Commonwealth Numbered Regulations - Explanatory Statements

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CIVIL AVIATION AMENDMENT REGULATIONS 2002 (NO. 4) 2002 NO. 221

EXPLANATORY STATEMENT

Statutory Rules 2002 No. 221

Issued by the Authority of the Minister for Transport and Regional Services

Civil Aviation Act 1988

Civil Aviation Amendment Regulations 2002 (No. 4)

Section 98 of the Civil Aviation Act 1988 (the Act) provides that the Governor-General may make regulations for the purposes of the Act and in relation to the safety of air navigation.

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

The Regulations restore three powers in relation to approving changes to aircraft flight manuals (AFMs) which were inadvertently omitted from the Civil Aviation Regulations 1988 (CAR 1988) when those regulations were amended on 16 August 1999.

An AFM for an aircraft is a document which provides information and guidance to a pilot on the operation of the aircraft, for example, the limits of weight, speed, altitude, engine performance etc. under which the aircraft is considered airworthy. It is therefore a key document for the safe and proper operation of the aircraft. International practice is that the AFM for an aircraft type and model is issued by the aircraft manufacturer and is approved by the national airworthiness authority (NAA) with responsibility for safety oversight of that manufacturer.

The AFM for a particular aircraft can change over time, depending on such matters as the service history of the aircraft type and model, whether the aircraft has been modified, whether the aircraft has had specific equipment installed or removed, and whether the aircraft is being used in special or atypical operations. In each case, any change to the AFM must be approved by an NAA or a delegate of an NAA.

Prior to 16 August 1999, all changes to AFMs of Australian aircraft had to be approved by CASA or a person authorised by CASA for that purpose. This included changes which had already been approved by a foreign NAA. For example, if the US-based manufacturer of an aircraft type and model issued a revised AFM for that aircraft type and model, that revised AFM would have to be approved by the Federal Aviation Administration of the US, and for aircraft of that type and model registered in Australia, CASA would have to undertake a further approval process to enable operators, of the Australian aircraft to change their AFMs over to the revised one. This duplication of approval processes was considered unnecessary from a safety perspective and overly bureaucratic. Accordingly, the CAR 1988 were amended to provide that where a change to an AFM had already been approved by a foreign NAA, it did not also need to be approved by CASA.

However, in amending CAR 1988, some powers of CASA to approve changes to AFMs were inadvertently omitted. These powers are to approve a change to an aircraft's AM

       based on certain modifications to the aircraft carried out in Australia;

       for the purpose of ensuring the safety of air navigation; and

       for special or atypical operations, where the change is requested by the certificate of registration (CoR) holder for the aircraft.

The Regulations address this omission by re-inserting the powers into CAR 1988. A refusal by CASA to approve a change to an aircraft's AFM for special or atypical. operations is subject to review on the merits in the Administrative Appeals Tribunal.

The Regulations also include explanatory notes to clarify the two-stage process for changing an AFM. The first stage is an approval process - CASA or the relevant foreign NAA approves the change -and the second is an incorporation process - CASA, the relevant foreign NAA, or a third person such as the aircraft manufacturer or designer of a modification, instructs the aircraft CoR holder when and how to make the change. It is entirely possible that a change to an AFM might be approved, but it need not be incorporated into a particular aircraft's AFM unless a CoR holder chooses to have a modification undertaken or to undertake a special or atypical operation for which the change has been drafted. Such changes to AFMs are usually contained in "flight manual supplements". For example, if CoR holder of an aircraft wishes to modify the aircraft in a standard fashion, there will be a flight manual supplement already approved for that modification, but it need not be incorporated into the particular aircraft's AFM unless and until the modification is actually made to that aircraft. The instruction to make the change to the aircraft's AFM will be contained in the flight manual supplement itself - to the effect that "if you make this modification, then you must make the following changes to the AFM of the aircraft". The CAR 1988 acknowledge this two-step process by only making a change to an AFM mandatory if both the change has been approved and the CoR holder of the aircraft has been instructed to make the change. However, this process was not entirely clear from the wording of the existing CAR 1988, and as a result the opportunity has been taken in the Regulations to insert some explanatory notes to clarify the matter.

The Regulations are considered minor and machinery in nature and do not alter existing arrangements or have an adverse effect on business. The Office of Regulation Review has examined the amendment and concluded that a Regulatory Impact Statement was not required.

Details of the Regulations are set out in the Attachment

The Regulations commenced on gazettal.

ATTACHMENT

Civil Aviation Amendment Regulations 2002 (No. 4)

DETAILS OF THE AMENDING REGULATIONS

Regulation 1 - Name of Regulations

Regulation 1 sets out the name of the Regulations as the Civil Aviation Amendment Regulations 2002 (No. 4)

Regulation 2 - Commencement

Regulation 2 provides that the Regulations commenced on gazettal.

Regulation 3 - Amendment of Civil Aviation Regulations 1988

Regulation 3 provides that Schedule 1 amends the Civil Aviation Regulations 1988.

SCHEDULE 1 - Amendments

Item 1 - Paragraph 55 (3) (c)

Item 1 makes an editorial change to add a semicolon and the word 'and' to include an additional provision (d) described in Item 2 below.

Item 2 - After paragraph 55 (3) (c)

Item 2 inserts a new provision (d), which provides for CASA or an authorised person to approve an Aircraft Flight Manual (AFM) change related to a modification on an aircraft.

Item 3 - Subregulation 55 (4)

Item 3 re-formats the existing subregulation 55(4), and inserts a new provision (b), which provides for CASA or an authorised person to approve a change to an AFM for the purpose of ensuring the safety of air navigation.

Item 3 also introduces a new subregulation 55(4A) which, for an AFM change that has been approved under new regulation 55A, requires the registration holder to also comply with subregulations 55(5) and 55(6), as is required for all other AFM changes when instructed to make an AFM change.

Item 3 also adds an explanatory note at the end of regulation 55 to clarify the scope of AFM approval activity allowed to an authorised person who has approved the design of a modification under regulation 35. The authorised person may approve the AFM change only if the activity of approval of AFM changes under subregulation 55(3) is specifically mentioned in the person's instrument of appointment.

Item 3 also adds a second explanatory note at the end of regulation 55 to explain that, when an AFM change is in the form of an AFM supplement, the instruction to make a change can be included in the supplement. Approval of the change does not constitute the instruction to make the change, which is frequently contained in the text of the flight manual supplement itself.

Item 4 - After regulation 55

Item 4 inserts a new subregulation 55A(1) to permit a registration holder or representative to request CASA's approval for an AFM change for reasons other than those in subregulations 55(1), 55(2), 55(3) or 55(4).

Item 4 also inserts a new subregulation 55A(2) that gives CASA the permissive power to approve an AFM change requested under subregulation 55A(1).

Item 4 also inserts a new subregulation 55A(3) to ensure that, in deciding to approve an AFM change requested under subregulation 55A(1), CASA takes into account any relevant considerations relating to the interests of the safety of air navigation.

Item 4 also adds an explanatory note at the end of regulation 55A to explain that, when an AFM change is in the form of an AFM supplement, the instruction to make a change can be included in the supplement. Approval of the change does not constitute the instruction to make the change, which is frequently contained in the text of the flight manual supplement itself.

Item 5 - Subregulation 297A (1), definition of reviewable decisions, after paragraph (hc)

Item 5 inserts a new subparagraph (hd) that provides that a decision by CASA under subregulation 55A(2) not to approve a change to a flight manual is a reviewable decision.


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