[Peetwo]

Duck 149 a catalyst perhaps? 



Excellent stuff Thorny and Ol'Tom I was kind of wondering what they had in place in the USofA for the sports/rec etc categories...

I've presently got a mutual tweeper (follower/following) that resides in the US who is all over the current series of fatal accidents in Alaska and Hawaii. So I asked him what they had in place to regulate commercial parachuting ops (re the Hawaii A90 fatal accident that killed 11 -   more on that soon in closing loops) and this was his answer:

...That’s a good question. Federal regulations (14 CFR Part 119) describe the certification requirements for air carriers and commercial operators, but exempts skydiving flights operating within 25 miles of the departure airport. As a result, skydiving flights are conducted in accordance with 14 CFR Part 91 and 14 CFR Part 105...

    
I guess that kind of gels with what rules (i.e FAR Part 61) a sports pilot has to adhere to in the States. 

However for now I want to come back to "K"'s post above.
   
Much like "K" I was somewhat perplexed by what NC was banging on about when according to our very own, Patron Saint of Aviation Safety, St Commode Part 149 is all over bar the shouting: Hansard - Oversight of CASA 19 November, 2018.

St Commode:..I understand, though, that the committee is interested in the self-administered sport sector and the comparison of the medical and other standards for pilots within the self-administered sector against those CASA regulated pilots. Firstly, I'd like to start with the self-administered sport aviation sector. This sector has been self-administered for many years. It conducts limited operations, and its pilots and aircraft are oversighted by approved organisations that are required to meet CASA's requirements to be approved. These requirements include key personnel with appropriate qualifications and experience; procedures which specify the scope of operations and how the organisation will comply with the regulations and the manual of standards; the maintenance of an appropriate structure to manage their approval functions; the maintenance of an appropriate audit and surveillance system, including safety management systems; processes to ensure procedural fairness for CASA review of internal decisions; and an assurance of reasonable, reliable and non-discriminatory access to membership.

Using RAAus as an example—and you heard from them this morning—they are a CASA approved organisation and require people who wish to access the benefits they provide to be members and to pay an annual membership fee. In return, RAAus oversight members' training and aircraft maintenance. Membership also includes a level of public and passenger liability insurance. The level of safety that RAAus offer is less than for aircraft certified, operated and maintained under the CASA system, and accordingly they cost less to operate. Consequently, RAAus aircraft are required to display a warning that persons who fly in the aircraft do so at their  own risk and that the aircraft is not operated to the same safety standards as a normal commercial passenger flight. CASR,

Civil Aviation Safety Regulation, part 149, approved self-administering aviation organisations, was made on 12 July 2018 and will commence on 14 July 2019. It was referenced on a number of occasions today. The proposed regulations were consulted extensively, and it also went through the Aviation Safety Advisory Panel and the technical working groups... 

Or if you prefer in pictures:

This invariably led to the now infamous St Commode deception/perception of misleading the Senate:

...That was in November 2017, when we announced these changes. AMROBA, the Gliding Federation of Australia, and AOPA, who were here at the table a few minutes ago, also signed off unconditionally on the part 149 self-administration regulations, which were consulted through the technical working groups, of which they were a part. I'm quite happy to table the document with their signatures on it, if you would like me to. In conclusion—

CHAIR: The inference there is that their evidence to this committee wasn't accurate?

Mr Carmody: Senator, I have a signed letter here, which I'm quite happy to table.

Senator PATRICK:  Perhaps they didn't understand the full circumstances.
CHAIR:  If we need to, we'll let them speak for themselves.

Mr Carmody:  Senator, perhaps they didn't, but they had a shot and they've made a number of allegations. I'm just making the point that they signed off on this as well. We respond to all of AOPA's letters, to the best of my knowledge—maybe not as quickly as they would like; we get a lot of letters. Finally, Senator, I would say that across some of the evidence today there has been a fair bit of cherrypicking, which is the reason why I would like to very briefly step through how this actually works and also how licensing and medicals actually work in the United States and the United Kingdom, because that's what we do. I'm quite happy to take some questions.

CHAIR:  Let's see if the senators are happy to have that tabled.

Senator PATRICK:  That's the signed document from—

Mr Carmody:  It's a signed letter of endorsement for part 149, approved self-administering aviation organisations. It has the signatures of all of the associations—all of the people who were there...

---

& then:

Thorny: "..Now compare this with Part 149 and the attendant MOS. Go on I dare you!.." 

However it should be remembered that Senate hearing occurred before another important date i.e the promulgation of the CASR Part 149 MOS legislative instrument. And that is I suspect where the problem now lies because remember the MOS is where a wannabe Part 149 association needs to refer for the nuts and bolts on how to function/be compliant with the regulation Duck 149. 

My guess is that as we are nearing the official Duck 149 activation date that the Alphabet soup 149 wannabes are coming around to the realisation of just how sinister and just how many potential gotchas there are within Duck 149.

The following part of the Hansard St Commode spells out (in plain English if you don't mind -   ) what exactly will occur once the 14th of July comes to pass:

..The regulations do not compel existing sport and recreational aviation organisations to become approved self-administering organisations. Existing organisations that do not wish to become part 149 organisations can continue to operate under properly conditioned exemptions, subject to relevant civil aviation legislation and CASA being satisfied that they are unlikely to have an adverse effect on the safety of air navigation. Such organisations will only be able to expand the scope of their aviation administration functions—that is, beyond their pre part 149 approvals—or issue additional authorisations if they hold a 149 certificate...

Hmm...clear as mud? - Nasty bunch of Duckers aren't they...  And that is why "K" is absolutely spot on when he says "the crocodiles have got you by the nuts" -   

But wait there is more because in the process of searching CASR Part 149 on Google I came across an interesting link, which was in fact a comment in reply to the release in 2014 of the ASRR (Forsyth) final report from a Jim McDowall -  https://www.infrastructure.gov.au/aviati...Dowell.pdf - that in hindsight is very prophetic in regards to the current situation with the introduction of Part 149 in a couple of weeks time: 

..Since 1998 CASA has been working on the Part 103/Part 149 arrangements. The last
consultation phase was in 2007. By any stretch, in any organisation, this is glacial pace and
this probably goes to the heart of the issue. There is little demand from the sports aviation
community, the sports aviation bodies fear the implications and this piece of regulation is well
down the priority list of CASA, even though it potentially affects 40% of the aircraft flying in
Australia.

As a consequence, there is little faith within the sports aviation community that Part 149 will
be adopted by and it SHOULD NOT BE for the following reasons.

Conflict of Interest

It is not possible for a sports aviation body to be both a regulator and an advocate. There are
many examples in society where these sorts of conflicts are recognised and avoided, for
example a solicitor acting for both sides in an action.

Most sports aviation bodies are set up as associations. Associations are set up for the benefit
of members and when a person joins an association the parties enter into a contract. It is a
fundamental tenet of law that contracts cannot be altered without the permission of all parties
to the contract. Consequently when the rights of a sports aviation body member are altered
without reference to the membership the contract is breached.

CASA seems not to recognise that these bodies are subject to legal responsibilities and
constraints beyond the various civil aviation laws. For example, CASA’s SPORT AVIATION
SELF-ADMINISTRATION HANDBOOK 2010 discusses the imposition of a regime of
corporate governance adopted from the various Australian Standards. These standards are
developed for use in companies and in general terms reflect the subtle but significant
difference between a company and an association; that is, a company exists for its own benefit
whereas an association exists for the benefit of its members. Consequently, statements in the
document such as (page 7):

Compliance management has a reason for its
existence: it demonstrates sound corporate
governance by the board in the management
of company risks, one of which is compliance .
Compliance management also adds value to the
organisation in terms of reputation and sustainability .

An association, as a sports aviation advocate, is representing the risks of its members whereas
the statement above seems to propose that the association is subject to the risk – clearly not
so. The association is merely a mechanism for aggregating the risk for the benefit of the
regulator (CASA)

Compulsion

It is ironic that a government that stands steadfast against compulsory unionism is prepared to
implement systems that require compulsory membership of an organisation in order to fly
aircraft that CASA does not want to regulate directly, quite often in situations that result in
perverse and draconian outcomes.

For example, a pilot with a PPL or ATPL who wants to fly a powered sailplane away from a
GFA club operation has to be a member of the GFA and be subservient to a well meaning, but
amateur system whose recent accident history would demonstrate it is dangerous to be a part
of (with regard to the number accidents involving 2 seat gliders with pilots under instruction).
In practice, a PPL holder is competent to fly a powered sailplane with a very minimum of
instruction, and in keeping with other aspects of these licences...

  Read it, absorb it and weep -   

To add another further irony Jim McDowall was one of only 5 individuals and/or associations that was prepared to have their response to the consultation process on the Part 149 MOS published: McDowall submission - CASA Part 149 MOS consultation.pdf

..I am a member of RAAus and have been a GFA member. I own a glider and have built and own a 95.10 ultralight. I have assisted in the construction or refurbishment of several aircraft. This submission may be published.

As a working document the Part 149 MOS is functionally useless as it lays down no standards for the content of the exposition that is required apart from some broad statements. This creates a potential for a highly variable, subjective approval process. This situation would leave CASA open to accusations of favouring the incumbent ASAO's over new entrants.

As no-one has written a Part 149 exposition for submission to CASA for approval, no-one has any idea of what content will meet with CASA's approval.

Australians expect that if you meet known standards for an activity you will be granted an approval for that activity.
This situation could be easily overcome by publication of a exposition template for Part 149.

It is noted that adoption of the MOS is dependent upon the continuation of the 95 series CAO's. Since the beginning of discussions on Part 149, Part 149 has always been predicated upon the adoption of Parts 103 and 105. The development of these parts has stalled.

Without knowing what Parts 103 and 105 will comprise, there is little point in proceeding with the implementation of Part 149 until such time as Parts 103 and 105 are developed to the point at which Parts 149, 103 and 105 can be introduced properly without a transition into the unknown...

  
Hmm...I think a couple of choccy frogs and a golden Tim Tam are due for that man McDowall...  

MTF? - Definitely!...P2