[Peetwo]

CM on the clusterduck that is the 30+ year regulatory reform program - 

Via the UP: 

A new concept: air transport operations that are not air transport operations

For a range of reasons, I now have little choice but occasionally to try to make sense of the complex, convoluted Heath Robinson contraption that CASA continues to devise, while the regulatory ‘reform’ program drifts on forever. Up until recently, I’ve been lucky enough to be generally able to avoid having to lift the lid on the mess. (A while ago I had no choice but to look at Part 175 – a world-leading example of bureaucratic overreach which treats every aerodrome and HLS as if its YSSY, EGLL KLAX or KJFK – and CASR Part 138 and its MOS – strong contenders as the worst in a field of regulatory dross.)

Sadly – but unsurprisingly, given my reasons for ceasing decades ago to listen to the lies told by CASA about regulatory ‘reform’ – the mess disguises some silly, sly and incomprehensible outcomes. You can look at the detail of what I’ve written to CASA, copied in the next post, if you want the tedious detail of the latest discovery I’ve made. In case that might result in you losing the will to live, here’s the summary.

The Summary

Although your flight may not be an air transport operation, it could still be an Australian air transport operation.

Down the rabbit hole to Wonderland…

There’s a definition of ‘air transport operation’ in the CASR Dictionary. You’d think that if your operation did not fall within that definition, your operation could never be any kind of ‘air transport operation’ for the purposes of CASR. That would be a logical and reasonable conclusion. But you’d be wrong.

CASR 119.010(1)(e) purports to give CASA power to prescribe, in the Part 119 MOS, any operation of any aeroplane or rotorcraft, with the outcome being that the operation becomes an ‘Australian air transport operation’ even if the operation is not an ‘air transport operation’ as defined in the CASR Dictionary (and, get this: even if the aircraft or its operator or its location have no connection with Australia).

For example, flights that are ‘cost-sharing’ flights as defined in the CASR Dictionary are excluded from the definition of ‘passenger transport operation’ in the CASR Dictionary and, in turn, outside the scope of the definition of ‘air transport operation’ in the CASR Dictionary. So you’d think that your ‘cost-sharing’ flight couldn’t possibly be an ‘Australian air transport operation’ for the purposes of the regulations, thus requiring at least an AOC. But…

If there’s a sentence buried in the Part 119 MOS prescribing ‘cost-sharing’ flights as operations for the purposes of CASR 119.010(1)(e), the result is that ‘cost-sharing’ flights become an ‘Australian air transport operation’ even though they are not an ‘air transport operation’. Do not try to make sense of that. It will break your brain.

As a private pilot you would of course think to check the content of the Part 119 MOS to find out whether Part 119 applies to your flight, wouldn’t you? You of course understand that even though the prescription of operations in a MOS made under a Part of CASR, to which operations that Part will purportedly apply as the consequence of that prescription, is neither a standard nor a technical requirement, it would still be prudent for you to look in a MOS to find out whether a Part of CASR applies to your flight.

Why this stuff happens

This is a typical product of complicators who simply cannot conceive of regulatory regimes that define the goal posts, the size of the playing field and rules of the game and leave it at that, so that those who want to play the game have certainty for the future and can plan and practise accordingly. These complicators cannot resist including mechanisms to allow them to fiddle with the goal posts, the size of the playing field and the rules of the game on the basis of their strongly-held opinions from time to time, via the easiest way practicable. (Some of these mechanisms also provide scope for opaque favouritism, conferral of commercial advantages and increased risks to safety – the mechanism for approval of what are given the Orwellian description ‘minor variations’ in the fatigue rules is an example. Of course everyone, including the travelling public, knows the details of all approvals CASA has granted for ‘minor variations’ from the fatigue rules, don’t we?)

This is what happens when a regulator is left to run the process which produces the rules which determine so much of the detail of the regulator’s own role and powers in the rules. CASA: QED.

These mechanisms are almost invariably the last item on a list of provisions which, but for that item, provides clarity and certainty on the face of the rules. I’ve been there: Some ‘technical experts’ look at a draft rule, which provides objective certainty on its face, and say they should still be able to get around all of that and make up what they want when they feel like fiddling with it. After all: they have been put in a position of authority and, therefore, their strongly-held opinions must be better than everyone else’s. (CASA Avmed are ‘thought leaders’ on this attitude.)

Have a look at CASR 119.010(1) to see what I mean. But for para (e), everyone would be able to tell, on the face of CASR 119.010(1) itself, that if your operation is not an ‘air transport operation’ in the first place, it can never be an ‘Australian air transport operation’. And that makes intuitive sense. Rules that make intuitive sense on their face are much, much better than ones that don’t.

But because of para (e), an ‘Australian air transport operation’ can include any aeroplane or rotorcraft operation that CASA plucks out of its nether regions and plonks into the Part 119 MOS when CASA feels like it. That which you thought was black can actually be white.

This is not safety through simplicity. This is confusion through convoluted complexity.

There’ll be a bunch of dissembling sophistry around consultation and potential disallowance of proposed MOS provisions that do this, but we know how that works in reality and the: “These are made by the Governor-General, not CASA” smoke and mirrors trick does not work for a MOS. The provision goes in – it’s about the safety of air navigation, dontcha know – and the damage is done unless there’s sufficient energy to lobby then political nous and courage to get the provision disallowed. If there is really a burning safety imperative for some operation to be covered by Part 119, then amend Part 119 or the CASR Dictionary definitions so that it is clear, on the face of CASR, that the operations are covered. You’d think, though, an amendment should be unnecessary after a couple of decades developing this regulatory masterpiece.

MTF...P2