Part 43 - Food For thought.

[walrus]

This is copied from Pprune in its entirety. Food for thought.

 

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.

 

Reply

1

Key point 2: Registered operators of Part 43 aircraft should not be exposed to regulatory action and criminal liability as a consequence of circumstances of which they have no knowledge or control

Background 2a

Under the new rules as drafted, the registered operator of any Part 43 aircraft commits a strict liability criminal offence if the aircraft is operated for any flight and any maintenance carried out on the aircraft was not carried out by a person or organisation qualified to do the maintenance. That offence is in draft CASR 43.020. See, in particular: draft CASR 43.020(2)(b).

Scenario 2a

Prior to hiring out Cessna 172 Alpha Bravo Charlie to the pilot about to head off on the round Australia adventure, the registered operator took the aircraft to ACME Aviation Maintenance Pty Ltd and asked for an annual and 100 hourly inspection to be carried out on the aircraft. A week later ACME hands back Alpha Bravo Charlie to the registered operator.

Unbeknown to the registered operator, the oil and oil filter change, compression checks (including spark plug removal, cleaning and replacement) and magneto timing adjustments on Alpha Bravo Charlie’s engine were carried out by an unqualified and unsupervised motor mower mechanic who is a mate of ACME’s CEO. But the offence is made out once that maintenance was performed by someone unqualified and unsupervised. The registered operator’s lack of knowledge of that fact is irrelevant. That is how strict liability works.

Question 2a

What is safety basis for exposing the registered operator to regulatory action and criminal liability those circumstances?

Answer 2a

There is no safety basis.

Discussion 2a

Many registered operators of aircraft have little-to-no knowledge or control over what happens behind the closed hangar doors of an aircraft maintenance organisation. If a registered operator rings CASA to ask for confirmation that all maintenance done behind those closed hangar doors is being done by appropriately qualified and supervised personnel, that confirmation will not be provided. CASA does not know. But nor does the registered operator.

Many registered operators of Part 43 aircraft have little-to-no idea as to what precise qualifications and approvals a person or organisation must have in order lawfully to carry out maintenance on aircraft and aeronautical products. If a registered operator rings CASA and asks what those qualifications and approvals are in the case of the aircraft of which the person is the registered operator, and for a list of organisations and individuals with those qualifications and approvals, that request will be denied by CASA.

Over a couple of decades of aircraft ownership either personally or through a corporate structure, I have never asked to see the certificates or licences or approvals of any organisation or person who has charged me for maintenance on those aircraft. For all I know, they could all have been uncertified and unqualified. CASA has never reviewed a maintenance release issued for one of those aircraft and investigated what certificates and qualifications and approvals were held by the individuals who purportedly did the maintenance required for the issue of the maintenance release or were held by the organisation which issued it. For all I know, the maintenance releases could all have been (very expensive) fakes.

What CASA is proposing is analogous to exposing the registered operators of cars to criminal liability for what happens behind the closed doors of a garage with ‘Motor Mechanic’ painted on the doors, when the registered operator has no expertise, knowledge or control over what should and is being done to the car and by whom behind those doors.

Conclusion 2a

The registered operator should not be exposed to regulatory action and criminal liability as a consequence of circumstances outside their knowledge and control. This is not a situation in which strict liability is appropriate.

The people giving instructions and making decisions on the framing of offence provisions in this package of legislation should (re)acquaint themselves with the content of the Attorney-General’s Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers after, more importantly, informing themselves of the expertise of registered operators of Part 43 aircraft and the detail of how maintenance is arranged and done in the real world.

In the real world, maintenance of many Part 43 aircraft works just like the maintenance of cars: Someone who may have little idea about what goes on under the bonnet of the car, or of what its maintenance manual says, just drops the car off, at a date or number of kilometres written on a sticker on the windscreen, to an organisation that is assumed to have expertise in the maintenance of cars, the organisation gets some people to do stuff to the car and then it is returned with a bill for the work. The person does not know who did what to the car or of what their qualifications are.

If the framers of these offence provisions are labouring under the misconception that the imposition of strict liability will ‘encourage’ registered operators of aircraft to gain expertise they do not have in relation to aircraft maintenance requirements and the qualifications and certificates and approvals that must be held by those doing it, I would suggest they ask themselves this question: What would you do as a car owner if you were exposed to criminal liability each time some unqualified person, of whom you have no knowledge or control, carried out maintenance on your car behind the closed doors of a mechanic’s garage? (And to address a layperson’s likely misconception: Many cars these days are far more complex and have far more components than many Part 43 aircraft.)

If CASA’s position is that it would not take regulatory action against a registered operator in the kinds of circumstances set out in the scenario, or that there are defences available to the registered operator if the circumstances are referred for prosecution, that would demonstrate – once again – that CASA has a fundamental misunderstanding about the appropriate scope of offence provisions. Criminal laws have consequences, whether or not they are enforced by a regulator like CASA in a particular case.

In the event of an accident, laws matter to coroners and insurers and judges, all of whom will reasonably assume than any and all circumstances that fall within the scope of an offence provision are intended to be an offence. If CASA’s position is that it would not take regulatory action against a registered operator in the kinds of circumstances set out in the scenario above, there should be no scope for CASA to take any regulatory action against the registered operator and there should be no scope for them to be exposed to criminal liability and have to argue defences in those circumstances in the first place.

I remind CASA of the key principle set out at the start of the provisions in the Attorney-General’s Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers about strict liability (omitting the text about absolute liability):
 

Quote:

The requirement for proof of fault is one of the most fundamental protections in criminal law. This reflects the premise that it is generally neither fair, nor useful, to subject people to criminal punishment for unintended actions or unforeseen consequences unless these resulted from an unjustified risk (ie recklessness).

The application of strict … liability negates the requirement to prove fault (sections 6.1 and 6.2 of the Criminal Code). Consequently, strict … liability should only be used in limited circumstances, and where there is adequate justification for doing so. This justification should be carefully outlined in the explanatory material.

Whilst CASA usually simply invokes the safety of air navigation as the justification for the ever-growing number of strict liability offences in the rules – which justification is usually accepted during the scrutiny process because most of those conducting the scrutiny are bamboozled by the mystique of aviation and assume that the greater the number and scope of aviation offences there are the safer they will be when flying – the fact is that strict liability offences have a causally beneficial operation or – to use the words of the Guide quoted above – are “fair” and “useful”, in only specific kinds of circumstances. The primary practical outcome of CASA’s default rather than limited use of strict liability offences is a continuation of the parlous state of its reputation and trustworthiness among many in the aviation community.

If CASA persists with strict liability in the kinds of circumstances set out in the scenario above, CASA should make sure that all registered operators of Part 43 aircraft know that when these new rules finally come into force, registered operators will be exposed to regulatory action and criminal liability as a consequence of circumstances of which they usually have no knowledge or control. And it will be no answer for CASA to say there may be defences available in the case of a prosecution, because being subject to prosecution action and successfully defending it is a protracted, costly and stressful process through which someone should not have to go in the first place in the kinds of circumstances set out in the scenario.

Background 2b

Section 3.26 of the draft MOS says that a registered operator “must ensure” that, for example, the aircraft’s total time in service is recorded in writing “immediately after the last flight of a day”. See, in particular, ss 3.26(1)(a) and 3.26(4)(a)(i). The words “must ensure” denote an unavoidable requirement. Trying one’s best but failing is not good enough. The word “immediate” denotes a requirement that must be satisfied at once, without delay.

Under the new rules as drafted, the registered operator of a Part 43 aircraft commits a strict liability criminal offence if the aircraft’s total time in service is not recorded in writing immediately after the last flight of a day. That offence is in draft CASR 43.017. See, in particular, draft CASRs 43.017(1), (3) and (4)(a).

Scenario 2b

The pilot who hired Cessna 172 Alpha Bravo Charlie has headed off on the round Australia adventure. For many days, and sometimes weeks, the registered operator has no contact with the pilot and, in any event, the registered operator has no first-hand knowledge of whether, or for how long, Alpha Bravo Charlie is being flown each day and has no first-hand knowledge of whether the pilot is recording that time in writing immediately after the last flight of each day the aircraft is flown.

Unbeknown to the registered operator, the pilot is just keeping an eye on the aircraft’s ‘Hobbs’ meter, as the pilot knows that the 50 hourly oil and oil filter change is the next maintenance due, and that will be when the ‘Hobbs’ meter indicates 1234. But an offence is made out each day of flying when the registered operator has not ensured that TTIS is recorded in writing immediately after that day’s flying. The registered operator’s lack of knowledge of the fact of non-recording is irrelevant (as is the registered operator’s lack of power to do anything practical about it anyway in the circumstances). That is how strict liability works.

Question 2b

What is safety basis for exposing the registered operator to regulatory action and criminal liability in those circumstances?

Answer 2b

There is no safety basis.

Discussion 2b

The relevant provision in the current rules is CAR 43B(1). It says:
 

Quote:

On the completion of flying operations on each day that an aircraft is flown, the owner, operator or pilot in command must record on the maintenance release the total time‑in‑service of the aircraft on the day.

That regulation imposes an obligation that may be discharged by any one of three persons, for a reason: It was drafted on the instructions of someone who understands how lots of aircraft are operated in the real world. Whilst it is true that if none of the three mentioned persons records TTIS at the end of each day’s flying all of them commits an offence of strict liability, that is precisely what gives the pilot in command an incentive to record TTIS in accordance with the CAR, and gives the registered operator leverage to apply to the pilot to do so, in the kind of scenario set out above. If regulatory action is being considered against all of them, the only person in the above scenario with first-hand knowledge of the aircraft’s TTIS and control of the MR after each day’s flying – the pilot – is the one who is likely to be the subject of the action.

It would be helpful if the person who chose to include the word “immediately”, in the registered operator’s obligation to “ensure” that the aircraft’s total time in service is recorded in writing “immediately after the last flight of a day”, were to provide some insight into their thinking and intention in using that word. Does that require recording of TTIS within 1 minute after the end of the flight? 5 minutes? 10? An hour? If the last flight of a day ends at 1100 hours local time, there seems to be no risk to safety if the aircraft’s TTIS is not recorded in writing until 2359 hours local time.

But the proposed rule creates, and CAR 43B quoted above has always created, a paradox. The obligation to ensure that TTIS is recorded only arises after the last flight of a day. However, sometimes pilots and registered operators will not know which of a potential number of flights will be the last for a day.

A typical example is an aircraft made available by an aeroclub or flight training organisation for hire by private pilots. I have on numerous occasions hired aircraft where the TTIS has not been entered on the MR because on the day the aircraft was most recently flown, each of the pilots who flew the aircraft knew that someone else had the aircraft booked after them but did not know that the subsequent bookings or last booking were/was subsequently cancelled. Consequently, none of them knew which of them turned out to be the last pilot to fly the aircraft on that day. Meanwhile, the officer of the registered operator of the aircraft is interstate.

If the actual safety purposes of the recording of aircraft TTIS is considered, the answers to questions as to who should be obliged to record TTIS, in what document and when become obvious. TTIS may be fundamental to the discharge of the registered operator’s obligations, but it is also fundamental to the discharge of a pilot’s obligations. Any pilot of an aircraft should be able to find out, before the commencement of any flight – whether that flight happens to be the first or third or whatever of that aircraft on that day – the aircraft’s TTIS at the commencement of the flight. That is because, unless the pilot knows the TTIS at that point in time, the pilot is unable to ascertain, with precision, whether sufficient time remains to conduct the proposed flight/s before required maintenance falls due.

Conclusion

See Conclusion 2a.

CASA should also consider imposing the TTIS recording obligation on the pilot in command as well as the registered operator, similarly to CAR 43B. CASA should also consider the ‘pros’ and ‘cons’ of imposing an obligation on the pilot in command to record TTIS at the conclusion of any flight, whether or not it happens to be the last one of the day, in some document which must be available to anyone who may subsequently fly the aircraft and specifies when required maintenance will fall due.

---

 

Key point 3: Please don’t introduce more undefined words that will create more uncertainty

The term “compensation or reward” appears five times in the draft MOS. As drafted, aircraft which carry a person (other than a crew member) for compensation or reward or are used to conduct flight training for compensation or reward are subject to 100 hourly inspections (as well as annual inspections) but other Part 43 aircraft are not: s 3.15(4). (There is specific provision for LSAs used in some ‘compensation or reward’ operations: s 3.05(1).)

There are numerous instances of the term “hire or reward” elsewhere in the Australian rules but, so far as I can tell, the draft Part 43 MOS is the only legislative instrument that uses “compensation or reward”. Neither the word “compensation” nor “reward” appears anywhere in FAR Part 43. The words used in FAR Part 91 – that is the FAR which determines whether an annual inspection or 100 hourly inspection, or both, are required for an aircraft subject of the FARs – the term “compensation or hire” is used.

One assumption of interpretation is that if different words are used, different meaning are intended. Each of the words “hire”, “compensation” and “reward” differs from the others. None of them is defined in the aviation safety rules in Australia.

Compensation is what people get for a sore back after been ‘tailended’ on the road. Is that the intended meaning for the purposes of the draft MOS? If a pilot’s mates pay for the fuel on their next outback flight in an aircraft of which the pilot is the registered operator, is the aircraft being used for “compensation” within the meaning of the draft MOS? If an instructor teaches student pilots for free, as a charitable act, is the warm inner glow the instructor gets from doing good a “reward” within the meaning of the draft MOS?

When some rules apply to aircraft operated “for compensation or reward” and others apply to aircraft operated “for hire or reward”, there will likely be unintended gaps or overlaps and there will certainly be doubt about the precise scope of any gaps or overlaps, absent protracted and expensive court and tribunal consideration and decisions. That outcome is precisely what the eye-wateringly expensive and never-ending regulatory reform program was supposed to avoid.

If someone made a sedulous decision to use the words “compensation or reward” instead of “compensation or hire” per the relevant FAR or “hire and reward” per the current rules in Australia, it would be very helpful if that person were to provide some explanation as to the reasons and understanding of the consequences. If it was not a sedulous decision, it would be very prudent for the words to be reconsidered in the context of the whole regulatory package. At the moment, there is nothing that I can find in the Part 43 ‘Plain English Guide’ about what CASA reckons the term ‘compensation or reward’ means in the draft MOS. (And while on the point of guidance material, I trust that CAAP 43B will be revised and updated when the CAR 43B is repealed and the new Part 43 commences, as the CAAP currently contains unsupported and potentially risky twaddle at paras 4.2.4 and 4.2.6.)

 

 

I keep thinking of taking up golf.

[facthunter]

Law of Strict Liability is a denial of basic rights. Even IF you are allowed to contest your case, their pockets are deeper than yours.

[jackc]

Now, from what I have heard from a learned source Part 43 may never see the light of day as it has to go through the the Senate  and may not make it, the LAMES Guild? may see to it that as a result of their efforts against it?