Consultation Draft Part 91.
Apart from the 'emotive' issues discussed here,
(I'd love to insert - " It is an offence for any CASA Officer to attempt to intimidate any crew member of an aircraft at any time" - Penalty - immediate dismissal as deemed not suitable for the job of promoting 'Openness' and 'Safety'. )
The real question:-
Is / are any of the Aviation organisations taking this up with the 'Legal fraternity' / Politicians, with a view to rescinding these draconian attempts at what amounts to shutting down the Aviation industry - by the so called 'Safety Regulator' - who is supposed to be the 'SAFETY AUTHORITY' - NOT a policeman lurking with book in hand at every opportunity!!
Ovah...
(I'd love to insert - " It is an offence for any CASA Officer to attempt to intimidate any crew member of an aircraft at any time" - Penalty - immediate dismissal as deemed not suitable for the job of promoting 'Openness' and 'Safety'. )
The real question:-
Is / are any of the Aviation organisations taking this up with the 'Legal fraternity' / Politicians, with a view to rescinding these draconian attempts at what amounts to shutting down the Aviation industry - by the so called 'Safety Regulator' - who is supposed to be the 'SAFETY AUTHORITY' - NOT a policeman lurking with book in hand at every opportunity!!
Ovah...
Folks,
CASR 91 ( and all other regulations being drafted) Drafting Style.
It should be noted that there are a number of acceptable legislative drafting styles available for Commonwealth legislation.
The highly prescriptive style represented in this CASR Part 91 draft is the style preferred by CASA, with the FAA or NZ style specifically rejected.
This was not always the case, and is not the industry preferred, but in recent years, industry input has been rejected on this issue.
Of much greater concern to me are the numbers of strict liability offenses where a measure of pilot or crew judgement is called for. In normal criminal law, in theory at least, criminal intent must be proved for a criminal conviction.
There is no need to prove intent in a strict liability offense, only the physical elements of the offense.
Any so called offense should never be strict liability, and in theory can never be a strict liability offense, where a judgement is called for on the part of the person accused of the offense.
Despite the horrible drafting style, there is actually some good stuff in this lot, including greater authority for the PIC.
Re. 30 minutes fixed final reserve, this is ICAO, and has been a feature of many airline fuel policies for many years ---- the change came about after a number of fuel exhaustion accidents with large aircraft.
I would suggest that our lamentable record of fuel exhaustion accidents in commercial GA would be addressed by this measure, it is already a feature of many more recent GA Ops. Manuals/FCOMs.
Those of you with a rudimentary understanding of "orders of accuracy" in anything to be measured will understand the reason for a Fixed Final Reserve --- the reserve that means there is a reasonable expectation that the engines will still be running when, on the day, all the +/- stack up against you ---- despite your calculation, howgoesit, gauges, flowmeters etc.--- all of which are subject to measurement error.
Tootle pip!
CASR 91 ( and all other regulations being drafted) Drafting Style.
It should be noted that there are a number of acceptable legislative drafting styles available for Commonwealth legislation.
The highly prescriptive style represented in this CASR Part 91 draft is the style preferred by CASA, with the FAA or NZ style specifically rejected.
This was not always the case, and is not the industry preferred, but in recent years, industry input has been rejected on this issue.
Of much greater concern to me are the numbers of strict liability offenses where a measure of pilot or crew judgement is called for. In normal criminal law, in theory at least, criminal intent must be proved for a criminal conviction.
There is no need to prove intent in a strict liability offense, only the physical elements of the offense.
Any so called offense should never be strict liability, and in theory can never be a strict liability offense, where a judgement is called for on the part of the person accused of the offense.
Despite the horrible drafting style, there is actually some good stuff in this lot, including greater authority for the PIC.
Re. 30 minutes fixed final reserve, this is ICAO, and has been a feature of many airline fuel policies for many years ---- the change came about after a number of fuel exhaustion accidents with large aircraft.
I would suggest that our lamentable record of fuel exhaustion accidents in commercial GA would be addressed by this measure, it is already a feature of many more recent GA Ops. Manuals/FCOMs.
Those of you with a rudimentary understanding of "orders of accuracy" in anything to be measured will understand the reason for a Fixed Final Reserve --- the reserve that means there is a reasonable expectation that the engines will still be running when, on the day, all the +/- stack up against you ---- despite your calculation, howgoesit, gauges, flowmeters etc.--- all of which are subject to measurement error.
Tootle pip!
a "safety" Offence-ive by the Regulator ???
PART 91. OFFENCES ABLE TO BE COMMITTED BY PILOTS.
Note the NZ lot.. 157 pages. CASA 270
A win on bulk.!... but they cheated by chorusing the phrases about strict
liability and penalties throughout.
Its offensive in every way.
As for adopting the NZ Part, for Trans Tasman simplicity, that would be too quick, easy and save the taxpayer a bucketload... but no, got a shed full of wallies here, have to give them something to do.! Bugger the time and cost.
And in the uniquely Oz punative style.
As if there isnt enough of CASA reg-crap that needs rectification already.
Note the NZ lot.. 157 pages. CASA 270
A win on bulk.!... but they cheated by chorusing the phrases about strict
liability and penalties throughout.
Its offensive in every way.
As for adopting the NZ Part, for Trans Tasman simplicity, that would be too quick, easy and save the taxpayer a bucketload... but no, got a shed full of wallies here, have to give them something to do.! Bugger the time and cost.
And in the uniquely Oz punative style.
As if there isnt enough of CASA reg-crap that needs rectification already.
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Don't know why they list the penalty under each topic... why? so I can justify breaking it if its low enough?
Obviously you are in trouble if you get it wrong... how hard can it be?
somebody please, THINK OF THE TREES!
Obviously you are in trouble if you get it wrong... how hard can it be?
somebody please, THINK OF THE TREES!
What, then, are reserves for?
For that fateful day when the odds are agin you and the reserves save your a*se.
For that fateful day when the odds are agin you and the reserves save your a*se.
Yes, you can use the reserves to save your life ... but we'll make sure that the life you save turns into a misery !
There's something screwy about all this
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Yep Peuce, I totally agree.
Leadsled, whilst the intent of that 'arrive with fixed-reserve fuel' section is laudable, the wording of that section definitely is not, unfortunately it is the words that CASA and their legal team (on hourly rates) will convict us on if we arrive at our destination with less that the specified fixed reserves irrespective of the reason for the shortfall.
There are also discrepancies that I've found between what is stated in the explanatory appendix and what is actually stated in the proposed regulation(s).
This is legal language, where the actual words matter a heck of a lot.
Leadsled, whilst the intent of that 'arrive with fixed-reserve fuel' section is laudable, the wording of that section definitely is not, unfortunately it is the words that CASA and their legal team (on hourly rates) will convict us on if we arrive at our destination with less that the specified fixed reserves irrespective of the reason for the shortfall.
There are also discrepancies that I've found between what is stated in the explanatory appendix and what is actually stated in the proposed regulation(s).
This is legal language, where the actual words matter a heck of a lot.
---whilst the intent of that 'arrive with fixed-reserve fuel' section is laudable
Let me make it a bit clearer ---- you should have 30 minutes fuel in the tanks at the end of the landing roll.
All other "reserves", weather, holding, ATC, approach allowance or however you calculate it is on top of the 30 minutes fixed final reserve. Normally the 30 minutes is calculated at the holding fuel flow for the landing weight.
Its all about making certain you have at least some fuel in the tanks at the end of the flight --- have a look at the ATSB/BASI records over the years. One would have thought "training and education" should be enough, but the record seems to indicate otherwise.
Lets be clear, it not laudable, its the law --- already, has been for years---- for most heavy aircraft, and will now apply to all operations --- better get used to the idea.
Tootle pip!!
I think the saddest part of these new rules is that now everybody is a criminal by default, we have lost all hope of having an open reporting culture where you can learn from peoples mistakes.
Will you honestly spill your guts about landing with less than reserves due to some unforseen factors?
Pity now that your friends and colleagues do not get to learn from your experience and mistakes as you have the 10 penalty units axe hanging over your head.
Will you honestly spill your guts about landing with less than reserves due to some unforseen factors?
Pity now that your friends and colleagues do not get to learn from your experience and mistakes as you have the 10 penalty units axe hanging over your head.
its the law --- already, has been for years
It use to be stated in the ANRs but that changed when CAR 234 was promulgated.
If an operator wants 10 minutes fixed reserve and has documented in their OM, there is nothing to stop them. CASA may not like it, but it is inline with 234(1) and (2). (CAR 234 "sufficient fuel")
CAAP 234-1 is only a guideline and is not the only method of complying with CAR 234.
By stating a number in Part 91, it makes it easier to ping you. All you can do is argue over on what the reserve is based on.
95.510(4)
(4) In this regulation:
fixed fuel reserve, for an aircraft, means the amount of fuel required to allow the aircraft to fly at normal cruising speed in International Standard Atmosphere conditions:
(a) for a rotorcraft — for at least 20 minutes; or
(b) for an aeroplane — for at least 30 minutes.
fixed fuel reserve, for an aircraft, means the amount of fuel required to allow the aircraft to fly at normal cruising speed in International Standard Atmosphere conditions:
(a) for a rotorcraft — for at least 20 minutes; or
(b) for an aeroplane — for at least 30 minutes.
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its the law --- already, has been for years
CAR 234 requires the pilot in command to take "reasonable steps to ensure
that the aircraft carries sufficient fuel and oil to enable the proposed flight to be undertaken in safety"
CAAP 234 describes itself as "a CASA preferred method for complying", but that "It is not the only method"
No it isn't, and it hasn't been that way for years.
As I have already said, it been in many ops. manuals for years, that makes it enforceable, for those operators.
That there are still out of date/ non-ICAO regulation still around is hardly news, that there are many unamended ops manuals around says something about CASA audits, if the FOIs even understand the intent, which I am quite certain many don't.
What is wrong with the draft is "normal cruising speed", undefinable.
The common (ICAO) approach is 30 minutes at holding speed, which can be pinned down, and more to the point, for a large aircraft, would be a lot less fuel than something called normal cruise, but commonly about 3% of the total fuel load, which just happens to be of the right order to take care of the order of accuracy issues.
ICAOwise, it is all about, and only about taking care of measurement errors, and making certain there is some fuel in the tanks on landing.
For those of you who do not understand "order of accuracy", it would be a really good idea to look up the concept.
Tootle pip!!
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Leadsled, I understand your explanation, but the proposed regulation 91.510 does not say anything about 'order of accuracy'., it doesn't explain anything. (and interpreting the fuel gauges in a lot of GA aircraft would be more like 10% accuracy rather that your 3% in an RPT A/C)
91.510 bluntly states that you must have your (ill-defined) fixed-reserve intact when you land, otherwise you are guilty.
There is no provision for any defence.,
It doesn't care if the actual winds are worst than forecast.,
It doesn't care it you have a slow fuel-leak.,
It doesn't care if you get held by ATC because of problems due Wx or worst-than-usual congestion.
It doesn't care that you've had to do bigger diversions due to worst-than-forecast Wx or conditions.
91.510 bluntly states that you must have your (ill-defined) fixed-reserve intact when you land, otherwise you are guilty.
There is no provision for any defence.,
It doesn't care if the actual winds are worst than forecast.,
It doesn't care it you have a slow fuel-leak.,
It doesn't care if you get held by ATC because of problems due Wx or worst-than-usual congestion.
It doesn't care that you've had to do bigger diversions due to worst-than-forecast Wx or conditions.
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91.120 Flying over public gatherings
I don't understand 91.120
Wouldn't 1(b) (i) arriving at or departing from an aerodrome ...
and 1(b) (ii) passing from place to place in the ordinary course of navigation ...
cancel out the offense at 1 (a) ... flies the aircraft over a public gathering?
Wouldn't 1(b) (i) arriving at or departing from an aerodrome ...
and 1(b) (ii) passing from place to place in the ordinary course of navigation ...
cancel out the offense at 1 (a) ... flies the aircraft over a public gathering?
Biggles,
No, it doesn't say anything about order of accuracy in an operating rule, that's all buried away in certification rules.
The defense is the defense available for any strict liability offense. See the Criminal Code.
Of course, something like this should never be a strict liability offense. It should be up to the prosecution to prove that there was intent to run below the fixed final reserve.
Say, planning totally inadequate operational reserves in the first place, or deliberately continuing when it should have been clear from the howgoesit that the fixed final reserve would be breached.
Quite correct, that's what variable reserves are for, and a howgoesit, and if you are going to run short, divert and get some more motion lotion.
If you can prove that, it would be a defense.
Correct again, that's what you carry ATC holding fuel for. If you get caught out by unexpected ATC delays, divert or declare an emergency.
Here is where the Yanks have a good way of handling the matter, declaring a fuel state ( don't remember the correct words, off hand) without having to declare a full-on Mayday.
Spot on again, if your pre-flight planning and resultant fuel load proves to be not enough, as the weather and ATC diversions and delays develop, commonly one resulting in the other, same required solution.
Hardly even what you would call a command decision, really, just plain common sense, but in Australia we seem to need to regulate to require common sense.
The fixed final reserve, as a concept, is ezzzactly what it says it is.
Tootle pip!!
PS: One of the few ramp checks I have ever had, back in the days of "the good old DCA", involved checking my fuel remaining. It was a Cessna 205. I demanded that the only way to determine the fuel remaining, was to fill the tanks, at DCA expense, and see how much it took
The inspector took the bait, I was well inside the then 45m reserve, and was left with a free load of fuel for the final 90 minute leg of the trip. I haven't had too many wins like that one, over the years.
No, it doesn't say anything about order of accuracy in an operating rule, that's all buried away in certification rules.
There is no provision for any defense.,
Of course, something like this should never be a strict liability offense. It should be up to the prosecution to prove that there was intent to run below the fixed final reserve.
Say, planning totally inadequate operational reserves in the first place, or deliberately continuing when it should have been clear from the howgoesit that the fixed final reserve would be breached.
It doesn't care if the actual winds are worst than forecast.,
It doesn't care it you have a slow fuel-leak.,
It doesn't care if you get held by ATC because of problems due Wx or worst-than-usual congestion.
Here is where the Yanks have a good way of handling the matter, declaring a fuel state ( don't remember the correct words, off hand) without having to declare a full-on Mayday.
It doesn't care that you've had to do bigger diversions due to worst-than-forecast Wx or conditions.
Hardly even what you would call a command decision, really, just plain common sense, but in Australia we seem to need to regulate to require common sense.
The fixed final reserve, as a concept, is ezzzactly what it says it is.
Tootle pip!!
PS: One of the few ramp checks I have ever had, back in the days of "the good old DCA", involved checking my fuel remaining. It was a Cessna 205. I demanded that the only way to determine the fuel remaining, was to fill the tanks, at DCA expense, and see how much it took
The inspector took the bait, I was well inside the then 45m reserve, and was left with a free load of fuel for the final 90 minute leg of the trip. I haven't had too many wins like that one, over the years.
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Be careful what you wish for.
Well, you got what you wished for – a new regulation.
There are 3 things about this proposed legislation which should have every operator in Australia up in arms.
There are 3 reasons why there is not a major outcry, can you guess what?.
This document shows that CASA do not want to effect rules which cannot be tinkered with by policy or manipulated to suit their 'interpretation', that much is clear.
These changes will become bogged down and the CASA can say "Well m'lud, we tried and they were rejected, now can you see why it has taken so long". "What can we do"?. or: The proposals are accepted and the cynical, mindless arrogant micro management apparent in the document continues, only now with real legal teeth.
There is no way we are ever going to get sensible outcome based regulation no matter how many other countries do it, manage to meet ICAO 'principals' and encourage an open reporting culture in an atmosphere where you not presumed guilty at every event.
The only error in their game plan is not to criminalize the "**** – Fart separator – Check", which, IMHO should be a jailable offence. You can tell they missed it, just read the proposed reg, the stench of systematic corruption is almost visable.
We are doomed boys, it's a one way street and there is no room at the trough for probity.
Selah.
There are 3 things about this proposed legislation which should have every operator in Australia up in arms.
There are 3 reasons why there is not a major outcry, can you guess what?.
This document shows that CASA do not want to effect rules which cannot be tinkered with by policy or manipulated to suit their 'interpretation', that much is clear.
These changes will become bogged down and the CASA can say "Well m'lud, we tried and they were rejected, now can you see why it has taken so long". "What can we do"?. or: The proposals are accepted and the cynical, mindless arrogant micro management apparent in the document continues, only now with real legal teeth.
There is no way we are ever going to get sensible outcome based regulation no matter how many other countries do it, manage to meet ICAO 'principals' and encourage an open reporting culture in an atmosphere where you not presumed guilty at every event.
The only error in their game plan is not to criminalize the "**** – Fart separator – Check", which, IMHO should be a jailable offence. You can tell they missed it, just read the proposed reg, the stench of systematic corruption is almost visable.
We are doomed boys, it's a one way street and there is no room at the trough for probity.
Selah.
And to think the Democrats were ready to propose to disallow the instrument in 2003.
Strict Liability
should never have been allowed to be written into the regs. Not the brightest time at bat for those responsible for stopping the Dems from acting.
EDIT- sorry creamy...as a dumb truck driver, I always attempt to stay on the right side of the law.....not always safe but still on the right side of the law.
Strict Liability
should never have been allowed to be written into the regs. Not the brightest time at bat for those responsible for stopping the Dems from acting.EDIT- sorry creamy...as a dumb truck driver, I always attempt to stay on the right side of the law.....not always safe but still on the right side of the law.
Last edited by OZBUSDRIVER; 4th Apr 2011 at 11:41.
Thread Starter
Leadsled, your defence of the fixed reserve fuel regulation fails under most circumstances because you would have to prove that the conduct, landing with less than Thirty minutes fuel was unavoidable.
In practice what that means is that you can no longer exercise any discretion - the Thirty minutes fuel has to be counted as "Dead fuel", to the point where, if I ever decide to continue with the acquisition of an aircraft, I'm going to have the gauges and dipstick recalibrated to leave Thirty minutes worth at empty.
Let me make myself clear. Under this regulation, the very minute you determine in flight that you are likely to chew into that Thirty minute reserve - which I will now call the legislative reserve, for whatever reason, wind, cloud, leaks, engine malfunction, you must take immediate avoiding action if such action is available to you.
If you fail to take immediate avoiding action once it became obvious that you would break the legislative reserve, and instead press on, you are guilty of the offence, unless you can prove that no other course of action was available to you.
That means divert to the nearest available airstrip or turn back.
The interesting legal argument in court will be whether an outback station strip qualifies as an available airport and exactly when the potential low fuel state event ought to have been discoverable by the pilot.
oh! and a P.S. Kharons comment is spot on - The presentation of the new part 91 to the industry in the existing oppressive regulatory language and format indicates that CASA has no interest whatsoever in regulatory reform.
The issue for new entrants to the GA industry now is whether they can live with this regime. It would appear that GA is dying fast, which is why it appears that CASA has now decided that recreational aviation is a potential new host for it to feed on.
In practice what that means is that you can no longer exercise any discretion - the Thirty minutes fuel has to be counted as "Dead fuel", to the point where, if I ever decide to continue with the acquisition of an aircraft, I'm going to have the gauges and dipstick recalibrated to leave Thirty minutes worth at empty.
Let me make myself clear. Under this regulation, the very minute you determine in flight that you are likely to chew into that Thirty minute reserve - which I will now call the legislative reserve, for whatever reason, wind, cloud, leaks, engine malfunction, you must take immediate avoiding action if such action is available to you.
If you fail to take immediate avoiding action once it became obvious that you would break the legislative reserve, and instead press on, you are guilty of the offence, unless you can prove that no other course of action was available to you.
That means divert to the nearest available airstrip or turn back.
The interesting legal argument in court will be whether an outback station strip qualifies as an available airport and exactly when the potential low fuel state event ought to have been discoverable by the pilot.
oh! and a P.S. Kharons comment is spot on - The presentation of the new part 91 to the industry in the existing oppressive regulatory language and format indicates that CASA has no interest whatsoever in regulatory reform.
The issue for new entrants to the GA industry now is whether they can live with this regime. It would appear that GA is dying fast, which is why it appears that CASA has now decided that recreational aviation is a potential new host for it to feed on.
Last edited by Sunfish; 4th Apr 2011 at 21:27.
In practice what that means is that you can no longer exercise any discretion - the Thirty minutes fuel has to be counted as "Dead fuel", to the point where, if I ever decide to continue with the acquisition of an aircraft, I'm going to have the gauges and dipstick recalibrated to leave Thirty minutes worth at empty.
As a matter of interest, something along these lines is now included in the FAR 25 certification rules ---- a provision which requires the fuel gauge systems to be calibrated such that, below a specific amount, the contents remaining is the minimum remaining in the tanks, ie; no minus applicable to the plus/minus, meaning you have at least that amount of fuel remaining.
landing with less than Thirty minutes fuel was unavoidable.
What nobody seems to have bothered picking up on is the concept of "normal cruise" as an undefined fuel flow, on which to base the calculation of 30 minutes holding.
A more appropriate way, because the fuel flow rate can be pinned down (plus/minus for the order of accuracy) is the holding fuel flow rates, whci are largely dependent on only weight. ie; the thrust/horsepower is dependent on the drag at Vmin drag.
Tootle pip!!