This is areasoned evaluation of theproposed Part 132 that AWAL functionaries say will be better for all Warbird Owners, may I say read carefully and beware, this will cripple Australian Warbird operations as we know them today.
REVIEW OF PROPOSED CHANGES TO RULESGOVERNING LIMITED CATEGORY & EXPERIMENTAL AIRCRAFT – 23 January 2013; by Stephen Dines, CASA Authorised Person& AWAL AP
IMPORTANT NOTES
CASAhas proposed changes for the certification and management of limited category andexperimental aircraft. The proposedchanges are set out in a ‘Consultation Draft’.
This review isbased solely on the draft dated 11 September 2012, and cannot takeinto account any changes made to the draft since that version. Therefore, observations made in this review may no longer be appropriate if CASA hassince altered the proposal.
The‘Consultation Draft’ reviewed here was made available to certain AWAL membersby Stephen Crocker, CEO of AWAL. To theknowledge of the reviewer, the ‘Consultation Draft’ is still not availableoutside CASA and AWAL, and the CASA rep has said that it will not be madeavailable until it is ready to be released to the public through the NPRMprocess.
CONSULTATION DRAFT
74 pages
Dated 11 September 2012
Schedule 1 amends the
Civil Aviation Safety Regulations 1998.
Schedule 2 amends the
Civil Aviation Regulations 1988.
Includes
revisions to Parts 21 & 45
new Part 132
deletes CAR 42CB
deletes CAR 262AM
amends CAR 262AN
Introduction
Theproposed changes are complex and require many consequential amendments, so the‘Consultation Draft’ document is lengthy, convoluted and not easy to read. In this review I will attempt to outline someimportant ‘big picture’ elements of the proposal as well as discussing smallerelements of the proposed changes. I willnot discuss all the issues raised by this ‘Consultation Draft’ – there are toomany.
The‘Consultation Draft’ includes a great number of changes that are of a‘machinery’ nature and I will not comment on those at all.
Name changes and new definitions
Historic becomes Antique
Ex-military becomes Ex-armedforces
Ex-armed forces means:
an aircraft that has been manufactured in accordance with the requirements of, andaccepted for use by, an armed force of any country, but is no longer used, orhas never been used, by such a force.
Examples of armed forces
1 The army, navy or air force of a county.
2 A police force or service of a country.
3 A customs or border protection agency ofa country.
4 Another law enforcement agency of acountry.
registered operator has the meaninggiven by regulation 47.100.
operator is used frequentlybut no meaning is given to differentiate from registered operator
relevant approved organisation, for Limited,means AWAL
relevant person, for Limited,means AWAL or CASA
landingarea meansa place, whether or not an aerodrome, where an aircraft is able to take-off andland safely.
How safe operation is to be achieved
Byfar the most far-reaching change proposed, is in how safety is to be managedfor Limited category aircraft.
TheCASA proposal introduces a raft of new offences so that if a person doessomething wrong, an offence is committed for which a penalty is prescribed.(Most offences and therefore penalties are applied automatically, as offencesof ‘strict liability’.) Thus, the CASAapproach is to charge people with offences in the anticipation that this willproduce compliant behaviour, and in turn, deliver desirable safety outcomes.
Instark contrast, in the proposal that CASA agreed to in 2007, AWAL said that itwould devise policies for safe operation and enforce those policies by removingflight privileges for non-compliers, until compliance is demonstrated.
Asa result of this fundamental shift, and if AWAL agreed to remain the administratorof Limited category ops under the proposed new regs, then AWAL would primarilyact as a policing body, following policies devised by CASA and set solidly inregulation. In summary:
ORIGINAL
AWALdevises policies
AWALsets policies in Self-Admin Manual
Safetyby removing flying privileges of non-compliant aircraft
PROPOSED
CASAdetermines policies
CASAsets policies in regulation
Safetyby enforcement
Someideas contained in the draft are quite sensible and should be supported, butAWAL could support such ideas and monitor their effectiveness, by promoting andkeeping up-to-date, sound policies, rather than by putting those ideas intoregulation where they will be inflexible, and all but immovable.
Limited Manual
Amanual must be created for every Limited Category aircraft and individuallyapproved by AWAL. A copy of each Manualmust be provided to AWAL.
Eachaircraft must be operated in accordance with its Limited Manual. Failure to keep a Limited Manual up-to-dateis an offence, regardless of whether the aircraft flies or not.
It is also an offence if an operator failsto ensure that all personnel involved in adventure flights are provided withcopies of the Manual or its relevant parts.
personnel, means:
(a) an employee of the operator; and
(b) a person engaged by the operator toprovide services to the
operator; and
(c)an employee of a person mentioned in paragraph (b).
Cancellation of existing experimentalcertificates
Anotherfar-reaching CASA proposal is that ALLaircraft that can be described as ‘WARBIRDS’ should be certified in the Limited category, so that they can beadministered by AWAL. (An exception ismade for highly modified race planes.)
Toachieve this, draft reg 202.052B will cancelall existing experimental certificates that have been issued to warbirds in for example the ‘exhibition’ sub-category, on the dateof commencement of Part 132. Affectedaircraft will have to apply for a new Certificate of Airworthiness, and willhave to seek approval for any mods that are not part of the original typedesign.
Thepracticality of approving such mods is questionable and the expenseinevitable. For instance, here are someexamples of experimental warbirds that would find it difficult to re-certify inLimited category as proposed by CASA –
· Yak-52with a tail-wheel
· Kittyhawkwith the wrong engine and prop
· T-6modified to look like a Japanese fighter for the film “Tora Tora”
· Boomerangwith the wrong wings
· Nanchangwith a Yak engine
IfCASA prevails and those aircraft must operate under AWAL administration, thereis no need to re-certify them, when CAR262AN could be simply amended to embracethem. In fact, the ‘Consultation Draft’actually does amend CAR 262AN sothat AWAL can oversee certainexperimental aircraft, so it is clearly possible to add exhibition experimentalcertificates to this particular amendment if CASA wanted to. There is no reason proffered for a need tore-certify, nor consideration of the expense.
Provisionis made in the draft for AWAL to authorise an aeronautical engineer for thepurpose of approving mods to Limited aircraft, but there is no suggestion ofwhich mods would be acceptable or how such mods could become approved, norconsideration of the considerable risk that would be assumed by an aeronauticalengineer who chose to do so.
Cancellation of existing Limitedcertificates and permit index numbers
202.612 Special certificates ofairworthiness ceasing to be in
forceon [thedate of commencement of Part 132]
AnyCofA that was issued by someone otherthan CASA or AWAL (that is, by a CASA Authorised Person), will be cancelledon the date of commencement of Part 132, and a new CofA must be applied for.
202.613Permit indexes assigned by CASA or Australian Warbirds Association Ltd
AnyPermit Index that was assigned by someone otherthan CASA or AWAL (for example by a CASA Authorised Person), will becancelled on the date of commencement of Part 132, and a new one must beassigned.
Experimental aircraft maintenance
Alsounannounced and unexplained, is the intention to cancel CAR 42CB, which regapplies to ALL EXPERIMENTALAIRCRAFT.
Reg42CB was established at the commencement of the experimental rules, and directswhat the maintenance will be for an experimental aircraft. This reg was created because it was clearthat for the most part, experimental aircraft would not be able to comply withthe maintenance rules for normal aircraft. Reg 42CB should have been short lived – Part 43 was scheduled to closelyfollow it, and Part 43 contained a provision to exempt experimental aircraftfrom the normal maintenance rules – but after 15 years, that exemption hasstill not arrived to take the place of CAR 42CB.
WithoutCAR 42CB in place, or something like it, experimental aircraft of ALL typeswill be forced to obey maintenance rules which may simply be impossible. If CASA has considered this conflict anddesigned a replacement for 42CB, it is not readily apparent.
CASA head ofpower to define Limited uses and permit index
Thisregulation creates the power for CASA to modify, at any time, what uses a Limited aircraft may be put to,or how a Permit Index will apply, byissuing an Instrument.
21.004 Legislative instruments for Part 21
For paragraph 98 (5A) (a) of the Act, CASAmay issue
legislative instruments prescribing:
(a) operations that are special purposeoperations for limited
category aircraft for paragraph 21.189 (3)(i); or
(b) the requirements for the assignment ofa permit index
number to a limited category aircraft for
paragraph21.189C (2) (a).
Withthis power available, CASA can make whatever changes it sees as appropriatefrom time to time, without being hampered by the processes involved withchanging a regulation.
Thereis no reason apparent for this extraordinary approach and no safety outcome is suggested. There is no indication of what justificationCASA would need to trigger a modification to those provisions and consultationwould not be mandatory.
Offences shared around
Atseveral places in the ‘Consultation Draft’, offences are prescribed that applysimultaneously to both operator and pilot. Here is one example:
132.205 Flying limited categoryaircraft—flights over
populous areas
(1) The operator and the pilot incommand of a limited category
aircraft each commit an offence if:
(a) the aircraft is flown over a populousarea; and
(b)the flight is not permitted by this regulation.
A forced landing during an adventure flight createsan offence:
132.260 Carriage of passengers for hire orreward or on
publicly available flights—unbroken roundtrips only
(1) The operator of the aircraft commits anoffence if, for the
flight, the aircraft does not take-off fromand land at the same
landingarea (without landing anywhere else).
Thereare also offences created that apply to a booking agent if adventure passengersare not warned correctly at the point of sale.
Guardian must fly with pax
Would-beadventure passengers who are under 18 or mentally-impaired must be accompaniedon a flight by a parent or guardian. This will rule out the use of TWO-SEAT aircraft for such passengers.
Personal use officially okay
Amid the proposed changes is a provision that officially sanctions personaluse ofa limited category aircraft, as long as such a flight -
(a) is not publicly available; and
(b)no payment or reward is made or given to the aircraft’s registered operator,operator or flight crew.
Thedefinition of personal flight includes the personal transportation of theaircraft’s owner or operator or of a person to whom the aircraft is lent.
Itshould come as a relief to Limited owners to know that they will no longer riskprosecution for undertaking a personal flight in their warbird, and CASA is tobe applauded for taking this position.
Thedown-side for this public announcement is that, when they find out about it,manufacturers and distributors of certified aircraft may object, as happened inthe USA. Warbird ops in the US wereseverely constrained as a result.
Flight over a built-up area
Restrictionsregarding flight over a built-up area are tighter in the proposed new rules:
A limited category aircraft with a permitindex of 0 may be flown over a populous area.
A limited category aircraft with a permitindex of 1 may be flown over a populous area only in accordance with anapproval granted by AWAL or CASA.
A limited category aircraft with a permitindex of 2 may be flown over a populous area only in accordance with anapproval issued by CASA (only).
Alimited category aircraft with a permit index of 3 will not be permitted to flyover a built-up area at all.
Underthe original rules, there were more sensible provisions like this one in AC21.25(1), for an aircraft with apermit index of 1:
When the aircraftis transiting over a city or town, the aircraft must fly at a speed and heightwhich, in the event of an engine failure, will enable the aircraft to glide toa locality clear of the populous area.
CASAhas stated clearly that even an overflightat altitude would create an offence in the new rules, if an aircraft is notapproved for flight over the built-up area underneath it.
Shifting responsibilities
Currently,a Limited aircraft can operate in Australia, on the proviso that thirdparties are protected from it. Withthat direction from Government in mind, the original Limited rules wereconstructed with clear statements of responsibility and outcomes, like this:
From 21.189
Anapplicant is entitled to a special certificate of airworthiness for an aircraftin the limited category if the applicant gives CASA or an authorised person, informationreasonably needed by CASA or the authorised person to enable it to impose any conditions necessary in theinterests of the safety of other airspace users and persons on the ground orwater.
Theproposed regs however, contain several instances where AWAL or CASA or anAuthorised Aeronautical Engineer, for example, must take responsibility for thesafety of more than third parties:
Forexample, under the proposed 21.189C, whenAWAL issues a Limited CofA, AWAL must assign a permit index to the aircraft,only if AWAL “is satisfied” that the assignment of the number would not belikely to have an adverse effect on thesafety of air navigation.
Similarly, under 21.189D, CASA may vary a permitindex that was issued by AWAL if CASA is satisfied that it is necessary in the interests of aviation safety.
Anotherexample; when considering the issue of instruments for the control of Limitedops, 132.020 empowers CASA to take into account matters affecting the safe navigation and operation of ANAIRCRAFT to which Part 132 applies.
When the rules for Limited category andexperimental were composed, a separate NPRM produced the following reg:
201.003 Commonwealthand CASA not liable in certain cases
Neitherthe Commonwealth nor CASA is liable in negligence or otherwise for any loss ordamage incurred by anyone because of, or arising out of, the design,construction, restoration, repair, maintenance or operation of a limitedcategory aircraft or an experimental aircraft, or any act or omission of CASAdone or made in good faith in relation to any of those things.
CASR201.003 clearly indicates that CASAcannot be responsible for the safety of the aircraft itself.
Allthe above examples represent obviousconflicts with CASR 21.003, which in turn will impose unreasonableliability on persons who might be required to make decisions under thoseprovisions.
Thisshift away from Government’s directive as expressed in 201.003, will inevitablygenerate unexpected consequences as people apply their own ideas of how to dealwith phrases like “in the interest of aviation safety”. This change presents a very real threat tothe continued viability of Limited operations.
Unnecessary duplication
Inthe ‘Consultation Draft’ there is a “new” experimental purpose created. That “new” purpose is -
21.191(ba) for an ex-armed forces aircraft—for determining whether the aircraft hasacceptable handling characteristics;
Thischange is superfluous as a provision already exists under 21.191 (b) –
AC21.5(0) 10.FLIGHT TESTING At the completionof restoration, a limited category aircraft will be required to undergo a testflight prior to the issue of a limited category CoA. A limited durationexperimental certificate issued in accordance with CASR 21.191(b) will be required...
New limit for POB
Fora Limited aircraft to be flown with more than 6 persons on board, an approvalis required. However, under the proposedchanges, the number of persons for which the approval is given must not be more than the number of personsthe aircraft was designed to carry.
Sofor large aircraft like bombers, that have had seats added for pax, it lookslike those seats will have to come out – if these proposals go ahead.