Rules, when expertly drafted, do not require interpretation. A major problem in New Zealand – and not confined to aviation – is the unseemly haste in which rules are often written by the inexpert, and the unintended consequences of flawed interpretations.
What’s frequently worse is the delay, expense and confusion that results while trying to fix such blunders.
We have a classic example.
After the Fox Glacier skydiving and Wairarapa balloon tragedies, urgent measures were taken to tighten up the existing Rules with the introduction of Part 115. Perhaps a little too urgent, because inconsistencies were quickly identified in Part 115 Adventure Aviation and other related Rules, which were raised with the CAA. One can only surmise that the undue haste with which this rule was framed was as a direct result of ministerial pressure from the ‘Beehive’.
One such inconsistency concerns the medical validity period for pilots aged 40 years and over.
The point was originally raised with the Manager Special Flight Operations & Recreational Aviation when Part 115 was first circulated for discussion. It was again raised at the Part 115 operators’ meeting in March. On both occasions, the response was to simply point to the rules (namely Part 67 – Medical requirements) under the assumption that Adventure Aviation had the same requirements as that for Air Operations: a six-month medical validity period for pilots aged 40 and over.
Here are the relevant parts relating to Air Operations. There are no references to Part 115 Adventure Aviation in Parts 67 & 61, except in Part 1 – Definitions, which clearly states that Adventure Aviation is not an Air Operation.
So if is not an Air Operation, the following must apply:
From the reading of Part 67 and Part 1, the duration of the medical certificate for commercial pilots aged 40 years or more, for Adventure Aviation Operations, is 12 months (67.61 (a) (ii)).
(It was also noted that the Part 61 NPRM contains no mention of Adventure Aviation.)
From Part 115:
115.559 Pilot Qualifications
(1) Holds an appropriate current commercial pilot licence issued by the Director under the Act and Part 61.
From Part 67 – Medical requirements:
67.61 Effective date and duration of medical certificates
(a) Subject to paragraphs (c) and (e), the Director may issue —
(1) a class 1 medical certificate for a period of up to —
(i) 6 months, for single-pilot air operations carrying passengers if the applicant is 40 years of age or more on the date that the medical certificate is issued; or
(ii) 12 months, in all other cases
From Part 61:
61.207 Currency requirements
A holder of a commercial or senior commercial pilot licence is required to comply with the requirements of rules 61.35 (Medical requirements), 61.37 (Recent flight experience) and 61.39 (Biennial flight review) before exercising the privileges of the holder’s commercial or senior commercial pilot licence.
61.35 Medical requirement
(a) Except as required in paragraph (b), a person who holds a pilot licence issued in accordance with this Part must not exercise the privileges of the licence, unless —
(1) the person —
(i) in the case of a private pilot licence, holds at least a current class 2 medical certificate issued under the Act;
(ii) in the case of a commercial or senior commercial pilot licence and an airline transport pilot licence, holds a current class 1 medical certificate issued under the Act;
From Part 1 – Definitions:
Air operation means an air transport operation or a commercial transport operation:
Air transport operation means an operation for the carriage of passengers or goods by air for hire or reward except —
(1) a commercial transport operation
(2) an adventure aviation operation
(3) a helicopter external load operation under Part 133
(4) an agricultural aircraft operation under Part 137
(5) a trial flight.
A further attempt was made to get a definitive ruling, but there was no acknowledgement of the email. Yet another was sent, with the same result.
Then it was discovered that the Manager Special Flight Operations & Recreational Aviation was overseas. The CAA was advised that this employee should have had someone monitoring emails in his absence or, as a minimum, an automatic “out of office” reply to incoming emails. It would have provided an interim response, as required by the 10-working day CAA Service Charter.
Eventually, on April 16, an email from the Team Leader, Flight Operations, Adventure Aviation, gave an assurance that there would be “a reply by the weekend”. But another month passed, with no communication from the CAA.
After further prodding on Friday May 17, a reply was eventually received on Monday May 20.
This simply stated:
Clarification of rules:
Parachute drop rating:
All pilots doing Parachute Tandem or Sports jumps flights for hire or reward must hold a CPL.
A rules issue has been raised today to cover Adventure Aviation for medicals over 40 years of age every 6 months. Where it mentions Air Transport and Commercial operations, Adventure Aviation will be added. At the moment it is still 12 months, until the rules issue becomes affective [sic].
In short, the CAA’s interpretation of the rules pertaining to Adventure Aviation had been wrong all along.
This case again illustrates the persistent failure of CAA personnel to observe their own service charter by not responding in a timely way, and it is by no means the first instance of a poor approach to rule interpretation.
For CAA customers, a major difficulty (and injustice) is that the CAA can make its own interpretations at no cost to itself – and stick to them even until someone is prepared to mount a legal challenge. In doing so, the cost must be borne by the individual.
Perhaps the CAA should be reminded that the Rule which states that Time is Money also applies to its customers.