Welcome to the General Aviation Advocacy Group of New Zealand

A proposal to challenge the new CAA levies

By now, operators will have received a letter and information booklet from the CAA detailing the new safety levies that will take effect from 1 July 2017. These levies have been introduced despite efforts by a number of individuals and organisations to enlighten the CAA and Minister of Transport of the failings in the consultation process, as well as the inequities in the methodology adopted.

Immediate financial implications

The levies will be introduced across two financial years (2017-2018 and 2018-2019) with 50% of the full rate payable in the first year and 100% payable in the second year and beyond. For the purposes of analysis, this article is based upon the full levy rate payable and ignores the first year’s sugar-coated Trojan horse.

Certificated operators will no longer be charged at an hourly rate by the CAA for routine inspections and monitoring. They will instead be levied at varying rates as outlined in the following table:

Sector Full levy rate
Part 115 – Parachuting $1.60 per descent
Part 121/125 – Passenger Air Transport $5.50 per flight hour
Part 135 – Passenger Air Transport $6.50 per flight hour
Part 137 – Agricultural Operations 0-10,000 tonnes per annum $0.87 per tonne
10,000 – 50,000 tonnes per annum $0.73 per tonne
50,000+ tonnes per annum $0.65 per tonne
Part 121/125/129/135 –
Freight Only
0-10,000 tonnes per annum $3.00 per tonne
10,000 – 50,000 tonnes per annum $2.60 per tonne
50,000+ tonnes per annum $2.00 per tonne

 

Apply the above figures to your operation to determine how much you will pay the CAA under this new levies regime. Compare this to how much you currently pay annually for routine audits and this will tell you whether you are immediately better or worse off.

The longer term consequences

These are numerous. A couple of the more obvious consequences are the loss to industry of the mechanism whereby demonstrated safety performance was financially rewarded via an increased audit interval and a corresponding reduction in CAA charges; and the fact that in moving away from an hourly rate-based method of cost recovery, the CAA has skilfully managed to put itself in a position where its operating costs can’t easily be compared with other similar organisations or government agencies.

Of far more significance, however, is the fact that throughout the process of setting these levies, the CAA was very clear that its objective was to more closely match the revenue recovered from each sector of industry with the expenditure it incurs in regulating that sector. This all sounds very nice as a concept, but an analysis of the CAA’s current sector-by-sector costs and budgeted future expenditure shows what full cost recovery might look like, and the ramifications for commercial general aviation become immediately apparent:

  • Regulating commercial general aviation accounts for 23% of the CAA’s total expenditure.
  • The CAA’s budgeted total expenditure for FY2019 is $42.818m.
  • This means that the CAA’s expenditure on the regulation of commercial general aviation will be 23% of $42.818m, which equals $9.848m.
  • Deducted from this is the CAA’s projected revenue from other sources (for example, fees and hourly rate charges) of $1.637m, which leaves $8.211m to be recovered from commercial general aviation by way of levy.
Sector Historic percentage of total cost of commercial general aviation audit oversight Share of $8.211m to be recovered if 100% cost recovery principles applied Levy rate required to achieve 100% cost recovery
Part 115 – Parachuting 11.3% $927,843 $11.94 per descent
Part 121/125 – Passenger Air Transport 11.6% $ 952,476 $25.15 per flight hour
Part 135 – Passenger Air Transport 25.4% $ 2,085,594 $29.78 per flight hour
Part 137 – Agricultural Operations 34.7% $ 2,849,217 $3.99 per tonne
Part 121/125/129/135 – Freight Only 17.0% $ 1,395,870 $13.75 per tonne
TOTAL 100.0% $ 8,211,000

 

In terms of the way the Government sets fees and charges, there is nothing to prevent the CAA moving to a 100% cost recovery methodology. You will be able to assess the impact on your business, but it doesn’t take rocket science to also imagine the implications for the entire commercial general aviation sector.

Can this be challenged?

Yes it can. Four avenues have so far been identified through which various aspects of this levy can be subjected to scrutiny. These range from the veracity of the consultation process, through to the selective targeting of the levy, its longer term implications, and compliance with government guidelines and the Civil Aviation Act itself.

This isn’t going to be an easy process. It will involve significant research and analysis coupled with engagement in the political arena to maximise the chances of success. Any such challenge needs to be mounted now, before the levies are cemented in place.

The estimated cost to mount a credible challenge will be around $20,000.

The next step

If you have any questions, or would like to support the effort to overturn this parasitic threat to the future livelihood of commercial general aviation, please contact Qwilton Biel.

Phone:           (027) 493 5655

Email:            qwilton [at] biel [dot] nz

Client Satisfaction Surveys in a post-factual world…

The CAA is either living in a fools’ paradise and thinks all its customers are happy, or it is deeply afraid to ask them. We can’t think of any other reason why the CAA refuses to hire a neutral organisation and tell it go to the customers and ask some honest questions. We also have convincing proof that no company or organisation can rely on anything other than an independent monitoring of its customers.

Here’s why…

In January this year, we wrote to the Chairman of the CAA Board pointing out that the Authority engaged Colmar Brunton to undertake a client satisfaction survey in 1995 and 1998; five years later in 2003, the same research company carried out a similar survey. Since then, there have been no further CAA Client Satisfaction Surveys specifically targeting all CAA document holders. The 2003 survey’s results did not heap praise upon the CAA.

In his reply, the Chairman said:

“Your interest in surveys is topical as the CAA will shortly be repeating its flagship ‘Feel Safe’ survey conducted by Colmar Brunton. Management are currently planning on supplementing the survey, or even splitting its content, so that while retaining its prior focus on the CAA’s ultimate customer (the public) it also provides more information from the aviation sector”.

OK, it’s costing you $4.50 a minute. But do have a problem with me?

The Colmar Brunton “Feel Safe” surveys have typically only contained results from 300 to 400 respondents. We have written to the Chairman and asked that all CAA document holders be made aware of his planned consumer survey. But we reminded Mr Gould that this is just a consumer survey, and what is actually required is a CAA document-holder survey related to specific client issues, and promoted via the CAA’s email user database and Vector magazine.

Post-audit or inspection feedback to the CAA

In our letter to the Chairman, we pointed out that MoBIE has for many years operated a system in which, after every investigation, an inspector is required to send a client satisfaction survey to all parties involved. Something similar would be a valuable tool for the CAA Director for feedback about, to quote just one example, the knowledge and performance of auditors and the way they interact with aircraft operators and aircraft maintenance facilities. A client feedback system also provides useful information to senior managers of departments to gauge the performance of individual staff members as part of their yearly performance reviews.

The Chairman said:

“… at the end of each audit or inspection, the CAA already surveys the parties involved in order to gather information on their views on the effectiveness and efficiency of the regulatory intervention they have just been involved in. While that provides limited information about the performance of one regulatory function, we are interested in gathering a broader range of views to inform risk management and decision-making. Both the management and Board of the Authority recognize the importance of such information from the sector to inform our planning and improvement efforts. In part, this is one of the reasons we place so much importance on the relationship with representative bodies like the Aviation Community Advisory Group.”

We then sought to verify what the Chairman had claimed was correct – “the CAA already surveys the parties involved in order to gather information on their views on the effectiveness and efficiency of the regulatory intervention they have just been involved in”.

We asked a number of operators if what the Chairman claimed (or had been told by his officials) actually happened in practice.

  1. Did the Chairman’s statement have validity?
  1. Did operators feel comfortable providing feedback to the CAA when their AOC is at stake?

We believe the replies below speak for themselves, and we’d welcome further comments.

  • No, I’m not aware of any statement like that. Imagine if an operator criticised them at that point, they could be deemed not fit or proper and their AOC withdrawn or delayed when the auditors got back to Wellington. Yes there is a discussion, but who would dare to complain? It proves how out of touch the Chairman is.
  • I never had the auditors ask me how the audit went or what I thought of CAA. If you wanted a good audit report you would never consider expressing your thoughts on that issue. Ask the Chairman for some of the recorded comments.
  • No, I haven’t been asked for feedback (that’s not to say I haven’t given verbal feedback to auditors at a subsequent audit however!).
  • I am not aware of any formal feedback system. At one point during an audit, I found I was being asked the same questions at each audit such as “Is your fax number still xxxxxxxxx. Is your mailing address still xxxxxxxxx. Is your phone number still xxxxxxxx. When I’m paying over $4.50 PER MINUTE for CAA to ask me the same questions at each audit to which there was no change, I wasn’t happy. I suggested they send me an A4 sheet with those questions on it prior to the audit and I could go through and tick the boxes, thus saving valuable minutes. They thought that was a great idea but nothing was done.
  • I have never been asked at all, fair to say I have offered my opinion on a number of occasions regarding their efficiency levels, no one has ever asked me for it tho and I have undergone approx 25 audits over the years.
  • The last CAA audit that I went through was about 2 years ago for our former Part 145 maintenance organisation. There was certainly a discussion on how we viewed the conduct of the audit but our responses were very much along the lines of what you would expect of “the regulated” talking to “the regulator”. No matter how the CAA Chairman might like to dress it up, it is extremely difficult to get anyone whose livelihood relies on holding an aviation document to be critical (no matter how well intentioned or constructive) of the organisation that issues said document.
  • I am in full agreement for the auditing process to be outsourced, what a great idea, at least if this happened there would be no favoritisms by the auditors. It’s imperative that all operators record* audits.  In that way it keeps the auditors honest and semi under control.
  • Yes this is an interesting subject and I totally agree with the other comments.  After last year’s audit we received a survey, which I filled out with my own feelings regarding CAA.  But I then thought it wasn’t a good idea to return it as it may have been held against me.  So I never posted it. I am certain that industry is running scared of CAA and feel that there are “bully” tactics going on. CAA is determined to change the aviation industry to make it highly regulated to cover their own arses.  Hence industry is finding this hard to come to terms with.
  • A further point about commenting on audit skills etc is as long as they are sitting at your table you are paying for that time.  You want them in and out of your place as soon as possible so the audit doesn’t cost you an absolute fortune.  So no, we wouldn’t think there would be anyone out there brave enough to criticise the CAA openly and in front of the auditors, as it would make their lives a misery.

The Chairman also said:

“On the information theme, please note that management is also introducing a ‘balanced scorecard’ to improve the information available on organisational performance. While not yet complete, over the next 12 months you can expect to see information being sought from the sector and others to inform the assessment of matters of regulatory effectiveness, efficiency and regulatory burden”.

  • Record, in this context, means to “tape record”. The GAA recommends that all important dialogue you have with CAA personnel –  on your premises, over the telephone or at the CAA’s office – should be recorded on audio and/or video. Before making any recording, you should advise your intentions to the CAA personnel, ensure they agree to an uncensored recording and offer to provide them with a copy of it.

CAA Notices – The tentacles of regulation just keep growing longer

In mid-February, the CAA announced its intention to publish CAA Notices as a means of ensuring that “the regulatory framework remains responsive and adaptable to change.”

On the surface, these objectives almost appear noble. But when we peel back the layers, what emerges is a worrying erosion of the checks and balances that have underpinned aviation rule-making since the early 1990s.

A CAA Notice will be a mandatory stipulation of requirements and must be complied with. It will be reinforced by a rule, but the notice itself will be issued by the CAA rather than going through the rule-making process.

Parliament did not vote for this

When concerns were raised about the advent of CAA Notices without any consultation, the response from CAA management was that there is no proposal to consult on the concept of Notices because these are currently permitted under Section 28(5) of the Act.

Section 28(5) was inserted into the Civil Aviation Act in 2010 and does confer certain powers to impose requirements or conditions; however, some seven years later, the CAA is being somewhat cute in its interpretation of how far the law-makers (Parliament) intended these powers to extend.

One of the positives of our system of government is that it keeps records, and these very clearly show that:

  • In recommending amendment of the Civil Aviation Act to Cabinet, the Minister sought to grant the Director power to determine technical matters such as testing equipment, syllabi and examinations
  • Cabinet agreed to amend the Civil Aviation Act to provide for rules that delegate to the Director the power to determine technical matters, such as testing equipment, syllabi, and examinations
  • When introducing the amendments to Parliament for debate, the Associate Minister highlighted them as being about the power of the Director to determine technical matters under the Civil Aviation Rules.

Parliament intended the granting of powers to determine technical matters in a narrow range of areas. It never intended the establishment of a process where the CAA becomes the risk-definer, the solution-chooser, the rule-maker and the law-enforcer.

This entire CAA Notices concept is a flossed-up attempt by the regulator to twist the intent of the law-makers in order to extend its tentacles and shield itself from the scrutiny of its masters. Aviators will not have recourse to the MoT or Minister regarding the content of CAA Notices.

Rather than looking for mechanisms to increase its powers and subvert the checks and balances that exist, the CAA should be focusing on getting rules and rule amendments right the first time so that they progress through the existing process in a timely manner.

CAA funding review: Political leadership is now essential

Since our update last month, we’ve achieved much greater clarity around a few things:

  • The Minister of Transport, Simon Bridges, is still waiting for the final Cabinet paper and Regulatory Impact Statement on proposed charges.
  • He believes that these two papers are months away, not weeks.
  • He has given an undertaking that the Chairman of the Board will respond to our letter calling for independent and open and transparent analysis of the Regulatory Impact Statement, but told us that he doesn’t think such transparency is necessary.

So what does this all mean?

It is by no means certain that the new levies and other changes will occur in November as planned. This triennial review of charges is already running at least 12 months late. Some say that if there is no decision on changes before the end of the year, it will be very difficult to impose them until after the election.

We are quite happy with (and support) a number of the CAA’s proposed changes. We oppose only one of them: the proliferation of new levies on commercial general aviation. All the others are either unequivocally supported or backed with some reservations about their consistency with the user pays philosophy.

The GAA is opposed to the introduction of new levies because:

  • They are unfair and unjust – some sectors, notably GA commercial, will have to pay for audit and surveillance through the proposed new levy, while all other groups get this service for free.
  • Commercial GA will have to pay for educational, safety investigation/prosecution and safety promotion and implementation of rules under the levy arrangements, while all other sectors have these activities paid for by the levy on passengers.
  • Safety in commercial GA is highly vulnerable to increased costs – a recent statement by the CAA’s Deputy Director responsible for GA confirms this point, saying a recent survey of more than 600 helicopter pilots has shown cost-consciousness was a major safety issue for the group.
  • The CAA doesn’t need the money. It is extraordinarily well resourced, reporting reserves of more than $5m in the 2015 financial year.
  • Obedience to Treasury and Audit office guidelines for charging in the public sector is leading to an internationally uncompetitive industry, with the CAA’s hourly rate significantly in excess of the UK or Australia.
  • Levies are like taxes – they only increase. When the aviation industry is expanding, the CAA over-recovers – and if there is a a shortfall, charges are increased with government approval.

Last time, the CAA had some justification for a rate hike but on this occasion there should be only one recommendation and that is to reduce present charges because the Authority is rolling in money.

And that’s why the Regulatory Impact Statement is so critical.

Simon Bridges: Time for some serious attention

Simon Bridges: Time for some serious attention

If you get this high-level analysis wrong, things go really pear-shaped. We are surprised that the Government doesn’t see the RIS as a key part of managing its political risk – and there is significant risk if the analysis is wrong.

We know through our network that the hourly rate charges are doing a lot of damage. There is a commitment out there to bring in new equipment and technologies, but exorbitant CAA costs are having an impact. New Zealand is simply not always getting the best kit because CAA charges can be as high as $60k per aircraft and these charges must be paid up-front, before the aircraft is productive. So we get new aircraft, but perhaps not always with the best technology and safety benefits.

At no time did officials tell ministers that this would be one of the downside consequences.

We cannot understand why Simon Bridges is so quick to rule out any engagement with the industry on developing the RIS.  The CAA clearly understands (or has allegedly been told as much by an astounding 600 helicopter pilots in what appears to be a private survey) that commercial pressures are substantial in the sector.

So why aren’t the Ministry of Transport and CAA open to engaging independent and informed advice on the issue? This is the best way of managing the political risk.

Aviation safety is not some esoteric flight of fantasy by number-crunchers in gold-plated towers with water views. It is a very practical matter to which we all contribute, so why won’t Wellington officialdom accept we should have input into this critical paper? We have nothing to hide.

I am disappointed that, despite Minister Bridges’ commitment, the Chairman of the Civil Aviation Authority has chosen not to respond to my letter of mid-July on the RIS issue. Now I do know that The CAA’s apparent position is that it has made recommendations to the Minister, and that’s it. However, it also appears that the CAA is still having major input into the development of the RIS Why wouldn’t CAA want to put the best possible advice to the Ministry?

At the behest of the Auckland National Party MPs, we filed a formal complaint via Andrew Bayly, MP for Hunua. Its content has not yet been widely circulated, but we’ve done some more work on the impacts of all the changes proposed and concluded that the new levels of cross-subsidy are larger than the current ones.

The GAA believes that the Authority’s underlying strategy is aimed at taking our focus off its exorbitant hourly rates, and the escalation to a 100% cost recovery hourly rate of $466 per hour plus GST.

The real issue is benchmarking CAA charges so that they are internationally competitive. This would mean hourly rates of between $150 and $190 per hour and a medical application fee of no more than $80. Forget the Treasury and Audit Office guidelines; this is about making New Zealand’s aviation industry as attractive as possible, and that means safe and cost-competitive.

Our message to you: It’s really important to keep talking to your local MP, because sooner or later Minister Bridges will make a recommendation to his Cabinet colleagues.

Our message to Simon Bridges: It really is time to seriously consider and discuss our sector’s competitiveness, and that requires accountability and leadership.

 

♦ If your experience with the CAA – on any issue – has been disappointing, don’t keep it to yourself and them. Please share it with fellow aviators. Email admin [at] caa [dot] gen [dot] nz. Your privacy is assured.

Health and Safety: The plain truth

There are dozens of hazards, in flight and on the ground...

There are dozens of hazards, in flight and on the ground… Picture by Helicopterphotos.net

If you believe that H&S is a load of rubbish, give me five minutes to change your mind. It might save your skin – or a fortune in legal costs.

Health and Safety aims to reduce the risk of injury or death. You may grizzle about how officialdom tries to do this, but bottom line, it makes sense to avoid injury or death, or wrecking your valuable aircraft.

I have read the H&S Act 2015 and realised that preventing harm is the responsibility of the business operator. The Act requires operators to do all in their power to assess the risks or hazards associated with the business and eliminate, isolate or minimise them.

Erecting a sign that says “Watch your step” is not always sufficient to prevent people from tripping up. It’s your responsibility to remove the potential danger. If you can prove that removal of the hazard is impossible, then it’s my understanding that the sign would have been the most reasonable step. This is consistent with Section 22 of the Act which states:

In this Act, unless the context otherwise requires, reasonably practicable, in relation to a duty of a PCBU [ person conducting a business or undertaking]set out in subpart 2 of Part 2, means that which is, or was, at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters, including—

  1. a) the likelihood of the hazard or the risk concerned occurring; and
  2. b) the degree of harm that might result from the hazard or risk; and
  3. c) what the person concerned knows, or ought reasonably to know, about—
  4. the hazard or risk; and
  5. ways of eliminating or minimising the risk; and
  6. d) the availability and suitability of ways to eliminate or minimise the risk; and
  7. e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

Applying this to an aviation business, there are dozens of hazards in flight and on the ground in support of flight operations.   The “in-flight hazards” are easy to prevent if you comply with the law. All commercial operations need an Air Operator Certificate which will only be issued if you have shown adequate means by which you can and will comply with the CAA Act and associated Rules. In many cases, this involves an exposition which you can write yourself or get a contractor to do it. If you make sure that all your flight operations are in accordance with the exposition, you should be safe from the H&S Act.

Simple as that – but easier said than done. Too often we rush and forget things, for example, failed to enter a SARTIME in the flight plan, or busloads of passengers drop in and you haven’t time to weigh all the “heavies” and the investigation after a mishap shows your C of G was outside limits. You’re in the gun.

With fare-paying passengers on board, you reckon you can short-cut through a saddle with 50 feet or so to spare below the cloud base. You’re in the gun again because you just broke the visual flight rules. If you end up in the trees and hurt people, you’ll rue the day. Might even cost you your bank balance and your business. And for what? Saving a few minutes?

The fact is that if you breach the law and someone gets hurt, the H&S Act will bite you. Remember, you and the aircraft are the hazard and the judge will hold you responsible. The choice is: give up the business or operate within the law.

Essentially, H&S is all about caring. So how do we care?

“She’ll be right” is out and consideration for your own safety and that of others is in.   Don’t do anything that has the potential to cause harm. Think things through and comply with the standards that are in place. Compared to many industries, aviation is fortunate in having procedures, drills and rules based on experience that make it relatively easy to perform safely and to avoid harm. Abide by them rather than improvise.

If you perform a task within the constraints of the applicable laws, rules and procedures, you stand a good chance of avoiding a conviction under the H&S Act if something untoward caused harm and you’d done your best to avoid it. The Court decides whether an offence has been committed, not the CAA or OSH, which are tasked with investigation and prosecution. Unfortunately, it’s difficult to predict a court’s decision.

So work backwards. Look at your business and the way it’s run; then imagine standing in the dock wondering how you could have avoided being there. In plain terms, cover your butt – which is not all that difficult if you work in accordance with the exposition based on CAA Rules (e.g. Part 119), Standard Operating Procedures and Health & Safety procedures. And then insist that all personnel conform and monitor their compliance.

Some operators are quite capable of writing all three documents but many are not. The latter can contract a number of exposition writers who will customise manuals for them; some include H&S procedures.

Reasonably practicable care can be achieved but it comes at the cost of constraints that can be time-consuming and frustrating. This applies particularly to long-established operators who have relied on their own safe and effective practices for years and want to be left alone to do their thing. Sadly, times have changed. Management is now held responsible for the safe conduct of the business and failure to carry out their responsibilities can result in closure, as well as hefty fines and/or incarceration.

If you breach the law and someone gets hurt, the H&S Act will bite you

If you breach the law and someone gets hurt, the H&S Act will bite you

Staff are similarly saddled with responsibilities that may be quite alien to them. The position of Safety Manager is critical in the organisation and for large operators this can normally be filled by a full-time qualified person.   Small operators often don’t have that option but it’s acceptable for the CEO or Operations Manager to hold the position provided the person is thoroughly familiar with the H&S concept and can provide effective supervision on a daily basis.

Staff must accept the principle of strict compliance with procedures and duties that are part of the operation and understand that they are responsible not only for their own health and safety but also that of others. Management and staff must be open to constructive criticism, suggestions and recommendations.   Feedback and effective communication are essential.

Just in case you consider yourself badly done by, H&S rules are far more stringent in many other countries. My niece in France says that her domestic helper must wear a safety helmet if she needs to use a small ladder to clean the windows. It’s the way the world is moving and the quicker we all get used to the constraints, the better.

A fundamental fear is that the “opposition” might grab your work if you believe that a job can’t safely be done today. With everyone affected by the H&S Act, including your clients, it shouldn’t be too difficult to convince them that, like them, you have to work under the Act. We’re all in the same boat and only a fool will disregard the consequences that have driven quite a few people to distraction.

What to do? Write H&S procedures and measures that are most likely to convince a judge that you have taken reasonable steps to prevent injury or death that may have occurred in association with your business. If you feel that’s difficult, there are people who can assist you. Within the next few years, the CAA SMS will be in place and that includes Health & Safety. So the effort you put in now for H&S won’t be wasted when the time comes for you or your contractor to write an SMS exposition.

If I were still operating an aviation business, my screams would have been the loudest about the seeming nonsense and extra work associated with H&S. But in the end, I would have had enough sense to calm down, look at it, consider the consequences of non-compliance, write the required procedures and make sure every staff member complies. The Chinese have a saying for it: “Bend with the wind”.

Re-reading this article, it looks as though I’m advertising for the CAA, me of all people. I haven’t changed really but feel that most of us don’t see the risk of non-compliance; some operators have already been badly hurt and my effort here aims to stop that from happening to you.

Ag pilot competency checks: CAA leaves a mess in its wake

CAA - the fox in charge of the henhouse

CAA – the fox is in charge of the henhouse

The CAA is clearly in difficulties over its plans to reform the testing regime for agricultural pilots, particularly since the GAA pointed out that much of the proposed reform was not practical – particularly for the single-seat, single-control fixed-wing aircraft. Yes, it may be “legal” using the subtle differences in interpretation between a “passenger”, a“crew member” and a “required crew member”.

However, legality does not necessarily translate into a safe operation.

There are serious Health and Safety implications in the CAA’s proposals. Protests from the ag operators have highlighted the hazards. The CAA has adroitly passed the health and safety issues back to the operators and made them responsible for mitigating the dangers.

Because some of the single-control aircraft do not have a specific reference in their operating limitation pages of their flight manuals (a single-control Fletcher aircraft has only a placard on the panel, for example), the CAA says that the manufacturers do not specifically prohibit the carriage of a person in the jump seat during actual agricultural operations. However, a GA 200C Fatman, for example, does have a specific reference in the limitations pages to the fact that the passenger seat must not be occupied during agricultural operations and therefore an E Cat or a flight examiner may not be legally carried in that seat.

To mitigate the risks of restricted control movement caused by the person occupying the passenger seat during actual agricultural operations, the CAA has passed that responsibilty over to the PIC to ensure he has full and free control movement before takeoff. Whether this control check adequately takes into account the person in the passenger seat shifting his pre-takeoff seated position during a critical phase of flight, such as the low level reversal turns at the end of a spray or topdressing run, is open to conjecture.

As a result of submissions regarding the difficulties in complying with AC 61-15, the CAA has modified its stance and now permits ground observations of Ag competency checks in single-control, single-seat aircraft, provided they are backed up with high resolution video footage taken from within the cockpit.

The CAA is delegated to manage the new Health and Safety Act in the sphere of aviation. We question how the CAA can be expected to carry out an independent investigation of its own ACs and AMCs when it is, in effect, the fox in charge of the henhouse.

Ag pilots – a tiny and easily identifiable group for the CAA – were never individually consulted when the Authority issued its first AC about flight testing.

The Authority’s latest Advisory Circular is now up to Revision 5.

Of course, all this nonsense could have been avoided by proper consultation.

The General Manager GA has told us that there is no requirement for the CAA to consult on the addition of an AMC (Acceptable Means of Compliance) to an AC, although it may disclose and discuss the AMC informally but not necessarily with all interested parties.

However, the parties most affected by the Rule and the first version of the AC were the single-seat, single-control, fixed-wing Ag pilots – and they were not specifically consulted. We ask the obvious question: “How hard would that have been?”

We say that the way the Authority handles ACs and AMCs amounts to regulation by stealth, there being no compulsory requirement to consult with all interested parties – leaving the CAA at liberty to advise hand-picked groups claiming to represent the industry.

 

♦ If you have written to the CAA – on any subject – don’t just keep it to yourself and them. You can share it with fellow aviators by sending it to the GAA as well. Email to admin [at] caa [dot] gen [dot] nz

 

The future for our CVD pilots: GD Review Panel’s findings, in black and white

"...much evidence was presented to support the view that most CVD in pilots is not likely to be of aeromedical significance"

“…much evidence was presented to support the view that most CVD in pilots is not likely to be of aeromedical significance”

The full report of the Colour Vision Deficiency General Direction Review Panel runs to 87 pages. In the interests of brevity, we have condensed it to three A4 pages. Fifty-nine written submissions were received in response to the consultation process. Of these, 15 were from aviation groups and the remaining 44 from individuals.

The Principal Medical Officer, Dr Dougal Watson, also provided the panel with a PowerPoint presentation. In answer to a question regarding the reasoning behind the proposed flight restrictions for a pilot who is CVD, he said that the “restrictions are historical”. This was a key issue for the panel, particularly in relation to the risk posed by a pilot with CVD, the different operational environments pilots operate in and who should be determining restrictions under which a pilot is to operate.

The PMO also said that he thought practical flight tests are unreliable.

But in the panel’s now-released opinion, a flight examination has the same status as a medical examination in ensuring that a pilot is not a threat to the public and renewing their privileges to fly. Here are the key points in the panel’s report:

Part 6 – Conclusions

  1. The colour vision status of those holding a medical certificate issued under CAR Part 67 needs to be known, just as other aspects of the physical status of pilots is known; e.g. other aspects of vision, hearing and mental health status. If routine screening or non-routine examination (including a practical test) acceptable to the Director can be passed, then the CVD is not of aeromedical significance.
  2. The promulgation of a GD for colour vision is appropriate to provide certainty, clarity and consistency.
  3. CVD is a potential safety threat although there is difficulty in establishing exactly what the threat is. In this respect, the guidance provided by ICAO is not helpful. The ICAO Manual of Civil Aviation Medicine admits that there is very little information which shows the real, practical implications of colour vision defects on aviation safety. ICAO standards for colour vision pre-date many advances in aviation technology and flight safety, which raises doubt over the validity of many of the traditional reasons for imposing restrictions on a CVD pilot and calls into question what is and is not of aeromedical significance. The situation is compounded by inconsistent standards being applied by different states and by the same state over time.
  4. Advances in aviation, technology and training mean greater emphasis can be placed on interpreting information rather than simply the recognition of colours if this is not essential to the operation. These advances, and the additional safety they bring to aviation in general, are such that relaxing CVD requirements will likely not impact on safety. No evidence or compelling argument was presented to the panel that related perceived aeromedical significance of CVD to known or proven threats to flight safety. On the contrary, much evidence was presented to support the view that most CVD in pilots is not likely to be of aeromedical significance. Similarly, the accumulated hours flown by pilots around the world, especially in Australia, suggests CVD pilots are likely to pose no greater safety risk than a non-CVD pilot.
  5. There is a lack of evidence to support the proposed medical certificate restrictions, and the proposed restrictions do not reflect risks posed by CVD in the context of modern aviation.
  6. Any restrictions imposed on a pilot with a CVD condition must be applied on the basis of an identifiable threat to safety or risk. The question as to whether or not a condition is of aeromedical significance, and hence the level of risk, is dependent on the operational context; the type and nature of the operation; type of aircraft; and crew composition. What may be significant for one situation may not be for another. The variability is too great to be dealt with by generalised restrictions as proposed in the GD.
  7. There is no strong link between the office-based examination of CVD and real world realities. Under the proposed GD, the assessment of interferes with or likely to interfere with is ascertained from office-based assessments only. This assessment cannot be made from office-based tests only and can only be determined by an in-flight practical test. While aviation medicine and flight operations specialists will need to be involved in the development of protocols for in-flight testing, only a flight examiner or flight instructor will be in a position to assess the ability of a pilot with a CVD condition to operate an aircraft safely. Thus the effect that a CVD condition will have on the ability of a pilot to safely exercise the privileges of a licence is a flight operations issue, not a medical issue.
  8. The CAD test appears to be the best office-based occupational test available and it is appropriate that it is added to the list of acceptable non-routine examinations. Overall though, the GD appears to be too limited in acceptable non-routine tests and while the GD suggests other tests may be acceptable to the Director, AC67-1 does not reflect this.
  9. Consistency in standards and restrictions with other states, particularly Australia, is desirable; however it is more appropriate to direct any initiatives in this respect to ICAO to progress.
  10. A three-tier testing regime which includes an in-flight test is a more appropriate method than the proposed GD to assess colour vision and to determine the ability of a candidate to safely exercise the privileges or the safe performance of the duties to which the relevant medical certificate relates. Such a regime would maintain New Zealand’s compliance with ICAO requirements in this respect and will identify the operational risks of CVD. The three tiers are:
  • Stage 1 – Initial Routine Screening. The current screening proposed by the GD using the Ishihara test using the pass criteria as proposed in the GD.
  • Stage 2 – Non-routine office-based examination. Should an applicant not pass routine screening, non-routine office-based examinations are conducted to establish the nature and severity of the condition. If any test is passed, then the condition can be deemed as not of aeromedical significance.
  • Stage 3 – Practical test. Should it be necessary, a specifically tailored flight assessment or simulator exercise is conducted to determine the ability of the candidate to safely operate an aircraft.
  1. It is appropriate that Stage 2 and 3 testing is conducted through the AMC process, including the ability for a candidate to forego non-routine examinations and accept restrictions based on the initial screening results.
  2. Any restrictions placed on a candidate’s certificate must be based on the context of the individual’s circumstances; the nature and severity of the condition, and the intended operation

Part 7 – Recommendations

  1. The CVD GD Review Panel recommends that the Director proceed with the General Direction – Impaired Colour Vision with the following changes:
  2. Review the GD with respect to acceptable non-routine office based examinations to ensure other tests currently in use by other ICAO regulatory authorities are included as acceptable tests.
  3. Introduce the CAD test as proposed.
  4. Include a practical flight test to the examination procedure as a third stage following initial screening and non-routine examination so that a candidate may demonstrate their ability to operate an aircraft safely.
  5. Ensure that certificate endorsements, including the need for any ongoing tests should a CVD condition be deemed to be of aeromedical significance, are based on input from both medical and operational staff and are related to the individual’s particular situation with respect to condition and operational context, and noting that only an in-flight test can assess the ability of a pilot with a CVD condition to operate an aircraft safely.
  6. Develop appropriate protocols, procedures and guidance to ensure the practical test is appropriate to the nature and severity of an applicant’s CVD condition and the context of the candidate’s intended operation and the identifiable risk that the candidate poses.
  7. The Review Panel further recommends that the Director conducts further evaluation into the colour perception needs of air traffic controllers.

The bottom line.

This report does not reflect CAA policy and simply provides guidance to the Director. We will need to wait until the PMO provides his report to the Director. A final decision on what process the CAA will adopt is not expected until November.

 

The doctor needn’t see you now: UK PPLs freed from Class 2 medicals at last

PPL holders in the UK are within weeks of liberation from the Class 2 medical, along with its needless hassle and expense.

96% of UK pilots backed the scrapping of the PPL medical

96% of UK pilots backed the scrapping of the PPL medical

This means the medical requirement for UK private pilot licence and national private pilot licence holders will be the same as for a DVLA Group 1 Ordinary Driving Licence (ODL). Existing medical options (for example, a UK declaration with GP countersignature) will remain open. The same options will be available for private balloon pilots.

To take advantage of the change, pilots will only need to complete a form on the CAA website to declare that they meet the DVLA medical standard. Pilots under 70 will need to do this once, while pilots older than that must confirm their declaration every three years.

The changes are subject to enactment of the proposed Air Navigation Order 2016 (ANO) which is planned to come into effect on a so far unspecified date in ‘late [northern] summer’ 2016. The proposed ANO legislation will contain these changes and other significant amendments for GA.

Currently, UK pilots with an NPPL (National Private Pilot Licence) must merely comply with DVLA group 1 or 2 standards and have their self-declaration of fitness countersigned by their GP. Holders of a UK PPL currently need an EU Class 2 medical, or meet the NPPL medical requirements if they only use the privileges of an NPPL licence (in other words, only fly within the UK).

The change has been supported by a study of the risks associated with GA flying, together with a review of the causes of light aircraft accidents and the likelihood of these being triggered by a pilot being medically incapacitated.

The risk to third parties was considered by the CAA, as well as the regulatory approach now being taken by the Federal Aviation Administration in the USA, which mirrors the UK proposal.

In New Zealand, pilots continue to ask: Just how long will it take for our own Civil Aviation Authority to awake from its slumbers and try to catch up with much of the developed world?

Our most recent information from the CAA (couched in its characteristically defensive, bureaucratic wording) said:

The CAA is aware of, and monitoring, developments relating to questions of Private Pilot Licences and medical requirements in the UK and USA. The question of suitable future requirements in the New Zealand context is to be the subject of policy work by the CAA. However, please note that any significant changes to the current regime would require changes to the Civil Aviation Rules, which is a matter outside the control of the CAA.

And as CAA deputy boss/Associate Minister of Transport Craig Foss told a GAA supporter in a letter dated 26 July 2016: “the CAA is not currently considering any changes to medical certification requirements.”

Warning: The legal responsibilities and obligations of Senior Persons

Remember: The law is not the same as justice

Always remember: The enforcement of laws is not always balanced by the administration of  justice

Recently, a helicopter was involved in an accident.  The owning company operated under a Part 135 AOC and had its exposition written by an external contractor who subsequently became the company’s QA Manager.  That manager lived far from the company and was not always at the operational base.

After the accident, he received from the CAA prosecution notices relating to the accident, notifying charges laid against him under the Health & Safety Act.

It is clear from this that Senior Persons employed by companies are likely to be prosecuted if the company is involved in an accident and the manner in which those persons have carried out their responsibilities has, in the eyes of the CAA, been unsatisfactory or negligent.

Many operators employ QA managers who are not often on the premises but exercise oversight through periodic visits and internal audits.  If the CAA believes that they have not satisfactorily fulfilled their duties, and an accident has happened, they are likely to be prosecuted. Even if a court ultimately finds the person innocent, the defendant will still face heavy legal expenses.

The generic wording of court charging documents illustrates the broad-brush charges that can be used under the Health and Safety Act, which the CAA appears to be exercising with vigour:

1) Being an employer, did fail to take all practicable steps to ensure that action or inaction of any employee while at work harmed any other person.

 Maximum penalty – A fine not exceeding $250,000.

 2) Being a self-employed person, did fail to take all practicable steps to ensure that no action or inaction of the self-employed person while at work harmed the self- employed person or any other person.

 Maximum penalty – A fine not exceeding $250,000

 A similar threat exists for named directors of companies who might have thought that, because they only fulfilled “clerical duties”, they would be exempt from prosecution. As a result of the “Easy Rider” commercial fishing vessel prosecution under the Health and Safety Act, it has been shown that such a person cannot abdicate those responsibilities.

3) Being an officer or director of a company, did direct, authorise, assent to, acquiesce in, or participate in the failure of that body corporate to take all practicable steps to ensure that no action or inaction of any employee while at work harmed any other person.

 Maximum penalty – A fine not exceeding $250,000

It is now time to examine your risk of prosecution, bearing in mind the provisions of the Health and Safety at Work Act 2015.

Ask yourself: “Am I comfortable in continuing in that role? And do I have sufficient liability cover?”

It is to be hoped that Senior Persons (and particularly QA managers) will be prepared to continue with their duties but carefully review their level of oversight – bearing in mind the legal repercussions, should they err. More specifically, those who assist the company from outside and agree to assist in an effort to be helpful should make a determined effort to thoroughly understand their duties and take a firm stand if the company is not performing as it should.

 

Outcome of the Easy Rider commercial fishing vessel which sank in Foveaux Strait in March 2012

Comment by Angela Beazer on the prosecution of Ms Davis as a director, and implications for aviation businesses

Gloria Davis

Gloria Davis

The Court acknowledged that it had some sympathy for the position Ms Davis found herself in, and that this would be taken into account at sentencing. However, Ms Davis was the sole director of the company, and for maritime law purposes she carried many of the legal responsibilities for compliance with the safety requirements of the SSM certificate and was the nominated fit and proper person for the organisation. Thus, the Judge stated, Ms Davis was “held out by the company as the person responsible for both the safety on the boat and compliance with the [law]”.

The Judge went on to acknowledge:

“In practice, she did not fulfil those roles. They were left to Mr Karetai, he skippered the boat and he made the relevant decision in regard to the operation of the boat. Regrettably, that is not an excuse. A person with such responsibilities… cannot abdicate those responsibilities and suggest, as here, that she fulfilled only clerical duties”.

Although the level of involvement and knowledge of Ms Davis in this case might be greater than in other cases, the above comments could equally apply to a number of small aviation businesses, particularly husband-and-wife-owned businesses, who view one business partner as merely an office holder “on paper”.

The law does not make such a distinction. Workplace health and safety laws are also being strengthened, and more stringent duties will attach to directors and senior officers of companies than that which Ms Davis has been prosecuted under.

I cannot stress enough that small aviation businesses in a similar position should review the legal structure, and in particular the designated legal responsibilities of officers of the business, to avoid unintended consequences arising for a non-active partner, in the event that something goes wrong.

Please visit Angela’s website at http://www.amclegal.co.nz/articles, workplace health and safety issues, to read more about this.

Goodbye PPL Medical – and good riddance (but not in New Zealand)

96% of UK pilots backed the scrapping of the PPL medical. Is the NZ CAA deaf?

96% of UK pilots backed the scrapping of the PPL medical. Is the NZ CAA deaf?

The UK Civil Aviation Authority has announced the virtual end of the PPL medical.

Requirements for private pilots are to change in line with the CAA’s top level principles for GA regulation. They do not apply to pilots with commercial licences or those displaying at airshows, who will still need to be approved as fit to fly by a specialist aviation medical examiner.

The move – supported by 96% of respondents in a public consultation – will lead to cost and time savings for pilots and, in most cases, even remove the need for General Practitioner or Authorised Medical Examiner involvement.

Once the change takes place later this year, the medical requirement for UK private pilot licence and national private pilot licence holders will be to meet the same standard as that required to hold a DVLA Group 1 Ordinary Driving Licence. Existing medical options (for example, a UK declaration with GP countersignature) will remain available. The same options will also be available for private balloon pilots.

To take advantage of the change, pilots will need to complete a form on the CAA website to declare that they meet the DVLA medical standard. Pilots under 70 will need to do this once, while pilots over 70 must confirm their declaration every three years.

The changes are planned to come into effect in late northern summer 2016 when a new version of the UK Air Navigation Order will be published, containing these changes and other significant amendments for general aviation.

Currently, pilots with a NPPL licence are required to comply with DVLA group 1 or 2 standards and have their self-declaration of fitness countersigned by their GP. Holders of a UK PPL currently need an EU class 2 medical or the NPPL medical requirements if they only use the privileges of an NPPL licence.

The change is supported by a study of the risks associated with GA flying, together with a review of the causes of light aircraft accidents and the likelihood of these being triggered by a pilot being medically incapacitated. The risk to third parties has been considered and the regulatory approach taken by the Federal Aviation Administration in the USA, which mirrors the UK proposal, was also reviewed.

The consultation response document can be seen at www.caa.co.uk/cap1397.

More detail on the CAA’s GA activities and the work of the GA Unit are available at www.caa.co.uk/ga.

The FAA has a bill passing through Congress which will give PPL privileges on a driver’s licence medical.

Could we soon see the walls of our own CAA Medical Unit begin to crack under the weight of global common sense?