locations) that the applicant for Part 145 application nominates as being their primary permanent maintenance location;………
- Points for amendment or clarification of legislative intent as identified by Legal Services.
- The ability to provide facilities to control the environment in circumstances such as a dust storm is impractical……….
- There is concern that the period of time it takes CASA to provide the exclusion removal will cause a period of capability reduction for the AMO.
- For Permitted Training, an AMO must have exposition procedures for the training and the employees authorised under 145.A.37 (b) & (c) must have been trained in accordance with those procedures. There is no MOS provision to ensure this.
- Category A task training may be provided by either the employee’s AMO or by an ATO, as indicated in paragraph 145.A.35 (n); paragraph 145.A.35 (p) omits this provision………..
- The Part 145 MOS currently requires that an AMO must have procedures to ensure that if anything in ICA is identified as; or is reasonably believed to be inaccurate, incomplete or ambiguous, then the AMO must communicate the problem to the author of the ICA. However in many cases the party responsible for the ICA will be the CAMO that contracted the AMO for that maintenance. Industry requests that the AMO may communicate the problem with the CAMO if appropriate.
- Minor requirements for correction of referencing, typographic errors and omissions are identified for correction at this opportunity.
Now really folks, we’re not being picky for the sake of being so, but let’s not forget that way back in history it was decided (to the horror of the CASA lawyers of those days) that manuals of standards would be classified as “disallowable documents.”
The philosophy behind this was that MOSs were effectively another layer of regulation, quite contrary to the intent and expectations of the regulatory reform program (RRP). The reason for that decision was that they would contain rules which could be broken, that there were penalties for breaking those rules, and that the parliament was therefore not about to let anybody create such rules without exposure to parliamentary scrutiny.
Alas, it’s therefore the fate of disallowable documents (including MOS amendments) to spend 15 working days tabled at the House of Reps tabling office at Parliament House. Frankly, I think my English teacher would have torn up the Part 145 Manual of Standards in front of the entire class, for an effort like that.
But before we move on, let’s look at item 11 above, which seems to us just a little surreptitious.
The Part 145 MOS provides ….. That an AMO must have an internal reporting system described as utilising ‘Just Culture’ reporting principles. However, Just Culture means different things to different people. CASA is revising the wording to use the term ‘fair and open reporting culture’.
That seems plain disingenuous. The phrase “just culture” does not mean “different things to different people.” It means exactly the same thing to pioneers of the concept – people like Bob Helmreich, James Reason, Patrick Hudson, and (closer to home) Rob Lee and Ken Lewis. If in doubt about the concept’s meaning, look it up.
What a just culture is not, is one in which a regulator with enforcement responsibilities and powers demands that industry participants write a legally enforceable specification in their operations manual, compelling staff to provide a copy to CASA of each and every report they provide to the ATSB. In this context ‘a fair and open reporting culture’ may have a different meaning altogether.
That amounts (in some cases) to making it illegal not to provide a signed confession to an organisation that has become quite skilled in shutting down AOC holders’ operations while it searches their records for “evidence” to support its decision, and can lead to a subjective decision that somebody is “not a fit and proper person.”
There’s also been serious unrest in the flight training camp about the current regulatory reform event: the activation from December 4 of CASR Part 61 covering personnel licensing, which certainly does appear to mean “different things to different people.”
Here’s the lament of an experienced (18,500 hours) instructor and flying training school operator that typifies industry concerns:
I have been told the following and think that if I understand correctly I will probably have the following costs. Given that I hold the following approvals:
- Approved testing officer
- Testing approval for instructor rating (or Grades)..
- Instructor training.
- Instrument rating testing
- Night VFR rating testing.
- Training of instructors for instrument rating training approval.
- Training of instructors for twin endorsement training approvals.
- Multi engine class rating.
- Multi engine type rating.
- Single engine class rating.
I am led to believe that all these items are going to have to be proficiency checks separately.
Amortised over two years – annual cost
“Is this added safety, or is this bureaucracy gone mad? I actually hold these operational ratings, class ratings and type ratings, and I use them regularly.
“I test for night VFR. Do I have to be reviewed for NVFR expertise when I’m conducting tests and handing out these ratings on a regular basis?
“I fly single engined aircraft and check my instructors to line, I conduct instructor rating training in single engine aircraft, I pass instructors out into the industry in single engine aircraft. Do I really have to do a separate check for single engine class type?”
In her widely-circulated letter to CASA director John McCormick, this instructor has plenty more to say and plenty more questions to ask, and she’s far from being the only person who’s confused and frustrated at the unwillingness or inability of field officers to provide interpretations of these rules.
One question that is repeatedly raised, is where on earth CASA thinks it’s going to find flying operations inspectors or flight test examiners whose experience and recency is comparable with the people they will be testing?”
Another is the flood of amendments, which outstrips even Part 145, and the fact that the Part 61 MOS (where all the hooks and barbs will eventually be found to be buried) is still unpublished at a time when CASA is preparing for its Christmas break:
“CASA told us in Canberra last week that there were now 300 amendments to Part 61, so much of this might well be out of date. But the question is, “would 300 amendments have been made if a mass email had not gone out?”
“And how can one do anything about “consultation” when the MOS hasn’t yet been exposed to it?”
Nor can this flying school operator be accused of identifying problems without proposing solutions. She and numerous other flying school operators, both fixed and flutter wing, are highly critical of CASA’s apparent lack of attention to product quality sampling:
“Safety will not be enhanced by all these new regulations for a very simple reason; nobody in CASA is sampling the present apples in the system who are being let out into the industry en masse. By sampling, I mean going flying with the new PPL or CPL or new instructor or new instrument rated pilot within one month of receiving their licence or rating.
“The very idea of sampling the barrel is totally foreign to the CASA hierarchy which appears to me to be into compliance, more rules and more compliance and more obligations which just because they are written into the legislation means that all will be well!”
Similar concerns came from the helicopter training industry, where new rules are being interpreted as requiring (in one example) the CFI to undergo separate flight reviews on each helicopter type and for each operating endorsement or rating. That CFI believes this amounts to a requirement for flight reviews on each aircraft type on the AOC, for each endorsement or approval. That means that in a fleet of 11 helicopter types a pilot with six separate approvals would be required to undergo 66 flight reviews over two years, or an average of 33 per annum.
At this point Mr McCormick wrote to all Australian pilots warning that: “Change can be perceived as threatening, particularly if unsubstantiated rumours purporting to be fact are taken on face value.” Sound familiar? That, it seems, is a polite way of saying you’ve all been misreading part 61. What a bunch of dolts we must all be! We invite CASA to share the censure for any failure to decipher the intent of the new regulations. They simply don’t meet the plain English readability specs they once boasted, and they never will. Worse, they contain hidden barbs that are so obvious that they must be deliberate.
The same flying instructor however has identified what seems to be a commonsense transpacific approach to the same issue.
Good news for (USA) flying instructors
The FAA has made a rule by which flying instructors will meet the 24-calendar month flight review requirements if they pass a practical test for issue of:
- a flight instructor certificate,
- the addition of a rating to a flight instructor certificate,
- a renewal of a flight instructor certificate, or
- the reinstatement of a flight instructor certificate.
The FAA says:
“This rule also clarifies that the generally applicable recent flight experience requirements do not apply to a pilot in command who is employed by a commuter or on-demand operator if the pilot in command is in compliance with the specific pilot in command qualifications and recent experience requirements for that commuter or on-demand operator.”
See HERE for more detail.
The FAA says it is adopting this rule without prior notice and without prior public comment as a direct final rule because it alleviates unnecessary burdens by expanding the exceptions to a flight review, removes redundant recency requirements for pilots flying for certificated operators under part 135, and provides other benefits under the FAA system.
Now let’s compare the flight review rules in other jurisdictions. The Kiwis do it in 370 words, and the FAA in 539 words, mainly because it also deals with simulators as well. The major difference is that in both cases they require just one biennial flight review, and we haven’t yet been able to decipher the Australian requirement to compare it with this because everybody has a different view on what our Part 61 means in their own situation.
61.39 Biennial flight review (New Zealand CAA)
(a) Except as provided in paragraph (b), the holder of a pilot licence issued by the Director under the Act and this Part must not exercise the privileges of the pilot licence for longer than 24 months from the date of the issue flight test for the pilot licence unless the holder—
(1) has successfully completed a biennial flight review under paragraph (c) within the previous 24 months; or
(2) for a glider pilot licence, has completed a biennial flight review conducted by a gliding organisation within the previous 24 months.
(b) The holder of a pilot licence issued by the Director under the Act and this Part is not required to complete a biennial flight review required by paragraph (a) if the holder—
(1) meets the flight crew competency check requirements prescribed in Part 115, or Parts 119 and 121, 125 or 135 that are applicable to the holder’s pilot licence; or
(2) meets the agricultural currency requirements prescribed in rule 61.707; or
(3) holds a current Category A, B, or C flight instructor rating.
(c) A biennial flight review must—
(1) be conducted by an appropriately qualified flight instructor; and
(2) consist of flight instruction to review those manoeuvres and procedures applicable to the pilot licence privileges the holder wishes to exercise; and
(3) be in accordance with standards acceptable to the Director.
(d) A flight instructor conducting a biennial flight review must—
(1) enter an appropriate record in the pilot’s logbook immediately after the flight review has been satisfactorily completed and include the following information:
(i) the pilot licence type to which the flight review relates:
(ii) the date on which the flight review was completed:
(iii) the date on which the flight review ceases to be effective:
(iv) the name, flight instructor category, and CAA client number of the person conducting the flight review; and
(2) complete the appropriate CAA Biennial Flight Review Form and submit a copy of the completed form to the Director and to the pilot.
(e) A pilot who completes the biennial flight review required by paragraph (a) within 60 days before the date on which it is required, is deemed to have completed the biennial flight review on the required date.
61.56 — Flight review – US FAA.
(a) Except as provided in paragraphs (b) and (f) of this section, a flight review consists of a minimum of 1 hour of flight training and 1 hour of ground training. The review must include:
(1) A review of the current general operating and flight rules of part 91 of this chapter; and
(2) A review of those maneuvers and procedures that, at the discretion of the person giving the review, are necessary for the pilot to demonstrate the safe exercise of the privileges of the pilot certificate.
(b) Glider pilots may substitute a minimum of three instructional flights in a glider, each of which includes a flight to traffic pattern altitude, in lieu of the 1 hour of flight training required in paragraph (a) of this section.
(c) Except as provided in paragraphs (d), (e), and (g) of this section, no person may act as pilot in command of an aircraft unless, since the beginning of the 24th calendar month before the month in which that pilot acts as pilot in command, that person has—
(1) Accomplished a flight review given in an aircraft for which that pilot is rated by an authorized instructor and
(2) A logbook endorsed from an authorized instructor who gave the review certifying that the person has satisfactorily completed the review.
(d) A person who has, within the period specified in paragraph (c) of this section, passed a pilot proficiency check conducted by an examiner, an approved pilot check airman, or a U.S. Armed Force, for a pilot certificate, rating, or operating privilege need not accomplish the flight review required by this section.
(e) A person who has, within the period specified in paragraph (c) of this section, satisfactorily accomplished one or more phases of an FAA-sponsored pilot proficiency award program need not accomplish the flight review required by this section.
(f) A person who holds a flight instructor certificate and who has, within the period specified in paragraph (c) of this section, satisfactorily completed a renewal of a flight instructor certificate under the provisions in §61.197 need not accomplish the one hour of ground training specified in paragraph (a) of this section.
(g) A student pilot need not accomplish the flight review required by this section provided the student pilot is undergoing training for a certificate and has a current solo flight endorsement as required under §61.87 of this part.
(h) The requirements of this section may be accomplished in combination with the requirements of §61.57 and other applicable recent experience requirements at the discretion of the authorized instructor conducting the flight review.
(i) A flight simulator or flight training device may be used to meet the flight review requirements of this section subject to the following conditions:
(1) The flight simulator or flight training device must be used in accordance with an approved course conducted by a training center certificated under part 142 of this chapter.
(2) Unless the flight review is undertaken in a flight simulator that is approved for landings, the applicant must meet the takeoff and landing requirements of §61.57(a) or §61.57(b) of this part.
(3) The flight simulator or flight training device used must represent an aircraft or set of aircraft for which the pilot is rated.
So in New Zealand or the USA the flight review requirements are crystal clear. However at this time at least there is no comparable document that can be used to make a comparison; there’s a Part 61 that already requires about 300 amendments, and there’s a MOS that’s somewhere out there and will almost certainly require instant amending. Hence the confusion.
On Monday CASA held briefings at each capital city to try to clear up some of the concerns. ProAviation attended the Melbourne briefing which opened with a youtube feature in which Mr McCormick explained in advance why the RRP will still be with us for several more years.
Unfortunately the session didn’t fully reassure all 200 attendees as ProAviation’s handwritten notes record:
“The two-member CASA Vic Tas team of safety advisers did their best but there are still lots of information gaps. The whole concept is “to align with ICAO,” hence the numbering, but that’s where any similarity ends. There were also lots of excuses as to why it takes years to write and get parliamentary approval – it’s always somebody else’s fault.
“From an instructor point of view, it’s much more restricted. An instructor can’t do AFRs independent of a 141 or 142 organisation. Only examiners can do AFRs but don’t know who is qualified and at what levels to become an examiner. Somebody raised the question of “expired” licenses and ratings (due no medical) and it was stated that that shouldn’t be a problem, required consultation with a member of the congregation (maybe another CASA person?) but both were unsure on these types of matters.
“It was pointed out on PP (power point) that all training had to be conducted under Part 61 ie. 141 and 142 organisation with instructors. But you can bypass that using a RAAus-issued recreational pilot certificate and get it changed into a new part 61 RPL by an instructor. This opens up the opportunity for RAAus instructors without even a PPL to conduct lots of training with RAAus newbies, and for these to convert to PPL by meeting enough nav requirements as RAAus certificate holders. That needs to be put to CASA in writing.
“Another question was on doing an AFR as holder of S/E and M/E ratings; do you need to fly both for the currency AFR? They weren’t able to answer. It was suggested from the audience that they fly the twin and close down one engine, and should then qualify. There was one ‘troublemaker’ who had genuine gripes but could have articulated them better.
“If I were managing the RRP I’d set up a Frequently Asked Questions on the web site.”
Now that is a good idea. Let’s hope it’s not disqualified for that reason.
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