Commonwealth Numbered Regulations - Explanatory Statements

[Index] [Search] [Download] [Related Items] [Help]


CIVIL AVIATION AND CIVIL AVIATION SAFETY AMENDMENT REGULATIONS 2009 (NO. 1) (SLI NO 64 OF 2009)

 

EXPLANATORY STATEMENT

 

Select Legislative Instrument 2009 No. 64

 

 

Issued by the authority of the Minister for Infrastructure, Transport, Regional Development and Local Government

 

Civil Aviation Act 1988

Civil Aviation and Civil Aviation Safety Amendment Regulations 2009 (No. 1)

 

Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides, in part, that the Governor-General may make regulations, not inconsistent with the Act, prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act. That subsection also provides that the Governor-General may make regulations in relation to the safety of air navigation, being regulations with respect to any other matters to which the Parliament has power to make laws.

 

Subsection 9 (1) of the Act specifies, in part, that the Civil Aviation Safety Authority (CASA) has the function of conducting the safety regulation of civil air operations in Australian territory by means that include developing and promulgating appropriate, clear and concise aviation safety standards and issuing certificates, licences, registrations and permits.

 

Part 39 of the Civil Aviation Safety Regulations 1998 (CASR) deals with the promulgation and compliance of airworthiness directives (ADs) issued by CASA to address unsafe conditions on aircraft and aeronautical product. These ADs are based on State of Design ADs issued by the National Airworthiness Authority (NAA) of the relevant foreign country, the manufacturer’s service bulletins, or foreign airworthiness legislation. The vast majority of ADs issued by CASA are based on ADs already issued by the relevant NAA of the State of Design.

 

CASR Part 39 also covers an approval mechanism for an exclusion or an alternative means of compliance (AMOC) against airworthiness directives. This mechanism enables an operator to submit an application to CASA to be excluded from the AD as a result of a modification or by using an alternative method. For CASA to approve an exclusion or AMOC, the application must provide an acceptable safety justification. As a result, the vast majority of AMOC applications received and approved by CASA are based on AMOCs already approved by the NAA of the State of Design.

 

Civil Aviation Safety Regulations 1998 (CASR) Part 39 became effective 1 January 2000 as part of CASA’s Regulatory Reform Program, and replaced the provisions in the Civil Aviation Regulations 1988 (CAR). In general CASR Part 39 harmonised with the US Federal Aviation Regulation (FAR) Part 39.

 

In January 2003, CASR Part 39 was amended to address issues that were raised as a result of the Federal Aviation Administration of the USA issuing an amendment to their Part 39. During that consultation process, many respondents commented that CASA should stop the practice of re-issuing State of Design ADs. This matter was also raised with the Standards Consultative Committee (SCC) and in August 2003 the SCC recommended that CASA progress with the proposal to automatically mandate State of Design ADs

 

Currently, CASA issues approximately 1000 ADs every year. The vast majority of these ADs mirror the compliance requirements of State of Design ADs. This work practice does not add any safety value, is inefficient and causes delays with the promulgation of safety critical issues.

 

The purpose of the Regulations is to automatically mandate ADs issued by the NAA of the State of Design, and to automatically accept AMOCs approved by the NAA of the State of Design.

 

The Regulations amend CASR Part 39 to:

·        require registered operators of new aircraft models entering the Australian Civil Aircraft Register after 1 October 2009 to comply with all ADs issued by the NAA of the State of Design;

·        require registered operators of aircraft already on the Australian Civil Aviation Register prior to 1 October 2009 to comply with ADs issued by the NAA of the State of Design after 1 October 2009;

·        automatically accept AMOCs approved by the NAA of the State of Design; and

·        provide CASA with the power to exempt an aircraft or aeronautical product from an AD.

 

The Regulations also amend the Dictionary in CASR to:

·        extend the meaning of an AD to include ADs issued by the NAA of the State of Design;

·        omit the definition of aeronautical product to ensure consistency with the definition in the Civil Aviation Act 1988; and

·        include a definition for State of Design.

 

The Regulations also make minor changes to CASR Part 21 and CASR Part 201 consequential to the amendments to CASR Part 39.

 

The Regulations also remove the definition of ‘airworthiness directive’ from the CAR consequential to the changes to CASR Part 39.

 

Details of the Regulations are set out in the Attachment A.

 

Except for the amendment to correct a definition which commence on the day after registration, the Regulations commence on 1 October 2009.

 

The Act does not specify conditions that needed to be satisfied before the power to make the Regulations was exercised.

 

The Office of Best Practice Regulation (OBPR) assessed that the Regulations have a direct affect on business and that a Regulation Impact Statement (RIS) was required. Accordingly, CASA has prepared RIS ORR ID: 7008 which accompanies this Explanatory Statement at Attachment B. The OBPR has advised that the RIS satisfies the Australian Government RIS requirements and that the analysis in the RIS is adequate and commensurate with the impacts.

 

Subsection 6 (a) of the Legislative Instruments Act 2003 (LIA) provides that an instrument described as a regulation by the enabling legislation is a legislative instrument. The Regulations are therefore a legislative instrument for the purposes of the LIA.

 

 

 

 


ATTACHMENT A

 

 

Civil Aviation and Civil Aviation Safety Amendment Regulations 2009 (No. 1)



Details of the Amending Regulations

 

Regulation 1 – Name of Regulations

Regulation 1 names the amending regulations as the Civil Aviation and Civil Aviation Safety Amendment Regulations 2009 (No. 1).

Regulation 2 – Commencement

Regulation 2 provides that the regulations 1 to 3 and Schedule 1 commenced on the day after the amending regulations were registered in the Federal Register of Legislative Instruments, and regulations 4 and 5 and Schedules 2 and 3 commence on 1 October 2009.

Regulation 3 – Amendment of Civil Aviation Safety Regulations 1998

Regulation 3 provides that Schedule 1 amends the Civil Aviation Safety Regulations 1998.

Regulation 4 – Amendment of Civil Aviation Safety Regulations 1998

Regulation 4 provides that Schedule 2 amends the Civil Aviation Safety Regulations 1998.

Regulation 5 – Amendment of Civil Aviation Regulations 1988

Regulation 5 provides that Schedule 3 amend the Civil Aviation Regulations 1998.

 

Schedule 1 Amendment of Civil Aviation Safety Regulations 1998 commencing on the day after registration

 

Items 1 - Dictionary, Part 1, definition of aeronautical product

The definition of ‘aeronautical product’ was inconsistent with the definition in the Civil Aviation Act 1988. This item amends the Dictionary, Part 1 by omitting the definition of ‘aeronautical product’. The correct definition for an ‘aeronautical product’ is currently in the Civil Aviation Act 1988.


 

Schedule 2 Amendments of Civil Aviation Safety Regulations 1998 commencing on 1 October 2009

 

Item 1 – Paragraph 21.200 (1A) (a)

Item 1 amends paragraph 21.200 (1A) (a) to clarify what conditions constitute ‘covered by an airworthiness directive’ (AD) within the meaning of regulation 39.002 for CASA or an authorised person not to issue a special flight permit.

Item 2 – Definitions

Item 2 inserts new definitions into CASR.

 

The definition of ‘airworthiness directives’ applies to an Australian airworthiness directive issued by CASA or a foreign State of Design AD issued by the National Airworthiness Authority (NAA) of the State of Design of the aircraft or aeronautical product.

 

The definition of ‘Australian airworthiness directive’ applies to ADs issued by CASA.

 

The definition of ‘foreign State of Design airworthiness directives’ applies to ADs issued by the National Airworthiness Authority (NAA) of the State of Design of the aircraft or aeronautical product.

Item 3 - Regulation 39.001

Item 3 amends the heading of regulation 39.001 to indicate that it includes only CASA issued Australian ADs.

Item 4 - Regulation 39.001

Item 4 amends subregulation 39.001 (1) to empower CASA to issue Australian ADs under subsection 98 (5A) of the Civil Aviation Act 1988 as a legislative instrument. The inclusion of substantive regulations which state whether or not an instrument is legislative removes any uncertainty about the character of an instrument. This differs from foreign State of Design ADs as they are not made in the exercise of a power delegated by Parliament and are therefore not legislative instruments.

Item 5 - Regulation 39.001

Item 5 omits subregulations 39.001 (3) to (5) including the note as these subregulations are not necessary.

 

Subregulations 30.001 (3) and (4) are not required as section 14 of the Legislative Instruments Act 2003 provides what an instrument (AD) can incorporate by reference.

 

Subregulation 39.001 (5) is longer required, as subregulation 39.001 (1) now references subsection 98 (5A) of the Act ensuring that Australian ADs are a legislative instrument.

 

The note indicating reference to the definition of ‘aeronautical product’ was removed because the amendment to the Dictionary by item 1 of Schedule 1 makes the note obsolete.

Item 6 - Regulation 39.002 heading

Regulation 39.002 refers to aircraft and aeronautical product covered by AD, whereas the original heading only referred to aircraft. This item corrects the heading by including both aircraft and aeronautical product in the heading.

Item 7 - Regulation 39.002

This item amends regulation 39.002 by omitting reference to regulation 39.004 and 39.005. These regulations are replaced with two new regulations. The reference to exclusion of the operation of an AD if an unsafe condition no longer exists due to a repair or modification is now contained in paragraphs 39.004 (2) (b) or (3) (b).

Item 8 - Regulation 39.002 (b)

This item amends paragraph 39.002 (b) by removing the acronym ‘AD’ and replaces it with ‘airworthiness directive’ and inserts new paragraphs 39.002 (c) and 39.002 (d).

 

Regulation 39.002 (c) gives the power to exempt a particular or kind of aircraft or aeronautical product from the AD if an alternative means of compliance against the AD has been complied with and this has been approved by CASA.

 

Regulation 39.002 (d) gives the power to exempt a particular or kind aircraft or aeronautical product from the AD if an alternative means of compliance against the AD has been complied with and this has been approved by the NAA that issued the AD.

Item 9 - Regulation 39.002 note

This item removes the note removes the note indicating reference to the definition of ‘AD’, and ‘aeronautical product’. This has been removed because amendments to the Dictionary make the note obsolete.

Item 10 – New Regulation 39.002A

This regulation inserts a new regulation applying to an aircraft model entering the Australian Civil Aircraft Register on or after 1 October 2009. For an aircraft model entering the Australian Civil Aircraft Register, if the State of Design AD has been complied with and the requirements are equivalent to the existing Australian AD, then the Australian AD is taken to be complied with.

Item 11 - Regulation 39.003 heading

This item corrects the heading by removing ‘AD etc’ and replaces it with ‘airworthiness directive’.

Item 12 – Subregulation 39.003(1) note

This item removes the note indicating reference to the definition of ‘AD’, ‘aeronautical product’ and ‘Australian aircraft’. This has been removed because amendments to the Dictionary and subregulation 39.003 (1) make the note obsolete.

Item 13 – Subregulation 39.003 (2) note

This item removes the note indicating reference to the definition of ‘AD’, ‘aeronautical product’ and ‘Australian aircraft’. This has been removed because amendments to the Dictionary and subregulation 39.003 (2) make the note obsolete.

Item 14 – Regulation 39.004 and 39.005

This item replaces regulation 39.004 and 39.005 with two new regulations.

 

Subregulation 39.004 (1) enables a person to submit an application to CASA for an approval for an alternative means of compliance against an AD or an exclusion against an AD. This provides the option for a person to comply with an AD using an alternative method provided an acceptable level of safety can be justified.

 

Subregulations 39.004 (2) and (3) empowers CASA to approve a means of compliance with an AD for a particular or kind of aircraft or aeronautical product or exclude a particular or kind of aircraft or aeronautical product from an AD. These subregulations enable CASA to provide an alternative means of compliance to the AD for an aircraft kind, if CASA considers a more appropriate method of compliance is warranted for Australian conditions.

 

Subregulation 39.004 (4) requires CASA when making a decision about a means of compliance or an exclusion against an AD, to take into account the reasons given by the applicant, and to preserve as paramount an acceptable level of safety.

 

Subregulation 39.004 (5) allows CASA to exclude an aircraft or aeronautical product from an AD only if an unsafe condition does not exist or develop because of a modification or repair.

 

Subregulation 39.004 (6) allows CASA to include conditions in the approval or exclusion.

 

Subregulation 39.004 (7) requires the operator to comply with each condition of the approval or exclusion

 

Regulation 39.005 requires a document or thing to be sent to CASA, if the State of Design AD requires it to be sent to the State of Design NAA.

Item 15 - Regulation 39.006 heading

This item amends the heading by removing ‘Request for review of operation of AD’ and replaces it with ‘Request for review of operation of Australian airworthiness directive’.

Item 16 - Regulation 39.006 note

This item removes the note indicating reference to the definition of ‘AD’ and ‘aeronautical product’. This has been removed because amendments to the Dictionary make the note obsolete.

Item 17 - Subregulation 39.007 (4) note

This item removes the note indicating reference to the definition of ‘AD’ and ‘aeronautical product’. This has been removed because amendments to the Dictionary make the note obsolete.

Item 18 – Paragraph 201.004 (d)

This item amends regulation 201.004 so that an application may be made to the Administrative Appeals Tribunal if CASA refuses to grant an alternative means of compliance or an exclusion against an airworthiness directive or refuse to grant a review of an AD.

Item 19 – Dictionary, Part 1

This item amends the Dictionary, Part 1 by omitting the definition of ‘AD’. This has been omitted because the acronym no longer appears in the regulations.

Item 20 – Dictionary, Part 1

This item amends the Dictionary, Part 1 by substituting a new definition for ‘airworthiness directive’. This would refer to the definition of an AD in regulation 39.001A.

Item 21 – Dictionary, Part 1

This item amends the Dictionary, Part 1 by omitting the definition of ‘CAR airworthiness directive’. This definition became obsolete because all existing ADs issued by CASA have been issued under CASR Part 39.

Item 22 – Dictionary, Part 1

This item amends the Dictionary, Part 1 by introducing the meaning for the term ‘State of Design’ as the meaning given by Annex 8 to the Chicago Convention. This term has been introduced to clarify the meaning of a State of Deign AD.

Item 23 – Further amendments

This item omits the acronym ‘AD’ in various regulations and replaces, where appropriate, with either airworthiness directive or Australian airworthiness directive.

 

Schedule 3 Amendment of Civil Aviation Regulations 1988 commencing on 1 October 2009

 

Item 1 – Subregulation 2 (1)

This item omits the definition of ‘airworthiness directive’. The definition in subregulation 2 (1) was incorrect and obsolete. The correct definition will now be in the CASR Part 1 Dictionary.


[Index] [Related Items] [Search] [Download] [Help]