23 June 2020
The Australian Helicopter Industry Association (AHIA) is Australia’s peak body representing the Australian helicopter industry. The primary objective of the AHIA is to promote the Australian helicopter industry by working with governments, regulatory authorities and the community to ensure it is a safe, efficient and viable industry readily able to adapt to the continuing needs of our customers by the pursuit of global industry best practice.
The AHIA represents a domestic helicopter industry operating the world’s second largest fleet and which is an international leader in many operational applications including fire-fighting, training, EMS, security and resources exploitation to name just a few.
The AHIA has an obvious interest in the Civil Aviation Safety Authority’s (CASA) Consultation Draft for a proposed new Manual of Standards Part 138 (Aerial Work Operations) and the associated Regulation amendments (Consultation).
The AHIA understands that several of its members intend to send submissions to CASA in response to this Consultation. The AHIA broadly supports those submissions and recognises the technical expertise and depth of operational experience our members bring in providing those submissions.
Finally, the AHIA is aware that submissions have been made to CASA by other aviation industry bodies such as the AAAA and industry participants including QBE Insurance Australia. The AHIA supports generally the substantive theme and content of those submissions.
It is clear to the board and members of the AHIA that the collective Australian aviation industry does not support the MOS / regulation as presented for the purpose of the current Consultation. This is discussed further in the submission below.
1. TECHNICAL WORKING GROUP (TWG) / AVIATION SAFETY ADVISORY PANEL (ASAP)
The Consultation Summary document acknowledges [page 24] that the TWG did not provide full support for the proposed MOS to be publicly consulted and yet despite this, CASA determined it appropriate to seek additional industry and community feedback. This statement greatly understates the position of the TWG on the issue of proceeding to public consultation.
It is troubling to the AHIA that the advice of the TWG and the ASAP (i.e. that the MOS was not as yet fit for purpose) was disregarded by CASA. It is worth noting that most members of the ASAP, and the respective TWGs, are volunteers who freely offer their time and considerable experience to participate in these meetings while still trying to operate their own aviation businesses, and during very challenging economic times.
CASA’s decision to ignore the advice of the TWG / ASAP (i.e. do not send the 138 MOS for public comment at this time), runs the real risk of eroding the relationship between CASA and these volunteers to the possible, likely, detriment of future industry cooperation / participation.
2. TIME PERIOD FOR CONSULTATION SUBMISSIONS
The time period provided for public submissions on the Consultation was far too short and fundamentally unfair to industry and the public. The AHIA specifically draws CASA’s attention to the fact that the release of the Consultation coincided with the serious industry wide impacts of COVID-19 restrictions and economic fallout. In addition, many operators were also coming off the back of an unprecedented aerial fire-bombing season.
While the AHIA understands that many of its members have or will make submissions by the due date or within the two-week extension period offered on written request by CASA, there is a very real risk that many operators simply won’t be in a position to respond to the Consultation due to the business factors above, and the overwhelming amount of Consultation materials required to be reviewed in such a short period of time. This serves only to undermine the value of the Consultation as being representative of ‘industry’ views and it should be clearly understood by CASA (and the Government) that silence from industry does not constitute agreement.
3. REGULATORY OVER-REACH
The AHIA has a fundamental concern that the Part 138 MOS, appears to reach into the cockpit with a view to over-regulating the behaviour of operators and their crew. The AHIA submits this is not an appropriate regulatory model and consideration should be given to a more outcomes focused regulation and MOS.
Regulatory overreach undermines the role of the Chief Pilot and the company’s Operations Manual, and potentially erodes the relationship between CASA and the industry. The AHIA submits that the more appropriate approach for CASA (and in turn industry) is for an outcomes-focussed Part 138 MOS that allows operators and their personnel the flexibility to innovatively pursue operational safety relative to the size and scale of their operation.
In addition, the AHIA submits that in its proposed form Part 138 MOS does little to support industry growth and encourage new entrants, but rather constructs barriers to entry. Such is the complexity of the proposed Part 138 Regulation and MOS that the AHIA submits most new industry entrants could not understand the document without engaging (at a likely significant cost) a formal industry consultant. Constructing such barriers to new industry entrants is clearly inconsistent with the federal government’s regulatory development guidelines and is plainly not optimal for the industry or Australia.
4. INTERNATIONAL BENCHMARKING
There is no evidence in the Consultation material that any international benchmarking has been applied or attempted to be applied to the proposed Part 138 MOS prior to the release of the Consultation. The AHIA submits that international benchmarking is a very useful exercise given that a number of ICAO countries with mature helicopter industries carry out similar or identical operations. CASA will be well aware that the advantage of international benchmarking is that it can ameliorate the opportunity for Australian regulations to become overly prescriptive and complex [see point 4 above]; at some 132 pages the Part 138 MOS is heading in this direction.
5. AIR OPERATOR CERTIFICATE CHANGES FOR AERIAL WORK AND PASSENGER CARRYING OPS
An AOC is presently required for aerial work operations and passenger carrying charter. Many aerial work activities incorporate passenger and / or cargo carriage. For example, this may include aerial surveying, aerial spotting, feral and diseased animal control, and power line inspections/surveys.
The Consultation Summary Document [Page 5] states that “... and amendment to the requirement for an Air Operators Certificate (AOC) to an Aerial Application Certificate” and Page 6: “Part 138 of CASR introduces the following certification concepts for aerial work operations: - an aerial work certificate rather than an AOC.”]
Does the proposed shift away from an AOC and the introduction of an aerial work certificate adversely impact the application of the CACLA to passenger and cargo liability claims arising from Aerial Work Activities?
The answer appears to be in the affirmative.
The AHIA is concerned that by moving an aerial work passenger from the coverage of an AOC and the protection of CACLA it is inferring they are a second-class passenger due only to the fact that their presence is related to them being a willing participant in the undertaken task.
This does not appear to align with other industrial acts or commercial transportation of personnel in other industries.
The AHIA are aware that other aviation industry participants have made a submission on this issue and confirms it supports those submissions. The AHIA considers it primary to the interests of its members that CASA urgently address its intentions in regard to this matter so that aviation operators have certainty regarding the application of the CACLA regime to passenger and cargo carrying aerial work operations under the proposed Part 138 / MOS and a very clear understanding of the likely insurance premium impacts (i.e. increasing premiums / unavailability of cover) arising from the possible non application of the CACLA. This issue will require a plain English explanation from CASA to affected operators.
6. PLAIN ENGLISH GUIDES AND SAMPLE DOCUMENTS
The AHIA believes that the structure of the regulations as proposed is a classic example of over complication of a process and overly prescriptive for industry to follow. As proposed, it requires four forms of documentation and instructive documents to carry out what now takes two steps.
Currently there is a regulation and an operations manual, that is, one step each by the regulator and operator. Under the proposed changes it will take four steps; the regulation, MOS and plain English guide and an operator’s operations manual. Three of the four steps are doctrine developed by CASA, which has been already acknowledged in this submission, is ignoring the Industry advice on the content and is trying to slip through an unworkable program. The same approach was adopted with Part 61 for similar political and bureaucratic goals with a disastrous outcome resulting in a legacy the industry is still suffering today and will into the future.
7. AERIAL WORK CERTIFICATE FORM & SUBSTANCE
The AHIA understands that the AAAA recently submitted that a major issue for Part 138 and the MOS, is how categories of aerial work proposed in Part 138 will translate into what operators must have in their operations manuals and what the ‘aerial work certificate’ will specify from an operational allowance point of view.
The AHIA agree with this point as it is likely to introduce complexities around the spectrum of insurance cover that an operator will require of its particular activities. Advice from insurers is that greater scrutiny will be required for them to identify the coverage required and also to make judgment of insurance claims.
8. STRICT LIABILITY OFFENCE PROVISIONS
The AHIA are aware that Part 138 provides for the application of strict liability offence provisions in respect of almost every regulation in the Part.
CASA has stated that the policy objectives for the proposed Part 138 suite is to offer aerial work operators an outcome-focused regulation designed to enable operators to determine (and implement) the most appropriate risk management, training standards and competency compliance strategies for the size and scale of their operation. Set against that policy objective, the imposition of significant strict liability offence provisions is arguably inconsistent with the stated intent and purpose of the Part 138 suite.
9. SPECIFIC CONCERNS/QUESTIONS AND RECOMMENDATIONS
There are concerns about the wording of the definitions of Flight Crew, Technical Specialist and Aerial Work Passenger. The terms are used throughout the MOS and their meaning needs to be clearly defined.
The stated aim of this proposed policy “is to appropriately differentiate between air transport passengers and aerial work passengers, by identifying classes of people that from a risk perspective, are necessary to the aerial work operation and appropriate to be carried”.
The means by which this is may be achieved is problematic; in particular, the definition of Aerial Work Passenger lacks clarity and is difficult to understand. For example, an existing or new operator is required to refer to multiple pieces of regulation in order to decipher the definition (i.e. from Part 138 to the MOS to the CASR Dictionary (which it should be noted does not yet include a reference to aerial work passenger making it somewhat unworkable)). This presents an unnecessarily difficult process for both current operators and also potential new entrants into the aerial work field.
The carriage of those deemed essential to an aerial work task is a significant issue for operators. This important aspect should not be eroded by regulation and a MOS which lacks precision and is difficult to decipher in terms of the definition of what an aerial work passenger is, or is intended to be.
The AHIA invites CASA to revisit the proposed definition and to address the difficulties outlined above. Finally, it is understood that the AHIA is not alone in regard to its concerns around this Part of the MOS, and that other industry bodies have made submissions voicing similar views.
Will multiple AACs be required for different aerial operations?
If an operator is involved in passenger carrying operations, as well as aerial work, will an AOC and multiple AACs be required? Will current AOCs transfer to the new AAC environment?
It is noted that persons wanting to make submissions to the DRAFT 138 MOS need to move between multiple source documents on the CASA website. This is onerous and any substantive issues of difference between the source documents should have been fully summarised in the “Summary of Proposed Change” document.
Air Crew Training and Checking: the MOS states the need for a formal checking and training system. Is this standard in addition to the standards described in current Operations Manuals?
It is mentioned in the Summary of Proposed Changes that outcomes-based guidance material is being developed by CASA. Will this material be available before the implementation of the 138 MOS? If so, when?
When will the plain English guides and Operations Templates be available? This material could provide considerable assistance to operators, and particularly to new industry entrants. The AHIA could assist in the guides and templates promulgation.
It is somewhat ironic that plain English guides are even necessary. Shouldn’t plain English be already entrenched in the 138 Regulation and the MOS?
It is claimed that a key aspect of the CASR Part 138 is that it provides more autonomy for operators to assess operational risk and develop risk mitigators without continual requirements for CASA approval. In short, more operational autonomy is enabled.
It is still unclear as to whether the 138 MOS has achieved this goal.
The fitment of an UMS for certain more complex operations may require further discussion and explanation between operators and CASA to ensure that these requirements are fully understood. Confusion exists across the industry on this point.
The transitional rules process is subject to further public consultation. Will the 138 MOS TWG and the ASAP be consulted and listened to before moving to the public consultation stage?
The “Limited Aerial Work Operations” may require clarification with respect to operations over land owned or ‘occupied’ by the registered operator.
AWZ definitions are obscure; some could be interpreted as all areas over which aerial work operations are conducted. This definition may need more clarity.
Chapter 11.02 (1) Up to nine aerial work passengers allowed on IFR flights. Is this an appropriate standard for this type of operation?
11.02 (2) First sentence written in the negative. Requires a rewrite in the positive.
11.03 Definition of approved rotorcraft flotation – is it adequately defined?
Chapter 13 – Risk Assessment: How is ‘an unacceptable level of risk’ defined?
Is it onerous to be left to the operator entirely?
13.04 (5) – Is it onerous for an operator to be compelled to draft an AWZ plan and seek CASA approval for the plan? How long are approvals likely to take?
Is the minimum of 15 days for the approval submission by the operator reasonable? What about cost and time factors for operators having to seek these approvals?
Why does the operator need to keep the approval current for three years after the initial external load approval. Couldn’t this be held by the CASA regional office?
Chapter 14.02 (7)(8) – the comments on aircraft controllability are overly prescriptive and are the normal duties of the PIC/Chief Pilot
Chapter 24.07 (5) - in terms of assessing an individual for check and training duties, who in CASA will make this assessment and what are the minimum qualifications of the CASA Assessor?
Chapter 27.03 (3) – task specialist trainer: is there an approved training program for the trainer and if not, will there be a cost imposition on the operator?
The MOS, Para 9.04 requires turbine engine powered aircraft fitted with redundant means of supplying power to the hydraulic system for operations without any justification or risk assessment. This is overly prescriptive.
Para 15.06 (3) (e) is confusing as it includes language more appropriate to multi engine operations. The requirement of para 15.06 3 (e) can be met on any helicopter engine type, not just a turbine engine.
The Part 138 and MOS development process has been underway for over ten years. Thousands of public service and industry hours have been spent on it. The cost for all parties is no doubt huge.
It is virtually the same for Parts 61, 66, 141 and 142.
Part 135 development has been underway for over fifteen years and is not close to finished given that the related maintenance sections are still being constructed.
How did regulation development become an activity with a life of its own? From an aviation industry perspective regulation development seems to have become an end in itself.
The Part 138 MOS is a manifestation of an extended and complex regulation development culture that has been allowed to flourish over the past 20 years. It is acknowledged that regulation development began with the intention of reducing the number of operational exemptions but this goal has been damaged by complexity and overreach.
Historically, the aviation industry supplies around 73% of CASA’s funding. The industry pays for the privilege of being regulated and is CASA’s major stakeholder. It complements CASA’s commitment to safety and, thus far, has been willing to share the burden of regulation development.
The AHIA has heard from many helicopter operators that Part 61 and its associated MOS are still a considerable burden on industry. There appears to be very little industry appetite for further regulation change during these difficult economic times for the industry.
Except for regulations that are close to completion, it is suggested strongly that there be a three-year moratorium on further regulatory changes or there will be a significantly reduced industry to regulate.
Operators must be given time and space to re-establish their businesses after a largely government-imposed downturn.
It is accepted that CASA is the aviation regulator however now is the opportunity for CASA to be an aviation enabler. The helicopter industry, and the aviation industry in general, is under severe stress. The industry needs simple, clear and concise outcomes-based regulations, carefully tailored for the various sectors, that will allow the industry/sectors to recover and eventually grow.
The 138 MOS Draft is another example of an overly complex document foisted on an industry that is literally in survival mode.