CASR 91 now out for public comment

[kaz3g]

CASA has released a draft of its proposed CASR 91 and there are a few things which will undoubtedly cause concern to those of us who fly for pleasure rather than reward.

 

The Covering Note for the Consultation Draft can be found here

 

Note particularly the comments about:

 

1. Making the minimum height rule (see 91.295) similar to FAR 91.119 by including a

 

provision requiring (except during take-off and landing and in other specified

 

circumstances) aircraft to be flown at such a height that would enable a forced landing

 

without undue hazard to persons or property on the surface if a power unit failed at any

 

time... and

 

2. Incorporating a new requirement for a ‘risk’ briefing of passengers before boarding a nonair

 

transport flight (see 91.567); this new requirement is being proposed on the basis that

 

passengers on non-air transport flights should understand that the aircraft may be operated

 

to standards that are lower than those for air transport flights and that the pilot/operator

 

may not have liability insurance that extends to death, injury or damages to them and their

 

property.

 

Pilots have until 31 May to comment and perhaps those comments should include concerns that matters of insurance are not a "safety" issue and are therefore outside of the legislated powers given to CASA by the CAA.

 

kaz

 

 

[Vev]

Hi Kaz,

 

Thanks for pointing this out.

 

I just read the actual sub part division 91.295 in the consultation draft as published by CASA on their site and it doesn't feel a lot different to the rules we use today about height limitations. What is your concern about this area ... may be I'm missing something?

 

Cheers

 

Vev

 

 

[Guest Crezzi]

To his credit, cficare started a thread on this last week - I was a little surprised that there were no responses. With all due respect to the ongoing discussion about the RAAus board I fear CASR91 is a more immediate threat.

 

I've only had a quick skim through it so far but there a few things which I picked up on (in addition to the generally draconian tone).

 

For example, the hypothetical pilot discussed in http://www.recreationalflying.com/showthread.php/141613-glide-speeds has probably committed several serious offences - not planning the flight to land with the legal minimum reserve, not diverting to his alternate when he couldn't reach his destination with the legal reserve and not notifying ATC when he couldn't reach his destination with legal reserve.

 

There are also some new regulations concerning the use and updating of GPS with aviation databases which might well affect many recreational pilots.

 

The current ultralight CAO 95.10/32/55 provide us many exemptions to CAR1988 but that will ultimately be replaced by this document. I assume there would therefore have to be a reissue of the recreational CAO's and I wouldn't be at all surprised if they didn't provide the same level of exemptions as we currently enjoy.

 

I'll be submitting a response by May 31 - hopefully lots of other people will do likewise

 

Cheers

 

John

 

 

[Guest ozzie]

Crezzie in regard to minimum reserves ect this has been a requirerment for as long as i can remember you must land with a minimum of 45 minutes and that requires diverting if you cannot achieve this. When flying on a flight plan (lodged) if remaining fuel was a problem this would come under declaring an emergency so atc could expidiate your arrival or give you a diversion.

 

Also it has been always a requirement to be able to 'glide clear'.

 

As for your briefing of pax on risk. Is this not why we have a plackard fitted in full view and pax briefing is part of your pax endorsment. None of this comes across as anything new. it is just rehashed and relabled.

 

Another smoke and mirror exercise by CASA to show someone that they are doing something when in fact they are not achieving anything new to make flying safer for anyone either in the air or on the ground. Just part of the 300million dollar 22 year waste.

 

 

[Vev]

I also just noticed that in an info pack sent out (attached link below) CASA stated that passenger carrying of Part 91 did not apply to the Sports and Recreational Activities covered under Part 103? Not sure if this is still the current position of CASA but it's still currently published on their site in relation to Part 91.

 

http://www.casa.gov.au/wcmswr/_assets/main/newrules/parts/091/download/infopack091_may09.pdf

 

If this is right then a lot of the part 91 passenger requirements may not apply to RAA activities???

 

Cheers

 

Vev

 

 

[Guest Crezzi]

Crezzie in regard to minimum reserves ect this has been a requirerment for as long as i can remember you must land with a minimum of 45 minutes and that requires diverting if you cannot achieve this. When flying on a flight plan (lodged) if remaining fuel was a problem this would come under declaring an emergency so atc could expidiate your arrival or give you a diversion.

The requirement in CAR1988 is simply that the pilot had to take reasonable steps to ensure that the aircraft had sufficient fuel to enable the proposed flight to be undertaken in safety.

 

Cheers

 

John

 

 

[Guest ozzie]

Without me having to read right though that mess just what is the 'Proposed' minmum legal requirerment. When flying pre 1994 i always had to plan 45 minutes minimum plus required for the flight in any VH aircraft. did it change post 94 ?

 

 

[Flying Ant]

A few more alarming regulatory changes that caught my eye were;

 

Violating controlled airspace is now an offence of strict liability so getting lost or disorientated is not a defence.

 

Also unless authorised by ATC, all turns when in the circuit at a controlled aerodrome must be to the left. It only offers avoiding terrain as a defence, so a right turn to adjust circuit spacing or to avoid a conflict requires ATC approval.

 

Other than these few and far between odd regulations, I think it is a step in the right direction to have all this information consolidated into one regulatory part.

 

 

[Guest Crezzi]

Without me having to read right though that mess just what is the 'Proposed' minmum legal requirerment. When flying pre 1994 i always had to plan 45 minutes minimum plus required for the flight in any VH aircraft. did it change post 94 ?

The figure of 45mins comes from CAAP-234 which is an advisory publication containing CASA's preferred method for complying with the fuel requirements of CAR1988. That's not quite the same as CASR91 which makes it an offence to land with less than the fixed fuel reserve remaining. Furthermore its an offence of strict liability and with no permitted defence - effectively the fixed reserve is ballast you are never permitted to use.

 

It might seem to be a minor difference but its symptomatic of the whole tone of the document which seems to work on the premise that pilots are inveterate miscreants and therefore should be allowed no discretion.

 

Another example I've just come across is the use of cruising levels below 5000ft. In CAR1988 this was "recommended" but in CASR91 it is a defence to a prosecution if you can prove that you were unable to comply. A significant difference IMO.

 

Cheers

 

John

 

 

[kaz3g]

A few more alarming regulatory changes that caught my eye were;Violating controlled airspace is now an offence of strict liability so getting lost or disorientated is not a defence......

CASA has adopted an extemely punitive framework for the proposed new regulations and virtually everything now is mandated with an associated strict liability offence.

 

91.295 Minimum operating heights all flights

 

(1) In this regulation:

 

minimum safe height, for a flight of an aircraft, means the height from which an emergency landing due to a failed engine could be conducted without endangering persons or property on the ground or water.

 

(2) The pilot in command of an aircraft commits an offence if:

 

(a) the aircraft is on a flight over an area mentioned in column 2 of an item in Table 91.295; and

 

(b) the aircraft is of a type mentioned in column 3 of the item; and

 

© the circumstances (if any) mentioned in column 4 of the item apply to the aircraft; and

 

(d) the pilot flies the aircraft below the higher of:

 

(i) the minimum safe height for the flight; and

 

(ii) the height mentioned in column 5 of the item; and

 

(e) the flight is not permitted by subregulation (3).

 

Penalty: 50 penalty units.

 

(3) The flight is permitted if:

 

(a) the aircraft is taking off or landing; or

 

(b) the aircraft is engaged in a missed approach; or

 

© the aircraft:

 

(i) is not carrying passengers; and

 

(ii) is engaged in a practice emergency procedure at an aerodrome; or

 

(d) the aircraft:

 

(i) is not carrying passengers; and

 

(ii) is engaged in a practice forced landing procedure with the consent of the person or authority having control over the land on which the procedure is carried out; or

 

(e) the aircraft:

 

(i) is not carrying passengers; and

 

(ii) is being flown over an area:

 

(A) that is authorised for low flying under [Part 141]; and

 

(B) with the consent of the person or authority having control over the land above which low flying is being carried out; and

 

© that has been surveyed by the pilot in command for obstacles before beginning the flight; or

 

(f) the aircraft is a helicopter to which subregulation (4) or (5) applies..

 

You need to look at the Table accompanying the reg at

 

http://www.casa.gov.au/newrules/parts/091/download/casr91_consultdraft.pdf

 

to get the full gist of it, but the important thing seems to be that an offence is committed if the pilot flies the aircraft below the higher of:

 

(i) the minimum safe height for the flight; and

 

(ii) the height mentioned in column 5 of the table

 

And if you have an engine failure and bust something or someone on the ground, you have also committed an offence because you could not have been at the "minimum safe height".

 

The "risk" briefing requires you to spell out the terms of your insurance policies and to advise pax that they aren't travelling as safely as they do when using RPT. Since when was insurance an aviation safety issue?

 

kaz

 

 

[Guest ozzie]

CASA has adopted an extemely punitive framework for the proposed new regulations and virtually everything now is mandated with an associated strict liability offence.91.295 Minimum operating heights all flights

 

(1) In this regulation:

 

minimum safe height, for a flight of an aircraft, means the height from which an emergency landing due to a failed engine could be conducted without endangering persons or property on the ground or water.

 

(2) The pilot in command of an aircraft commits an offence if:

 

(a) the aircraft is on a flight over an area mentioned in column 2 of an item in Table 91.295; and

 

(b) the aircraft is of a type mentioned in column 3 of the item; and

 

© the circumstances (if any) mentioned in column 4 of the item apply to the aircraft; and

 

(d) the pilot flies the aircraft below the higher of:

 

(i) the minimum safe height for the flight; and

 

(ii) the height mentioned in column 5 of the item; and

 

(e) the flight is not permitted by subregulation (3).

 

Penalty: 50 penalty units.

 

(3) The flight is permitted if:

 

(a) the aircraft is taking off or landing; or

 

(b) the aircraft is engaged in a missed approach; or

 

© the aircraft:

 

(i) is not carrying passengers; and

 

(ii) is engaged in a practice emergency procedure at an aerodrome; or

 

(d) the aircraft:

 

(i) is not carrying passengers; and

 

(ii) is engaged in a practice forced landing procedure with the consent of the person or authority having control over the land on which the procedure is carried out; or

 

(e) the aircraft:

 

(i) is not carrying passengers; and

 

(ii) is being flown over an area:

 

(A) that is authorised for low flying under [Part 141]; and

 

(B) with the consent of the person or authority having control over the land above which low flying is being carried out; and

 

© that has been surveyed by the pilot in command for obstacles before beginning the flight; or

 

(f) the aircraft is a helicopter to which subregulation (4) or (5) applies..

 

You need to look at the Table accompanying the reg at

 

http://www.casa.gov.au/newrules/parts/091/download/casr91_consultdraft.pdf

 

to get the full gist of it, but the important thing seems to be that an offence is committed if the pilot flies the aircraft below the higher of:

 

(i) the minimum safe height for the flight; and

 

(ii) the height mentioned in column 5 of the table

 

And if you have an engine failure and bust something or someone on the ground, you have also committed an offence because you could not have been at the "minimum safe height".

 

The "risk" briefing requires you to spell out the terms of your insurance policies and to advise pax that they aren't travelling as safely as they do when using RPT. Since when was insurance an aviation safety issue?

 

kaz

My head hurts. I think i need a Bex and a good lie down.

 

 

[kaz3g]

My head hurts. I think i need a Bex and a good lie down.

Can you still buy Bex?

 

And Crezzi has it right with cruising levels below 5000' ... No more maybe. It's another almost strict liability offence.

 

Note that MSH has no such defence of not being able to comply so it still begs the question "how do you do a VFR rules approach to MBN or MEN using one of the reporting points at 1500 and still fly at a height from which an emergency landing due to a failed engine could be conducted without endangering persons or property on the ground or water (arrgghhh --- swimmers below!).

 

kaz

 

 

[turboplanner]

Ozzie, I believe the change to 30 minutes was to match ICAO.

 

Thepart 91 proposal is you must arrive with at least 30 minutes fuel on board, never mind that you may have needed some of that for headwinds etc, which was the origional purpose. You can be ramp checked and you must have 30 minutes fuel on board. Furthermore non compliance will be a crime, not just a misfeasance.

 

Drafted by Dropkicks?

 

 

[Guest davidh10]

"how do you do a VFR rules approach to MBN or MEN using one of the reporting points at 1500 and still fly at a height from which an emergency landing due to a failed engine could be conducted without endangering persons or property on the ground or water (arrgghhh --- swimmers below!).kaz

You are exempt if in the process of landing or taking off. This applies today at some ALAs where you fly over houses at less than 500' AGL on base and final.

 

 

[Bryon]

No disrespect to you all, but I really think we need a legal opinion on this

 

It is so confusing, it is doing my head in

 

"an emergency landing due to a failed engine could be conducted without endangering persons or property on the ground or water. "

 

How can we predict when an engine failure will occur and that all is safe on the ground

 

We may be at 4500 feet for gods sake and over a built up area with no hope of reaching an airfield because the govt sold them off to private developers

 

What do we do then???

 

Bryon

 

 

[Guest davidh10]

It is certainly very confusing, even as to applicability to RAA aircraft and pilots.

 

Please correct me if I've misread it, but the covering statement {and Part 91.005(1)} seems to be saying that Part 91 only applies to VH aircraft, since recreational aircraft and pilots will be covered by the future Part 103. Looking at the CASA website under the Part 103 topic it is really difficult to decipher what state it is in.

 

Part 103 seems to have forked and the rules that were to be proposed are going to be:-

 

1. Implemented early by changing the current CAOs under project OS 08/13. Implementation of this refers to a "Part 103 NPRM", however I cannot find anything that resembles the description except NPRM0603OS.
    
    
   
2. NPRM 0603OS seems to be in limbo from its closed comments state in 2007, but talks partially about the sorts of rule changes that the RAA magazine's last two editions have been promising to be imminent. Yet what we are expecting as changes differ slightly from what was in this NPRM, so where's the NPRM that RAA is heralding currently?
    
    
   
3. Some future, unnamed and not yet approved project to draft Part 103, based on Part 91, if you read the Part 103 topic page. So are we reading Part 91 now to see what is likely, when combined with the CAO amendments?
    
    
   

 

 

So where do RAA aircraft and pilots fit in this tangled web?

 

 

[kaz3g]

You are exempt if in the process of landing or taking off. This applies today at some ALAs where you fly over houses at less than 500' AGL on base and final.

Hi David

 

Yes, perfectly true, but you aren't landing at a controlled airport until you receive a clearance to land (class C) or join the circuit (classD).

 

I just took a quick look at the Melbourne VTC and found that Doncaster Shopping Town (DSN) is 11NM from Essendon while Kalkallo (KAO) is 12NM. These are the two most commonly used VFR entry points for traffic arriving into Essendon from east and north respectively. DSN is well inside of the built-up area and KAO is rapidly becoming likewise.

 

I know many of you do not currently fly into controlled airports but many have also made it clear they would like to be able to. But even if you are not looking to enter controlled airspace and simply want to use your permit to fly your RA aircraft over a built-up area (I think I'm correct that you can do that with a certified engine?), have a think about how you might have to detour to comply with MSH if you want to head from say the Yarra Valley (YCEM or YLIL) to join the VFR coastal route west and head to say, Lethbridge. At the moment, you could track direct to Brighton below 2500. This would have you at the right level for the track and just below the CTA step, but there are no outlanding opportunities once you get past around ATV10 so you aren't at the MSH or higher.

 

The number of controlled airports is also going to grow very significantly from what I have read recently. AOPA reports that ASA is proposing to implement radar-based approach control services at Hobart, Launceston, Albury, Tamworth, Coffs Harbour, Alice Springs, Rockhampton, Mackay, Hamilton Island, Sunshine Coast, Broome and Karratha. And no doubt there will be more because they are now getting ADSB equipment which is far cheaper - for them - than the old ground-based system. No more whizzing into Albury or Alice, for example, when the towers are closed and class D becomes a CTAF, because they will now become class C H24.

 

kaz

 

 

[Yenn]

The biggest problem for us with this legislation is the "Strict liability"

 

That means that if you are descending from 4500' for example to 2500' to maintain the correct quadrantal level and avoid cloud, you can be busted for going through the other quadrants in the wrong direction. There is no ability to go before a magistrate and explain why what you were doing is sensible. It only takes CASA to point the finger and you are a criminal, you will have a criminal record and your ability to even travel by airline to places such as the USA will be curtailed.

 

Tha whole problem is that the lawyers seem to have taken over CASA and all they want to do is stop us flying or meke it too expensive.

 

Have your say to CASA.

 

 

[John Brandon]

It is certainly very confusing, even as to applicability to RAA aircraft and pilots.Please correct me if I've misread it, but the covering statement {and Part 91.005(1)} seems to be saying that Part 91 only applies to VH aircraft, since recreational aircraft and pilots will be covered by the future Part 103. Looking at the CASA website under the Part 103 topic it is really difficult to decipher what state it is in.

 

Part 103 seems to have forked and the rules that were to be proposed are going to be:-

 

1. Implemented early by changing the current CAOs under project OS 08/13. Implementation of this refers to a "Part 103 NPRM", however I cannot find anything that resembles the description except NPRM0603OS.
    
    
   
2. NPRM 0603OS seems to be in limbo from its closed comments state in 2007, but talks partially about the sorts of rule changes that the RAA magazine's last two editions have been promising to be imminent. Yet what we are expecting as changes differ slightly from what was in this NPRM, so where's the NPRM that RAA is heralding currently?
    
    
   
3. Some future, unnamed and not yet approved project to draft Part 103, based on Part 91, if you read the Part 103 topic page. So are we reading Part 91 now to see what is likely, when combined with the CAO amendments?
    
    
   

 

 

So where do RAA aircraft and pilots fit in this tangled web?

The last few paragraphs of the document at http://www.recreationalflying.com/tutorials/regulations/benchmarks.html provide some information on the current status of the changes to the three RA-Aus exemption CAOs. These changes are required by RA-Aus so that we get early implementation of a few items that will appear in CASR Part 103. Those few CAO changes would not be necessary if Part 103 was just around the corner:

 

Regulatory environment

 

CASA's Project OS 08/13 'Early implementation of certain proposed CASR Part 103 standards via CAO' has still not come to fruition but is expected in 2011*, hopefully providing revised exemption CAOs incorporating the following changes:

 

• MTOW for CAO 95.55 aircraft to be the lower of the aircraft's design MTOW or 600 kg.

 

• Flight over water to come in line with GA requirements (not for powered 'chutes)

 

• Flight above 5000 feet approved in line with GA; i.e. flight above 10 000 feet only if pilot and passenger supplied with oxygen from an approved system

 

• Entry to active restricted areas (dependent on conditional status).

 

* The revised hang-gliding CAO 95.8 was issued 30 March 2011.

 

( CASR Part 103 and Part 149 seem to have disappeared from view; however, in March 2011 the Director of Aviation Safety [CASA's chief] announced that CASA's recreational and sport aviation regulatory functions have been moved from the Standards Division to the Office of the Director of Aviation Safety, reporting to the Associate Director of Aviation Safety. Hopefully this will result in more decision making being directed toward the long overdue promulgation of CASR Part 103 'Sport and Recreational Aviation Operations' and Part 149 'Sport and Recreational Aviation Administration Organisations'.

 

The long history of the proposed Part 103 and Part 149 legislation perhaps reveals a reason for the Director to now assume close oversight. The first notices of proposed rule making [NPRM] relating to Parts 103 and 149 were published 13 years ago (about two years after initial industry discussions) as NPRM 9808RP and NPRM 9805RP. These were subsequently followed, in 2000, by a set of rules drafted by the Attorney General's Department as another NPRM, which was promptly withdrawn by the then Director of CASA.

 

Six years later, in December 2006, CASA published NPRM 0603OS, the current proposal relating to Part 103 followed, in July 2007, by NPRM 0704OS, the third proposal relating to Part 149.)

 

If you read the 4th paragraph in the foreword plus section 3.1.3 of NPRM 0603os http://www.recreationalflying.com/tutorials/regulations/nprm0603os.pdf you will see that only the fundamental operating rules from CASR Part 91 will be enclosed within Part 103. Other rules of that type appropriate to each individual administration organisation will be included in those organisations' procedures/operating manuals. So it's only the fundamental rules you need to be concerned with in the current Part 91 nprm. The question is which are the 'fundamental' flight rules?

 

The following section of the regulatory framework page has a bit more information on the CAOs.

 

http://www.recreationalflying.com/tutorials/regulations/regulations.html#exemption

 

cheers

 

John

 

 

[Guest davidh10]

Hi DavidYes, perfectly true, but...

 

I know many of you do not currently fly into controlled airports but many have also made it clear they would like to be able to. But even if you are not looking to enter controlled airspace and simply want to use your permit to fly your RA aircraft over a built-up area (I think I'm correct that you can do that with a certified engine?), have a think about how you might have to detour to comply with MSH if you want to head from say the Yarra Valley (YCEM or YLIL) to join the VFR coastal route west and head to say, Lethbridge. At the moment, you could track direct to Brighton below 2500. This would have you at the right level for the track and just below the CTA step, but there are no outlanding opportunities once you get past around ATV10 so you aren't at the MSH or higher.

 

...

This is a difference between GA and RAA. GA under CAR157 stipulates a minimum altitude over cities, towns and populous areas, however for RAA, eligible aircraft, under CAO95-32 have the additional caveat of being at an altitude that allows the aircraft to glide clear. The same clauses are in some other CAO-95 parts, but I am unfamiliar with those.

One could interpret the new rule as being intended to be a relaxation of the RAA restriction, as we would now not have to glide clear, but rather just to a point that did not create a danger to persons or property on the ground... a park, golf course, green zone or similar might comply, depending upon its occupancy at the time.

 

The wording is rather perverse though, as any landing, emergency or otherwise is conducted at ground level, albeit that the procedures to commence a landing approach will be commenced at the cruising altitude. By changing the dependency from gliding clear of the populous area, to not endangering persons or property on the ground, one would have to know whether there were people on the ground in a park for instance to determine if it was an allowed landing spot. By including property damage, it would be almost impossible to conduct an emergency landing anywhere except on an airfield!

 

I suspect that section needs to be wordsmithed to have a deterministic meaning and to bring it back to some form of reality in terms of the availability of emergency landing areas.

 

 

[Guest davidh10]

The last few paragraphs of the document at ...

Thanks John.

So if we take NPRM 0603OS at its word, the items contained in the Part 103 proposal in that NPRM should have corresponding items in Part 91 if they are "fundamental' flight rules", and after Part 91 becomes law, those parts and any new "fundamental' flight rules" in the Part 91 would be copied back to update the proposed Part 103.

 

On that basis to assess the effect on RAA flying, we need to review both these documents together, as well as what will be transferred to Part 103 from the updated CAO 95-nn documents.

 

 

[John Brandon]

Thanks John.So if we take NPRM 0603OS at its word, the items contained in the Part 103 proposal in that NPRM should have corresponding items in Part 91 if they are "fundamental' flight rules", and after Part 91 becomes law, those parts and any new "fundamental' flight rules" in the Part 91 would be copied back to update the proposed Part 103.

 

On that basis to assess the effect on RAA flying, we need to review both these documents together, as well as what will be transferred to Part 103 from the updated CAO 95-nn documents.

Yes that would be correct. The draft Part 103 attached to the NPRM should contain all the rules for height and distance and collision avoidance (which one could presume to be fundamental) but as the NPRM was issued December 2006 there may be differences from the current Part 91 proposal, hence the need for comparison.

 

cheers and happy reading.

 

John

 

 

[Yenn]

Did anyone read my post on this. Whatever CASA has set up for GA will most likely apply to RAAus. As the wording stands CASA is making the rules, policing the rules and there will be no judge or jury, CASA will have that role also.

 

I don;t know about you but I don;t trust the faceless legal experts in the CASA ranks. With the "Strict liability" Not only will you have no recourse to a magistrate, but you will have a very hefty fine to pay and it is all at the say so of some CASA operator. If he got out of bed on the wrong side, or he doesn't like your face you can be in deep trouble.

 

 

[Guest ozzie]

What have the responses to this by the RAAus. any protest or is it up to the individual?

 

 

[Guest davidh10]

Did anyone read my post on this...

yes, but was trying to get my head around what to read, as in my posts above. Now have hundreds of pages to read. Oh joy!