Commonwealth Numbered Regulations - Explanatory Statements

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CIVIL AVIATION AMENDMENT REGULATIONS 2003 (NO. 4) 2003 NO. 189

EXPLANATORY STATEMENT

Statutory Rules 2003 No. 189

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

Civil Aviation Act 1988

Civil Aviation Amendment Regulations 2003 (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 the safety regulation of civil air operations by means that include developing and promulgating appropriate, clear and concise aviation safety standards and issuing certificates, licences, registrations and permits.

The Regulations amend the Civil Aviation Safety Regulations (CASR) by inserting a new Part 173, entitled 'Instrument Flight Procedure Design', into those regulations. The Regulations also make consequential amendments to the Civil Aviation Regulations 1988 to reflect the new Part 173.

CASR Part 173 has been developed as part of CASA's Regulatory Review Program and will provide a regulatory regime that covers the requirements for the certification of designers of instrument flight procedures and the qualifications and experience of persons engaged in instrument flight procedures design.

Instrument flight procedures are to be followed by aircraft operating under the Instrument Flight Rules permitting safe flight in poor weather and at night and are essential for safe air navigation.

CASR Part 173 will also specify the procedures to be used for the design, approval and publication of instrument flight procedures including the maintenance of data and archiving of records; the procedures for the administration by CASA of instrument flight procedure design including the granting, variation and cancellation of certificates and authorisations; and the flight validation (checking) of procedures.

Prior to the establishment of CASA, the former Civil Aviation Authority (CAA) carried out the design of instrument flight procedures. Following the creation of CASA and Airservices Australia a decision was made to transfer the responsibility for instrument flight procedure design from CASA to Airservices Australia in 1997. CASA continues to be the responsible authority, but the actual design work is carried out by Airservices Australia as a delegate of CASA. One private provider, IAC GPS Pty Ltd has also been issued with a delegation to design Global Positioning System (GPS) approaches.

CASA, as the safety regulator, is the responsible body for determining the standards for the design of instrument flight procedures, but CASA does not consider its role to be that of a service provider such as carrying out the actual work of designing instrument flight procedures.

CASR Part 173 will enable CASA to fulfil it safety oversight of this essential activity and permit certified service providers within Airservices Australia and the aviation industry generally to carry out design work in accordance with standards, which assure the appropriate level of safety.

The Regulations call up a Manual of Standards (MOS), which contains the technical specifications and standards relating to the:

       * requirements for the certification or authorisation of designers of instrument flight procedures,

       * qualifications and experience of persons engaged in instrument flight procedures design,

       * standards to be applied to the design, checking and publication of instrument flight procedures, including the maintenance of data and archiving of records,

       * procedures for the administration by CASA of instrument flight procedure design including the granting, variation, refusal, suspension and cancellation of certificates, and

       * procedures for flight validation of procedures.

The MOS has been developed in conjunction with the Regulations and has been subject to full consultation with affected stakeholders.

A number of offences in the Regulations are proposed to be strict liability offences. Those offences carry a penalty of no more than 50 penalty units and the physical elements of those offences do not have any express fault elements.

A Regulation Impact Statement, CASA #0203, has been prepared and approved by the Office of Regulation Review (ORR).

Details of the Regulations are set out in the Attachment.

The Regulations commence on 1 October 2003.

ATTACHMENT

Civil Aviation Amendment Regulations 2003 (No. 4)

DETAILS OF THE AMENDING REGULATIONS

Regulation 1 - Name of Regulations

Regulation 1 names the amending regulations as the Civil Aviation Amendment Regulations 2003 (No. 4)

Regulation 2 - Commencement

Regulation 2 provides that the Regulations will commence on 1 October 2003.

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 Regulations 1988

Regulation 4 provides that Schedule 2 amends the Civil Aviation Regulations 1988.

Schedule 1 Amendments of Civil Aviation Safety Regulations 1998

Item 1 - Part 173

Item 1 inserts the new Part 173, entitled Instrument flight procedure design.

Part 173 Instrument flight procedure design

Subpart 173.A General

New regulation 173.000 - Make-up of this Part

This regulation inserts the table of contents for Part 173.

New regulation 173.005 - Applicability

This regulation explains that Part 173 applies to persons who are, or want to become, certified designers or authorised designers. A certificate or authorisation will be required for persons who design terminal instrument flight procedures, which include instrument approach and departure procedures applicable to the critical phases of flight during approach to land and immediately after take-off. In addition this regulation applies design standards to all instrument flight procedures, including those for which a procedure design certificate or authorisation is not required.

New regulation 173.010 - Definitions for this Part

This regulation introduces a number of new definitions for this Part.

New regulation 173.015 - What is a certified designer

This regulation defines a certified designer as a person who is the holder of a procedure design certificate.

New regulation 173.020 - What is a procedure design certificate

This regulation provides for CASA to grant a procedure design certificate permitting a person to carry on design work on a terminal instrument flight procedure of a type covered by the certificate.

New regulation 173.025 - What is an authorised designer

This regulation defines an authorised designer as a person who is the holder of a procedure design authorisation.

New regulation 173.030 - What is a procedure design authorisation

This regulation provides for CASA to grant a procedure design authorisation permitting a person to carry on less critical design work. A procedure design authorisation (subject to any conditions set out on the certificate) will apply to terminal instrument flight procedures used by Australian aircraft operating under the Instrument Flight Rules (IFR) at or in the vicinity of an aerodrome in a foreign country and helicopter approaches to off-shore oil and gas installations.

New regulation 173.035 - Designing terminal instrument flight procedures requires procedures design certificate etc.

This regulation provides that persons cannot design, review or amend terminal instrument flight procedures for foreign and Australian aircraft operating under the IFR at or in the vicinity of Australian territory, foreign country or an off-shore installation unless the person is authorised to do so, or is an employee of a person authorised to do so. A 50 unit penalty applies in each case.

Subregulation (4) provides for CASA to perform the function of a certified or authorised designer in the event no certified or authorised designer is available, and to enable CASA to determine a procedure for a special purpose such as the development of new procedures or the introduction of new navigation systems.

New regulation 173.040 - Designing instrument flight procedures other than terminal instrument flight procedures

In addition to terminal instrument flight procedures some instrument flight procedures of a routine nature are currently designed by pilots or air traffic controllers. This regulation provides that a person who designs an instrument flight procedure that is not a terminal flight procedure, must design the procedure in accordance with the Manual of Standards. A 10 unit penalty applies if not complied with and is an offence of strict liability.

Strict liability has been applied to this offence to be consistent with other CASA regulations where the offence is of a nature such as to endanger the safety of flight.

Subpart 173.B Certified designers

Division 173.B.1 Certification as certified designer

New regulation 173.045 - Applications for procedure design certificates

This regulation specifies the application process to CASA to obtain a procedure design certificate.

New regulation 173.050 - Criteria for grant of procedure design certificates

This regulation requires that an applicant for a procedure design certificate must be able to comply with the requirements of this Part in order to be granted a certificate.

New regulation 173.055 - Procedure design certificate

This regulation provides for CASA to identify on a procedure design certificate particular details applying to the certificate. A certificate may apply to only certain types of procedures and may have conditions applied to the certificate.

New regulation 173.060 - Procedure design certificate subject to conditions

This regulation provides that a certified designer must comply with any conditions of the procedure design certificate.

New regulation 173.065 - How long procedure design certificate remains in force

This regulation provides for a certificate to remain in force unless cancelled or suspended.

New regulation 173.070 - Variation of procedure design certificates

This regulation specifies the application process to vary a procedure design certificate and identifies how the effective date of the varied certificate is determined.

Division 173.B.2 Requirements to be complied with by certified designers

New regulation 173.075 - Certified designer to maintain operations manual

This regulation provides that the certified designer must maintain a current operations manual, which is to be made available to relevant staff and CASA.

New regulation 173.080 - Compliance with operations manual

This regulation provides that the certified designer, in carrying on design work authorised under the procedure design certificate comply with the operations manual.

New regulation 173.085 - Standards for design of terminal instrument flight procedures etc.

This regulation specifies that a certified designer designing terminal instrument flight procedures must design in accordance with the International Civil Aviation Organization Document - ICAO Doc 8168 (PANS-OPS) and the Manual of Standards. This is a continuation of current practice.

New regulation 173.090 - Verification of terminal instrument flight procedures

This regulation provides that certified designers must establish procedures to verify any terminal instrument flight procedures that are designed. This includes an independent check of the design by two qualified designers.

New regulation 173.095 - Validation of terminal instrument flight procedures

This regulation provides that a certified designer must ensure that a CASA pilot conducts a validation flight check for each terminal instrument flight procedure design.

New regulation 173.100 - Publication of terminal instrument flight procedures

This regulation provides that all terminal instrument flight procedures that are designed for use in the public domain are published in the Aeronautical Information Publication (AIP) by the Aeronautical Information Service (AIS).

Certain procedures (associated with specialised helicopter operations) are exempted from publication but any procedures not published in AIP must be given to CASA in order that CASA can issue procedures to qualified operators and maintain a register of procedures that are not in the pubic domain.

New regulation 173.105 - Radio navigation aids

This regulation provides that any terminal instrument flight procedure designed does not require the use of a ground-based radio-navigation aid other than one operated and maintained by a Part 171 (Aeronautical telecommunications organisations) provider. This rule will ensure that only navigation aids installed and maintained to appropriate standards are used.

New regulation 173.110 - Maintenance of terminal instrument flight procedures

This regulation provides that the certified designer is responsible for the maintenance of any terminal instrument flight procedures designed under their certificate. This rule requires that each designer continues to be responsible for a design, and ensures that procedures are kept up-to-date.

New regulation 173.115 - Certified designer to provide facilities etc.

This regulation provides that the certified designer must provide and maintain adequate facilities, equipment, processes and procedures for carrying on design work, and specifies the certified designers obligations for the update of aeronautical database to maintain its accuracy and integrity.

New regulation 173.120 - Certified designer to have appropriate organisation

This regulation provides that a certified designer must maintain an appropriate organisation with a sound and effective management structure to enable the designer to carry on the design work authorised by the certificate.

New regulation 173.125 - Certified designer to have sufficient personnel

This regulation provides that a certified designer must employ a sufficient number of appropriately trained and qualified personnel to carry on the design work authorised by the certificate.

New regulation 173.130 - Supervisory personnel

This regulation requires personnel in supervisory positions in the design organisation to be appropriately trained and qualified.

New regulation 173.135 - Certified designer to appoint chief designer

This regulation provides that a certified designer must appoint a chief designer to the organisation so that the design work authorised by the certificate can be carried out. The regulation requires the chief designer, or a person appointed to act as chief designer during periods of absence, to be approved by CASA. The Chief Designer is the person within each organisation responsible for the conduct of design work in accordance with this regulation.

New regulation 173.140 - Certified designer to provide training and checking program

This regulation provides that a certified designer must provide a training and checking program to ensure all employees maintain their competence for the duties being performed.

New regulation 173.145 - Certified designer to have safety management system

This regulation provides that a certified designer must establish and maintain a safety management system that includes the policies, procedures and practices necessary for managing design work authorised by the certificate.

New regulation 173.150 - Certified designer to maintain reference materials

This regulation provides that the certified designer must possess and maintain relevant reference materials specified in the Manual of Standards and make those reference materials available to employees involved in design work.

New regulation 173.155 - Certified designer to keep documents and records

This regulation provides obligations on the certified designer to document and record designs and to have the appropriate records management practices in place so that CASA may audit from time to time.

New regulation 173.160 - Certified designer to have document and record control system

This regulation provides that the certified designer must establish and maintain a system for controlling documents and records relating to the design of terminal instrument flight procedures, including the policies and procedures for making, amending, preserving and disposing of those documents and records.

Division 173.B.3 Chief designer

New regulation 173.165 - Approval for appointment of chief designer

This regulation provides that a certified designer must not appoint a chief designer unless the appointment is approved by CASA.

New regulation 173.170 - Approval for appointment to act as chief designer

This regulation provides that CASA may approve the appointment by the certified designer of a person to act as chief designer for the certified designer while the chief designer is temporarily absent from duty.

New regulation 173.175 - Appointment likely to have adverse effect on air safety

This regulation provides that CASA is not required to approve the appointment of a person to act as chief designer if the approval would be likely to have an adverse affect on the safety of air navigation and specifies the criteria CASA would use to make that determination.

New regulation 173.180 - Chief designer's functions and duties

This regulation specifies the chief designer's functions and duties for carrying on the responsibilities of a certified design organisation.

New regulation 173.185 - Duration of approval

This regulation specifies the duration of approval period to be appointed as a chief designer, or to act as a chief designer of a certified design organisation.

New regulation 173.190 - Withdrawal or suspension of approval of appointment

This regulation provides that CASA must follow a process to withdraw or suspend the approval of a person's appointment or temporary appointment as a chief designer.

Division 173.B.4 Miscellaneous

New regulation 173.195 - Advice on organisational changes

This regulation provides that the certified designer must inform CASA in writing, within 7 days, if there are any changes of substance to the organisational structure of the design organisation.

New regulation 173.200 - Discontinuing design work on terminal instrument flight procedures of a particular type

This regulation provides that if a certified designer ceases to carry on design work on terminal instrument flight procedures of a particular type, CASA must be advised in writing, and the AIS if the design is published in the AIP, within 7 days. A designer's responsibility extends to the maintenance of procedures designed. This provision ensures that the AIS and CASA are informed when a designer ceases to be responsible so that appropriate arrangements may be made to ensure the continued safety of any procedures affected.

New regulation 173.205 - Notifying the AIS of variation to a procedure design certificate

This regulation provides that if a certified designer's design certificate is varied to exclude a particular type of terminal instrument flight procedure and the designer has given any procedures of that type to the AIS for publication in the AIP, the designer must give notice of the variation within 7 days after the day when the variation takes effect. This rule ensures that the AIS is kept informed of any changes to a designer's authority.

New regulation 173.210 - Discontinuing maintenance of particular terminal instrument flight procedures

This regulation provides that if a certified designer ceases to be responsible for the maintenance of a procedure, the designer must give CASA written notice to that effect and if the procedure is published in the AIP, to the AIS, within 7 days after ceasing to have that responsibility. This rule ensures that the AIS and CASA are informed and that arrangements can be made to ensure that procedures are maintained in the event that a certified designer ceases to be responsible.

New regulation 173.215 - Transfer of maintenance responsibility

This regulation provides that a certified designer can transfer the maintenance responsibility for a design to another certified designer, if that designer is authorised to design terminal instrument flight procedures of the same type as the procedure concerned; and specifies the transfer procedure to be followed in that instance.

Subpart 173.C Authorised designers

Division 173.C.1 Authorisation as authorised designer

New regulation 173.220 - Applications for procedure design authorisations

This regulation specifies that the application of a procedure design authorisation to CASA must be made in the approved form.

New regulation 173.225 - Criteria for grant of procedure design authorisations

This regulation provides that a person who has applied for the grant of a procedure design authorisation must, if the authorisation is granted, be able to comply with the applicable regulations and standards.

New regulation 173.230 - Notice of procedure design authorisation

This regulation provides that if CASA grants a procedure design authorisation, it must notify the applicant in writing of the description of activity authorised; any conditions or any other information which may be relevant and the commencement date of the authorisation.

New regulation 173.235 - Procedure design authorisations subject to conditions

This regulation requires an authorised designer to comply with any conditions applied by CASA on the granting of a procedure design authorisation.

New regulation 173.240 - How long procedure design authorisation remains in force

This regulation specifies when a procedure design authorisation is in force.

New regulation 173.245 - Variation of procedure design authorisation

This regulation specifies the application process to vary a procedure design authorisation and identifies how the effective date of the varied authorisation is determined.

Division 173.C.2 Requirements to be complied with by authorised designers

New regulation 173.250 - Operations manual

This regulation provides that the authorised designer must maintain a current operations manual, which is to be made available to relevant staff and CASA.

New regulation 173.255 - Compliance with operations manual

This regulation provides that the authorised designer, in carrying on design work authorised under the procedure design authorisation comply with the operations manual.

New regulation 173.260 - Standards for the design of terminal instrument flight procedures etc.

This regulation specifies that an authorised designer designing terminal instrument flight procedures must design in accordance with ICAO Doc 8168 (PANS-OPS) and the Manual of Standards. This is a continuation of current practice.

New regulation 173.265 - Off-shore installations

This regulation applies to the design by an authorised designer of procedures associated with off-shore oil and gas installations. The regulation requires the authorised designer to ensure that a copy of the design is given to CASA in order that CASA can issue procedures to qualified operators and maintain a register of such procedures. The regulation also requires that any radionavigation aids that are to be used in such a procedure meet appropriate standards.

New regulation 173.270 - Maintenance of terminal instrument flight procedures

This regulation provides that the authorised designer is responsible for the maintenance of any terminal instrument flight procedures designed under their authorisation. The regulation sets out conditions under which an authorised designer ceases to be responsible for maintenance.

New regulation 173.275 - Authorised designer to have sufficient personnel

This regulation provides that a authorised designer must employ a sufficient number of appropriately trained and qualified personnel to carry on the design work authorised by the authorisation.

New regulation 173.280 - Authorised designer to maintain reference materials

This regulation provides that the authorised designer must possess and maintain relevant reference materials specified in the Manual of Standards and make those reference materials available to employees involved in design work.

New regulation 173.285 - Authorised designer to keep documents and records

This regulation provides obligations on the authorised designer to document and record designs and to have the appropriate records management practices in place so that CASA may audit from time to time.

New regulation 173.290 - Authorised designer to have document and record control system

This regulation provides that the authorised designer must establish and maintain a system for controlling documents and records relating to the design of terminal instrument flight procedures, including the policies and procedures for making, amending, preserving and disposing of those documents and records.

Division 173.C.3 Miscellaneous

New regulation 173.295 - Discontinuing design work on terminal instrument flight of a particular type

This regulation provides that if an authorised designer ceases to carry on design work on terminal instrument flight procedures of a particular type, CASA must be advised in writing, and the AIS if the design is published in the AIP, within 7 days. This rule ensures that CASA and the AIS are informed in order that arrangements may be made for the continued maintenance of procedures.

New regulation 173.300 - Discontinuing maintenance of terminal instrument flight procedures

This regulation provides that if an authorised designer ceases to be responsible for the maintenance of a procedure, the designer must give CASA written notice to that effect and if the procedure is published in the AIP, to the AIS, within 7 days after ceasing to have that responsibility. This rule ensures that CASA and the AIS are informed in order that arrangements may be made for the continued maintenance of procedures.

New regulation 173.305 - Transfer of maintenance responsibility

This regulation provides that an authorised designer can transfer the maintenance responsibility for a design to another authorised designer, if that designer is authorised to design terminal instrument flight procedures of the same type as the procedure concerned; and specifies the transfer procedure to be followed in that instance.

Subpart 173.D Performance of design work

New regulation 173.310 - Certified designer not to exceed the limitations of the designer's procedure design certificate

This regulation provides that a certified designer must not carry on design work on a terminal instrument flight procedure that is not of a type covered by the designer's procedure design certificate.

New regulation 173.315 - Authorised designer not to exceed the limitations of authorisations

This regulation provides that an authorised designer must not carry on the review or amendment of procedures for use by Australian aircraft operating under the IFR at, or in the vicinity of, an aerodrome in a foreign country; or carry on design work for use by Australian aircraft operating under the IFR at, or in the vicinity of, an off-shore installation, unless that activity is authorised by the designer's procedure design authorisation.

Subpart 173.E Administration

This sub-part is included as an interim measure while a separate Part of these Regulations dealing with regulatory administrative procedures is being developed.

Division 173.E.1 Application for, and grant of, procedure design certificates and procedure design authorisations and related matters

New regulation 173.320 - Request for information

This regulation provides that CASA may ask the applicant to provide additional information to assess the application.

New regulation 173.325 - Other things CASA can ask an applicant to do - interview

This regulation provides that CASA may ask the applicant or specified officers of the applicant to attend an interview to provide additional information in support of their application.

New regulation 173.330 - CASA may require demonstrations of equipment etc

This regulation provides for CASA to require an applicant to give a practical demonstration of the applicant's ability to carry out design work and to apply any facility or equipment used in that design work.

New regulation 173.335 - Grant of procedure design certificate or procedure design authorisation.

This regulation provides that CASA must grant the certificate or authorisation if the applicant meets all of the criteria and specified requirements and is satisfied that the applicant will not have an adverse effect on the safety of air navigation.

New regulation 173.340 - Material that CASA may or must take into account

This regulation requires CASA to take into account the applicant's record of compliance in the aviation industry and the applicant's relevant knowledge and experience in the aviation industry.

New regulation 173.345 - CASA may grant certificate or authorisation subject to conditions

This regulation provides that CASA may grant a procedure design certificate or procedure design authorisation subject to any condition that CASA considers necessary to impose in the interests of the safety of air navigation.

New regulation 173.350 - When decision must be made

This regulation provides that if CASA has not made a decision within 6 months of receiving the application, excluding the time requested for additional information to support the application, CASA is taken to have refused the application.

New regulation 173.355 - Notice of decision.

This regulation requires CASA to notify an applicant of a decision as soon as practical, and if an application is refused to provide reasons for its decision.

New regulation 173.360 - Return of certificate if procedure design certificate cancelled

This regulation provides that a person who ceases to be a certified designer must return their certificate to CASA within 14 days after ceasing to be a certified designer. A 1 unit penalty applies.

Division 173.E.2 Variation of procedure design certificates or procedure design authorisations

New regulation 173.365 - Applicability of this Division

This regulation applies in relation to a variation of a procedure design certificate or authorisation (including imposing, removing or varying a condition).

New regulation 173.370 - Application for variation

This regulation applies the same conditions to the application for a certificate or authorisation to an application for the variation of a certificate or authorisation. The regulation, however, relieves an applicant from providing information or documents that have previously been submitted, unless that information or document has changed.

Division 173.E.3 Directions to amend certified designer's or authorised designer's operations manual

New regulation 173.375 - CASA may direct amendments to designer's operations manual

This regulation provides that CASA may request amendments to the designer's operations manual to ensure the safety of air navigation.

Division 173.E.4 Suspension and cancellation of procedure design certificates or procedure design authorisations

New regulation 173.380 - Suspension or cancellation of procedure design certificate or procedure design authorisation by CASA

This regulation provides the process that CASA must follow to suspend or cancel a procedure design certificate or authorisation

New regulation 173.385 - Cancellation at request of certified designer or authorised designer

This regulation provides that CASA must cancel a procedure design certificate or authorisation if asked to do, in writing, by the designer - and specifies when the cancellation takes effect.

Division 173.E.5 Authorised Inspectors

New Regulation 173.390 - CASA may appoint authorised inspectors

This regulation provides for CASA to appoint an officer of CASA as an authorised inspector to enable CASA to conduct surveillance for the purpose of ensuring compliance with this Part.

New Regulation 173.395 - Identity card

This regulation requires CASA to issue an authorised inspector with an identity card.

New regulation 173.400 - Powers of authorised inspector

This regulation provides an authorised inspector with power to enter and inspect premises and to inspect the work of designers. Powers of inspection are limited to normal business hours at the premises where design work is carried on to inspect for the purpose of ensuring that design work is carried out in accordance with this Part.

Item 6 - Dictionary, Part 1

Item 6 amends the dictionary by introducing the meaning for terms 'instrument approach procedures', 'instrument departure procedures', instrument flight procedures' and 'lowest safe altitude' now used in the new regulations.

Schedule 2 Amendments of Civil Aviation Regulations 1988

Item 1 - Subregulation 2 (1), definition of instrument approach procedure

Item 1 omits the definition of instrument approach procedure from Regulation 2 as a new definition of instrument approach procedure is to be included in the Dictionary contained in CAR 1998

Item 2 - Regulation 178

Item 2 substitutes the existing Regulation 178 with a new Regulation 178. Regulation 178 sets out the lowest altitude that may be flown under the IFR and the circumstances under which a pilot may descend below that altitude. Amendment to Regulation 178 will not change those rules, however the terms used in the Regulation 178 must be amended to conform with the terms and definitions used in CASR Part 173.

There is no change to the 50 penalty unit fine applying to the existing CAR 178. Strict liability applies to this offence. Strict liability is applied on the advice of the Attorney-General's with regard to the harmonisation of all CASA regulations with the Criminal Code Act 1995.

Item 3 - Regulation 179, heading

Item 3 substitutes a new heading for Regulation 179: 'Authorised instrument approach procedures' required due to the introduction of the term 'authorised instrument approach procedure'.

Item 4 - Regulation 179

Item 4 replaces 'approved instrument approach procedure' with the new term 'authorised instrument approach procedure.'

Item 5 - After regulation 323

Item 5 inserts a new regulation 323A, which specifies the transitional determinations under regulation 178.

CIVIL AVIATION

SAFETY AUTHORITY

AUSTRALIA

Regulation Impact Statement

CASA #0203

Part 173 of the

Civil Aviation Safety Regulations (CASRs)

Instrument Flight Procedure Design

APPROVED

19 September 2002

ORR ID: 2303

CASA File Ref: 99/2706-02

Issued by CASA's Standards Administration and Support Branch

RIS CASA #0203 - September 2002

Table of Contents

Table of Contents        1

Abbreviations        2

Proposed CASR Part 173        3

Background        3

1. The Issue        4

2. Objectives        5

3. Options considered         5

Option 1 - No regulatory framework        5

Option 2 - Establish a regulatory framework for the instrument procedure       

design function        5

4. Impact analysis - Synopsis of change proposals       6

Persons affected        6

Expected impact        6

Expected impact - benefits        7

Expected impact - costs        7

5. Consultation        10

6. Conclusion and recommended option        13

7. Implementation and review        14

Abbreviations

AC       Advisory Circular

AIP       Aeronautical Information Publication

AIS       Aeronautical Information Service

CAA       Civil Aviation Authority

CAAP       Civil Aviation Advisory Publication

CAO       Civil Aviation Order

CAR       Civil Aviation Regulation (1988)

CASA       Civil Aviation Safety Authority

CASR       Civil Aviation Safety Regulation

DAP       Departure and Approach Procedures

FAA       Federal Aviation Administration (USA)

FAR       Federal Aviation Regulation

GPS       Global Positioning System

ICAO       International Civil Aviation Organization

IFR       Instrument Flight Rules

MOS       Manual of Standards

NPRM       Notice of Proposed Rule Making

PANS-OPS       Procedures for Air Navigation Services - Aircraft Operations (ICAO Doc 8168 Vol I & II)

RFC       Request for Change

SARPs       Standards and Recommended Practices (ICAO)

SOR       Summary of Responses

SCC       Standards Consultative Committee

VFR       Visual Flight Rules

Civil Aviation Safety Regulation (CASR) Part 173

- Instrument Flight Procedure Design

Background

Pilots of all aircraft, both in Australia and internationally, must operate to one of two sets of safety rules depending upon weather conditions, pilot qualification and aircraft equipment. Pilots can operate to the Visual Flight Rules (VFR) or to the Instrument Flight Rules (IFR). The IFR permits operation in all-weather conditions. VFR must operate clear of cloud and in specified visibility criteria. Most commercial aviation, including all scheduled passenger transport aircraft operations is to the IFR as a regulatory requirement.

Aircraft operating to the IFR follow safety procedures that are published on charts depicting the routes and altitudes to be flown, as well as the procedures for departure from an aerodrome, and approach to landing. These somewhat complex charts, and the associated pilot procedures, permit safe flight during departure, en-route and approach, clear of terrain and obstacles. Obstacle clearance must be calculated in accordance with criteria laid down by the International Civil Aviation Organization (ICAO). In Australia, instrument flight procedures are published in a document called the Aeronautical Information Publication-Departure & Approach Procedures (AIP-DAP), published by the Australian Aeronautical Information Service (AIS).

A long standing Civil Aviation Regulation, CAR 178, which relates to Minimum Height for Flight under the IFR, presently establishes CASA as the legal authority to make determinations (the outcome of the design) relating to IFR flight including instrument flight procedures. In the absence of any other specific regulations, CAR 178 (specifically sub-regulation (1), effectively makes instrument procedures design a function which CASA is authorised to do and for which it is responsible, although such a function is not specifically mentioned as a CASA function in the Civil Aviation Act (1988).

Prior to the establishment of CASA, the former Civil Aviation Authority (CAA) carried out the design of instrument flight procedures as well as internally controlling the standards. In 1995, as a result of two fatal accidents, the Government decided to split the regulatory and service provision roles of the CAA into separate organisations. This resulted in statutory changes that established CASA, the regulator, and Airservices Australia, the service provider, to replace the CAA. At the time formal reviews of the roles of both new organisations were undertaken to determine what functions were regulatory and what were service provision. Instrument flight procedure design was considered to be service provision, and in 1997 that function with the relevant specialist personnel was transferred from CASA to Airservices Australia. However, there were no associated regulatory changes made. Under CAR 178(1) CASA retained both the regulatory authority and the responsibility for the determination (i.e. the standards for, and the final approval) of the instrument flight procedures designs undertaken by Airservices. In this situation, CASA decided to issue delegations (under CAR 178) of its authority and responsibility, to individual Airservices design staff to give Airservices the authorisation to carry out the design work on CASA's behalf. Consequently, while CASA remains the responsible authority and retains the role of setting design standards, employees of Airservices Australia, as delegates of CASA, carry out the actual design work. This arrangement means that, from the legal perspective, the involved Airservices staff essentially work as CASA staff.

With the introduction of the Global Positioning System (GPS) for civil aviation navigation over the last decade, as a stop-gap measure pending the establishment of regulations to govern service providers and to assist in the GPS program, in 1999 CASA further delegated its power under CAR 178(1) to a private aviation consultancy company, IAC GPS Pty Ltd. Thus, both of the current CASA delegates, (Airservices and IAC GPS) are presently designing instrument flight procedures on CASA's behalf, operating within the standards and guidelines contained in the CASA Manual of Standards, a CASA internal, non-regulatory, technical manual which was developed for the guidance of its own staff, and also in company manuals.

CASA considers this existing arrangement to be undesirable, restrictive on competition, not in accordance with its policy to have a clear distinction between service provision and regulation, and does not wish to continue with it. However, CASA cannot simply repeal CAR 178; that would leave a regulatory vacuum for a safety critical function.

The design of instrument flight procedures is an essential but small element of the aviation industry. The number of persons in Australia engaged in the design of terminal instrument procedures in either a full or part-time capacity is probably less than 12. In addition to the two organisations holding a CASA delegation to design procedures for operations in Australia there are perhaps four organisations that provide a design service for clients operating outside Australia.

Instrument flight procedures are critical to safe navigation in all phases of flight but particularly in the phases of approach and landing. Any proposal for change to the present system must ensure that safety is not compromised, which in turn means that the service provided by certified designers must be of a quality equal to, or higher than, that which results under the existing arrangements.

1.       The Issue

1.1 No regulatory framework currently exists that covers the processes, technical standards, personnel qualifications and quality systems that presently pertain to instrument flight procedure design. There are technical standards, which are included in a non-legislative, CASA internal manual (the CASA Manual of Operational Standards) that sets out the design procedures and standards.

1.2 CASA does not wish to continue to undertake, or to bear the responsibility for, the design of instrument flight procedures. It sees the design function as one of service provision that should be undertaken by the industry, not by the safety regulator. CASA's role is to provide for a system where service provision may be carried out by the industry, using qualified persons and in accordance with standards which assure the appropriate level of safety, not to undertake the provision of aviation related services itself.

       

2.       Objective

2.1 The objective is transfer the authority and responsibility for the safety critical function of instrument flight procedure design from CASA to any capable, qualified designers within the aviation industry.

3.       Options

3.1 There are only two feasible options to satisfy the Objective:

        Option 1 - The function is transferred to aviation industry organisations without any regulatory framework to govern the activity.

        Option 2 - CASA establishes a regulatory framework that will enable CASA to transfer the authority and responsibility for the instrument flight procedure design function to industry, by permitting approved, competent organisations to carry out the function in accordance with technical standards which are part of the regulatory framework.

Option 1 - No regulatory framework

3.2 This option does not satisfy CASA policy dictates. It is long-established, basic CASA policy (as it is with all the leading overseas aviation nations) that all safety critical functions in aviation involving fare paying passenger transport operations are to be subject to regulatory controls which provide for compliance with, and the enforceability of, safety related standards.

3.3 This option fails to

        provide a regulatory framework,

        provide a means of entry for new service providers;

        specify the minimum qualifications for designers; or

        provide enforceable standards.

3.4 This option is totally unacceptable to CASA on the grounds that it does not guarantee the continuation of existing safety levels, because the standards for design cannot be legally enforced. For that reason, the option is not further considered in this RIS.

Option 2 - Establish a regulatory framework for the instrument procedure design function

3.5 This option requires the development of a new set of regulations (i.e. Part 173 of the Civil Aviation Safety Regulations). A complete regulatory framework would facilitate safety oversight by CASA and provides a mechanism for the certification of existing and new industry participants. It also permits the introduction of standards for the qualification and training of instrument flight procedure designers and operating standards for organisations engaged in design work.

3.6 This option is the only approach acceptable to CASA as it provides organisations with the requirements and standards, and CASA with the necessary regulatory controls, to assure the quality of the design work, and thus the preservation of the existing levels of safety. It would establish an appropriate regulatory structure to apply to any entity currently providing or proposing to provide instrument flight procedure design. The regulatory structure would:

       require all designers of terminal instrument flight procedures to be certified, including existing delegates (Airservices and IAC GPS Pty Ltd);

       set out the requirements for persons or organisations to obtain certification to design instrument flight procedures and the specification of requirements to be met to ensure that the standard of design work is maintained;

       set minimum standards for training and qualifications;

       require certified designers to implement safety management systems required by ICAO;

        introduce a requirement for a check and training system; and

       enable the entry of new or alternative service providers.

4.       Impact Analysis

Persons affected

4.1       The persons affected are:

       the two organisations currently authorised to design instrument flight procedures under delegation to CASA, Airservices Australia and IAC GPS Pty Ltd. Under the proposed regulatory scheme, they will cease to operate as a delegate of CASA and will both have to apply to be certificated as approved design organisations under CASR Part 173;

       other organisations that might wish to provide a design service in future, including aviation consultants, aircraft operators and airport owners/operators;

       individuals employed by certified designers who must meet minimum qualification and experience standards; and

       CASA, which will need to implement procedures to administer the certification and compliance of design organisations, and the regulatory oversight of their operation.

4.2 Pilots and the flying public will not be directly affected by the proposals. Pilots will continue to refer to instrument flight procedures published in the AIP and essentially will be unaware that any change has taken place.

Expected impact

Expected impact - Travelling public and community

4.3 The safety of the travelling public will not be affected. Safety will continue to be assured, by the establishment of regulatory requirements and standards for instrument flight design procedures. The cost to the travelling public and the community is expected to be imperceptible.

Expected impact - The environment

4.4 The proposed changes to the current legislation will not create any discernible change to, or effect on, the environment.

Expected impact - Transitional Arrangements

4.5 Current delegates under CAR 178 will continue to act as delegates of CASA for up to one year after the making of the new rules during which period it is expected that they will apply to CASA for a certificate of approval under Part 173. At the end of the one-year period existing delegations will be withdrawn.

Expected impact - Benefits

4.6 Part 173 will permit the entry of new design organisations. The availability of alternate service providers will reduce dependency upon any single design organisation. It may provide for the benefits of a competitive market in the instrument procedure design function.

4.7 Although there is only limited business opportunity in procedure design within Australia, Australian design organisations are currently providing services to customers outside Australia. These organisations consider that achieving Certified Designer status under CASR Part 173 will be a valuable credential and assist in promoting export business for Australian designers.

Expected impact - Costs

4.8 No design standards will be changed as a result of the proposed regulation. Therefore the cost of designing a procedure should not be affected by this regulation. However there may be an initial cost outlay to prospective organisations.

4.9 It will require a significant commitment by any organisation to receive CASA certification. Any applicant for a certificate, including the current delegates (Airservices and IAC GPS Pty Ltd) will incur costs associated with documentation of their operations and the submission of an application. An applicant who would be qualified to hold a certificate or authorisation would be expected to have most of the documentation required already prepared and in use in the conduct of their normal business. Additional documentation may need to be prepared to comply with detailed requirements for a safety management system, and training and checking system. Depending on the organisation, the applicant may require approximately 40 to 80 hours of their own labour in completing the task. The estimated cost of this activity could be in the order of $10000 to $20000.

4.10 Existing delegates will incur a one-off cost to meet new standards for operations manuals and safety management systems contained in the CASR Part 173 Manual of Standards (MOS). The costs associated with preparing an application can be expected to be a little less than those for new applicants.

4.11 Certificated design organisations will be subject to periodic audit by CASA and will incur minor costs in providing access and information for that purpose. Costs will generally be limited to the loss of production associated with facilitating CASA inspections and can be expected to amount to one or 2 days per annum for one or 2 persons.

4.12 CASA will incur costs associated with the assessment of applications and ongoing surveillance of certificate holders. Except for the initial certification of existing delegates, which will be a one-off cost, CASA's costs are not expected to be greater than those currently incurred. The costs to certify existing delegates are not expected to be significant, as both organisations are currently operating to standards similar to that proposed in CASR Part 173. CASA's main task will be to ensure compliance with the standards for operations manuals and safety management systems contained in the MOS.

4.13 It is not envisaged that CASA will impose a charge on existing delegates or new applicants for obtaining a certificate, as CASA may only charge a fee for those services included in the schedule to the Civil Aviation (Fees) Regulations. At present the schedule does not include the assessment of an application for a certificate associated with instrument flight procedure design. (This may change in the future).

4.14 Costs associated with the maintenance of procedures will not increase. At present both delegates: Airservices Australia and IAC GPS Pty Ltd, bear the cost of procedure maintenance. The costs associated with CASA's periodic flight checking of procedures are not expected to change.

4.15 The costs and benefits of the preferred proposal and the key issues are summarised in the table below.

Key Issue

Benefits

Costs

PUBLICATION



Public procedures to be published in AIP/DAP.

No change.

No change.

Certain helicopter procedures will not be published in AIP/DAP.

No change to existing arrangements under CAR 178.

No change.



Special or 'company' procedures may be excluded from AIP/DAP.

Operators may retain ownership and restrict the use of procedures in certain situations.

Special procedures are not to be permitted where conflict with public procedures may occur.

Costs to be met by the client.



MAINTENANCE



Maintenance of designs to be the responsibility of the designer.

Centralises the responsibility with persons who have detailed knowledge.

Provisions included in the new Regulation to withdraw procedures if not maintained.

No change to current practice.

Costs of maintenance to be met by the designer.

No change for existing providers.



CASA to conduct periodic flight checks.

Procedures will be regularly inspected to ensure continued safety.

Costs to be met by CASA.

No change to existing arrangements.



APPLICABILITY



Designers of Terminal Instrument Flight Procedures to be certificated.

Design organisations are subject to CASA entry control and surveillance ensuring that safety standards are maintained.

Appropriately qualified personnel design procedures.

Existing delegates will incur costs to comply with the new Regulation.

New providers will incur costs in the preparation of documentation.

CASA will incur surveillance and entry control costs.

Designers will incur costs in the training of staff.


Design of other procedures will not require special qualifications or a certificate.

Proposed regulation will enable pilots and air traffic controllers to continue to design less complex procedures.

Requiring certification does not impose additional restrictions and costs.

No change.



International carriers checking procedures overseas will be authorised.

Carriers are permitted to continue checking of procedures at overseas ports.

Improved procedures for the management and oversight of this activity.

No change.

As existing carriers currently employ qualified staff, training costs will be minimal.



Offshore helicopter operators will be authorised to design certain procedures.

A certified designer is not required.

Permits existing arrangements to continue.

Improved procedures for the management and oversight of this activity.

Some costs may be incurred by helicopter operators to ensure that staff are properly trained.



EMERGENCY PROCEDURES



Design of engine inoperative procedures not included in CASR Part 173.

Operational issues do not compromise the scope of CASR Part 173.

Conforms to international practice.

Conflict with operational regulations is avoided.

No change.



QUALIFICATIONS & EXPERIENCE



Chief Designer to be approved by CASA.

Ensures that the operations of certified design organisations are under the control of experienced and well- qualified persons.

Conforms to industry practice.


Training courses to be approved by CASA.

Training standards are controlled and monitored.

Minimum standards required for course content and delivery.

No cost involved in regard to the approval of currently recognised courses.

Costs will be incurred in the approval of other courses.


Minimum experience and recency requirements for design staff.

Design staff are kept current.

Minor costs may be incurred by organisations to ensure staff remain current.


Supervision of unqualified staff required.

The proposed rules enable a degree of flexibility in the employment and training of new staff by design organisation.

Enables practical design experience under supervision prior to obtaining qualification.

Allows staff that lack recency to be gainfully employed.



VALIDATION



Validation to be conducted by CASA pilots.

Independent check of procedures avoids possibility of conflict of interest.

No change to existing arrangements.

No change to existing arrangements.

CASA to provide validation pilot without charge.



Procedure designers to bear the cost of an aircraft and designer.

No change to current practice for existing delegates.

No change.



LIABILITY



Professional indemnity cover has not been included as a requirement.

This is a non-prescriptive requirement.

This policy is consistent with the regulation of many other persons engaged in aviation such as pilots, engineers, air traffic controllers, airport operators etc.

Normal commercial practice will require service providers to provide indemnity cover.

The cost of indemnity is expected to be high.



5.       Consultation

5.1 CASA is committed to working cooperatively with the aviation industry to maintain and enhance aviation safety. The CASA Standards Consultative Committee (SCC) is a joint CASA/industry forum, set up to involve the aviation industry formally during the development phase of regulatory material. The SCC examines proposed regulatory changes to determine if they are worth pursuing and assists CASA in the allocation of priorities for those projects. Aviation industry experts then work together with CASA staff in subordinate groups (SCC Sub-Committees and Project Teams) on the detailed development of regulatory material (both new regulations and amendments).

5.2 All legislative change projects use standard project management methodology in accordance with CASA's Regulatory Reform Plan. Each project has seven distinct phases:

       Initiation and Planning - the project is defined, a CASA/industry project team is selected with the assistance of the Standards Consultative Committee (SCC), and a project plan developed;

       Regulatory Development - involves data gathering, evaluation and consultation through project meetings, NPRMs and consultation briefings;

       Legal Drafting - by the Attorney General's Department;

       Formal Consultation - involves Notices of Proposed Rule Making (NPRM), consultation briefings and Summaries of Responses (SORs);

       Legislative Approval - involves a Regulatory Impact Statement (RIS), approval of the regulations by the Minister for Transport and Regional Services, and 'making' of the Regulations by the Governor-General;

       Implementation - includes industry education and training managed by CASA's Aviation Safety Promotion Division; and

       Commencement of the Regulations.

5.3       For the purposes of the Part 173 development, in April 2001 CASA set up a Project Team to guide the development, with members nominated by the SCC and key industry stakeholders in the Australian aviation community. This team continues to guide the development technically. The Project Team members (listed alphabetically) are:

* Peter (Molly) Bushell - representing the Royal Australian Air Force

* Martin Chalk - representing Airservices Australia

* Scotty Fairbairn - representing IAC GPS Pty Ltd

* Ray Field - representing the Department of Transport and Regional Services

* Shane Flynn - representing PCR Australasia Pty Ltd

* Mike Gahan - representing The Ambidji Group Pty Ltd

* Geoff Haines - representing the Civil Air Operations Officer's Association of Australia

* Neil Hanson - representing Kendell Airlines

* Bill Hamilton - representing the Aircraft Owners and Pilots Association, nominated by the CASA Standards Consultative Committee

* Chris Henry - representing Hazelton Airlines

* Bob Kennedy - (Project Manager) representing CASA's Part 173 Instrument Flight Procedure Design project

* Frank Lenarcic/Phil Mayo - representing Ansett Australia

* Andy Newman - representing the Regional Airlines Association of Australia, nominated by the CASA Standards Consultative Committee

* Rodney O'Meara - representing CASA's Coordination & Support Branch

* Keith Pope - representing Sydney Airports Corporation

* Terry Summers - representing the Helicopter Association of Australia, nominated by the CASA Standards Consultative Committee

* Ian Whitmore - representing Qantas Airways Ltd

5.4 In the period August - October 2001, CASA conducted a program of industry briefings in major centres coinciding with Australian Airports Association and RAPAC meetings. These briefings were held concurrent to the issue of a Discussion Paper DP 0107AS, which contained the initial, but well developed proposals on the subject.

5.5 DP 0107AS was posted to the CASA Website on 20/8/2001 and the availability notified in the Australian newspaper 'aviation supplement' on 24/8/2001 and the Weekend Australian on 25/8/2001. Some 400 printed copies of the DP were distributed.

5.6 CASA received eleven responses to the DP. Most of the respondents endorsed the proposed regulation and accompanying manual of standards. The main area of comment centred around:

        Consultation

        Airways System/CASA

        Qualifications

        Liability

        Validation of procedures

        Maintenance of procedures

5.7 Overall, respondents indicated their general acceptance or otherwise of the proposal in the DP as shown in the following table:

Response

No.

The proposal is acceptable without change

3

The proposal is acceptable but would be improved if changed

5

The proposal is not acceptable but would be acceptable if changed

0

The proposal is not acceptable under any circumstances

0

No clear indication of acceptability given

3

5.8 On 30 April 2002, CASA released for public comment Notice of Proposed Rule Making (NPRM) No 0215AS as the second step in the public consultation process. The NPRM was posted to the CASA Website on 30/4/2002 and availability notified in the Australian newspaper 'aviation supplement' on 03/05/2002 and the Weekend Australian on 04/05/2002. Approximately 410 printed copies were distributed. The NPRM took into account the responses received to the Discussion Paper DP0107AS and contained the first legal draft of the proposed Regulations and accompanying Manual of Standards for Part 173.

5.9 CASR Part 173 falls under the auspices of the SCC's Airspace Standards Sub-Committee, commonly known as the "Airspace Users Group". Representatives of that Sub-Committee developed and reviewed the content of NPRM 0215AS.

5.10 Six formal responses to the NPRM were received by CASA. While this is a comparatively small number of responses, it is to be recalled that instrument flight procedure design is a highly specialised function with only a few persons having the qualifications to understand the design processes.

5.11 Overall, respondents indicated their general acceptance or otherwise of the proposal in the NPRM as shown in the following table:

Response

No.

The proposal is acceptable without change

2

The proposal is acceptable but would be improved if changed

1

The proposal is not acceptable but would be acceptable if changed

0

The proposal is not acceptable under any circumstances

0

No clear indication of acceptability given

2

5.12 The comments generally concerned details rather than the general concept of the proposed rules. The distribution of those comments is as follows:

COMMENT TOPIC

Number of comments-->

Maintenance of Procedures

1

Procedure Validation

5

Authorised Designers

4

STARs

1

Manual of Standards

2

5.13 CASA and the Part 173 Project Team have evaluated all comments received. As well, in the course of considering the comments, the Project Team identified a number of editorial and typographical errors and omissions that have been corrected in the final draft documents.

5.14 A Summary of Responses (SOR) which presents CASA's evaluation of each comment received, together with the consequent disposition of the final legislative changes has been prepared and will be made publically available to coincide with the making of the legislation. The SOR will be available on CASA's website at www.casa.gov.au.

6.       Conclusion and recommended option

6.1        The proposed regulatory development of CASR Part 173 (option 2) will provide for:

        a regulatory framework, including uniform technical standards, for the transfer of the authority and responsibility for instrument procedure design work from CASA to interested industry organisations;

        the certification and surveillance of instrument procedure design organisations;

        the entry of new service providers from industry;

        an open, competitive market; and

        assurance that safety standards will be maintained in respect to this safety critical function.

7.       Implementation and review

7.1 CASR Part 173 will be submitted to the Minister for Transport and Regional Services for approval, and it is expected the Regulation will be made by the Governor-General, in Council, in November 2002 with a planned commencement date of June 2003.

7.2 An implementation/transition plan for CASR Part 173 will begin on rule making. Current delegates will continue to act as delegates of CASA for up to one year after the making of the new rules during which period it is expected that they will apply for and be granted a certificate. At the end of the one-year period existing delegations will be withdrawn.

7.3 The implementation/transition phase provides for Australia wide education and training programs, the development and approval of necessary (operational) manuals, the adjustment of delegations/authorisations, changes to regulatory services fees/charges, development and approval of procedures and the application of the new rules.

7.4 The monitoring and review of the new regulations will be conducted on an ongoing basis during the implementation/transition phase. Thereafter, following the commencement of the regulations, monitoring and review will be conducted on an as required basis and (within 5 years) as required by the Government.


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