Proposed Part 43: Time to get informed and involved
My review of the draft Part 43 MOS and changes to the regs was quite eye-opening. I'd suggest that anyone who thinks the proposed new rules are mainly about maintenance organisations or personnel should think again. If you are a pilot or registered operator of any Part 43 aircraft - a large part of the Australian fleet - it is in your interests to get informed and get involved in the consultation process.
I made one general point and three key points in my comments at the end of the my response to CASA's on-line consultation questions. Here is the general point and first key point:
General point
Whilst there is an understandable focus on what maintenance may be performed by whom on what aircraft under the proposed Part 43 rules, those rules are important to pilots and registered operators of the aircraft, especially if the draft offence provisions are going to remain as presently drafted. As drafted, there are some profound differences for pilots and registered operators as well as maintenance personnel and organisations compared with the current rules. One could be forgiven for believing that the current package was not drafted with the input of, or without paying much heed to the input of, experienced pilots and experienced registered operators of many of the aircraft types that will be the bulk of Part 43 aircraft.
Key point 1: Pilots in command should continue to be allowed to defer repair or rectification of damage or defects that do not affect the safe operation of a Part 43 aircraft, without reference to or approval by the registered operator. As drafted, the Part 43 package will expose pilots to regulatory action and criminal liability for doing so.
Background 1
Section 3.09(d)(ii) of the draft MOS provides for the deferral, by the registered operator and only the registered operator, of the repair or rectification of damage or defects that do not affect the safe operation of the aircraft. One of the examples given under s 3.09(d)(ii) is defective position lights fitted to an aircraft that is to be operated only VFR by day.
Under the proposed rules as drafted, it will be a strict liability criminal offence for a pilot in command to start a flight with any damage or defects that have not been deferred by the registered operator in accordance with the MOS. That offence is in draft CASR 91.147. See, in particular: draft CASR 91.147(2)(c).
Scenario 1
Assume Cessna 172 Alpha Bravo Charlie is being flown by a private Day VFR pilot on a round Australia adventure. The pilot hired the aircraft from an organisation at Parafield. The pilot drops in to Arkaroola. The pilot discovers the bulb for the position light on the right wing is blown. There are no spare bulbs within cooee. The pilot either does not know who the registered operator is or does not have their contact details but, in any event, is out of mobile range and cannot contact the registered operator.
Question 1
What is the safety basis for exposing the pilot to regulatory action and criminal liability if he or she commences a day VFR flight without the registered operator having deferred the rectification of the blown position light bulb?
Answer 1
There is no safety basis.
Discussion 1
Almost every day if not every day under the current rules, pilots lawfully make the decision to fly aircraft with defects like a blown position light bulb, without any risk to safety and without the knowledge or approval of the registered operator or anyone else. The sky has not fallen in.
By definition, ‘deferable’ damage or defects do not affect the safe operation of the aircraft. In many cases, pilots have a better understanding of the safety implications of damage or defects than registered operators do, noting that any person can be the registered operator of an aircraft without having any aviation-related or other qualifications (just as there are no qualifications to be the registered operator of a car). Further, as highlighted by the simple scenario, there are circumstances in which the registered operator cannot be contacted by the pilot.
Conclusion 1
Not only should it not be an offence – strict liability or otherwise - for a pilot in command to commence a flight in an aircraft with damage or defects which do not affect the safe operation of the aircraft, the pilot in command should continue to be allowed to defer those defects without reference to or the approval of the registered operator. (The yawning gap in this area is created by the inadequacy of pilot education, leading to chronic ignorance and confusion about what damage and defects may be deferred, subject to what conditions, to failures by pilots to record the decision and placard the aircraft accordingly, and to failures by pilots to read the important bits of documents like maintenance releases and understand their implications.)
If, instead, CASA persists with the current provisions relevant to this issue – thus demonstrating, once again, the delta between CASA rhetoric and CASA action – CASA should make sure that all pilots know that when these new rules finally come into force, pilots will be exposed to regulatory action and criminal liability if they continue to make the unilateral decision to defer the kinds defects which may lawfully be deferred by pilots under the rules today without reference to or the approval of the registered operator or anyone else.
See also conclusion 2a.