Commonwealth Numbered Regulations - Explanatory Statements

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CIVIL AVIATION AMENDMENT REGULATIONS 2005 (NO. 3) (SLI NO 243 OF 2005)

EXPLANATORY STATEMENT

 

 

Select Legislative Instrument 2005 No. 243

 

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

 

Civil Aviation Act 1988

 

Civil Aviation Amendment Regulations 2005 (No. 3)

 

 

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 matters with respect 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.

The Regulations replace regulations 166 and 167 of the Civil Aviation Regulations 1988 (CAR) to remove existing legislative impediments to the implementation of Characteristic 29 of Stage 2c of the National Airspace System (NAS).

 

Background

The proponent of the NAS is the National Airspace System Implementation Group (NASIG), which is now a group within the Department of Transport and Regional Services (DOTARS). The NASIG was originally established in 2002 by the Special Aviation Reform Group (ARG), an independent body that was established by the then Minister for Transport and Regional Services, the Hon John Anderson MP, to provide advice to the Government on airspace reform. The ARG recommended to the Minister that the National Airspace System of the United States of America (US NAS) be adopted as the preferred plan for the reform of Australia's low-level airspace. The Government agreed to that recommendation on 13 May 2002.

The implementation process for NAS has been undertaken in stages with a total of 50 NAS design characteristics proposed to be put in place. To date, Stages 1, 2a and 2b have been implemented. The final Stage 2c - Characteristic 29 was originally scheduled for implementation on 25 November 2004. However, in August 2004 the implementation date was rescheduled to 24 November 2005 to allow time for further analysis of the proposal.

The Civil Aviation Safety Authority’s (CASA’s) role in the implementation process, in addition to and not abrogating its statutory functions in relation to ensuring the safety of air navigation and the specific function to set appropriate standards in regulations, is to achieve any regulatory amendments required to permit safe implementation of the NAS.

New Standard of Operating Procedures

The Regulations introduce a new standard system of pilot operating procedures on, and in the vicinity of, non-controlled aerodromes to more closely align with the procedures that are in use in the United States of America (USA).


The USA procedures apply to non-controlled aerodromes. Each aerodrome has an assigned radio frequency termed a ‘Common Traffic Advisory Frequency’ (CTAF) in use for the purpose of aircraft radio communication. These procedures are commonly referred to as ‘CTAF Procedures’. The term non-controlled aerodromes defines those aerodromes that do not have an air traffic control service, or those that have an air traffic control service but the service is not in operation, for example, when the control tower is closed during night hours.

However, it should be noted that the Regulations also add unique Australian requirements to the generic USA CTAF procedures. These requirements have been added at CASA’s insistence, as being necessary safety mitigators to the risk of aircraft conflicts in the Australian aviation environment.

There are several thousand non-controlled aerodromes in Australia, many of which serve regional centres throughout Australia and support operations by high and low capacity Regular Public Transport (RPT) aircraft services, as well as a diverse range of commercial and private general aviation activities including flying training.

As air traffic becomes concentrated in the proximity of these aerodromes, in not being under air traffic control, the potential for aircraft to aircraft conflict is higher than in other phases of operation and in other areas of airspace. For this reason, the changes to pilot operating procedures that are established by the Regulations have been subjected to very close examination by CASA.

Consultation

CASA has consulted widely with the aviation industry on the original Characteristic 29 (US CTAF) proposals put to it by the proponent, NASIG, per medium of a Notice of Proposed Rule Making (NPRM 0401AS) that was published in January 2004.

The aviation industry’s responses to the NPRM indicated that there were widespread concerns with the original NASIG proposals from the airline and commercial sectors.  These concerns related to the proposed replacement of mandatory operational procedures with recommended practices, and the downgrading of the pre-existing mandatory radio broadcast practices used for the purpose of ‘alerted see-and-avoid’ to recommended practices.  CASA’s CEO subsequently conducted extensive personal consultation with all industry sectors and a number of individual stakeholders in 2004 to confirm these issues.

In mid-2004, in the light of the obvious industry concerns in responses to the NPRM, and arising from its own internal safety analysis, CASA decided it could not proceed with the original NASIG proposal as presented in the NPRM. CASA advised the National Airspace System Advisory Panel (NASPAG) that it could not fully accept the Characteristic unless certain operational requirements were met, notably that mandatory radio usage would be required at the busier aerodromes and certain elements of the proposed air-traffic circuit procedures revised. CASA was then asked by the NASPAG to continue to work with the NASIG to co-operatively revise the proposal to reflect those and several other CASA requirements. Accordingly a revised proposal was prepared in August 2004 and submitted to the then Minister for Transport and Regional Services.

However, because of the relatively short time that remained before the originally planned implementation date of 25 November 2004, and as all industry sectors were not prepared to give unequivocal support to the revised proposal at that time, it was decided by the Minister that Stage 2c should be postponed until 24 November 2005, in order that the necessary timelines for project redevelopment, re-analysis, education and training, and implementation could be provided for.


The postponement to 24 November 2005 provided the time, through the last quarter of 2004 and the first half of 2005, for further refinement of Characteristic 29 to be undertaken by the proponent (DOTARS/NASIG). This revision has now been issued by NASIG as Version 21 Final of Characteristic 29. The final rules for regulations 166, 166A and 167 that CASA has produced take account of that revised Characteristic, together with CASA’s decisions on the minimum regulatory safety requirements that are to be put in place.  As is its usual practice, CASA’s response to the comments received is set out in its Notice of Final Rule Making (in this case NFRM 0401AS) which has been posted to the CASA website and made freely available to all respondents and interested stakeholders.

 

Impact of the Regulations

The revised procedures will retain the basic USA CTAF system, as well as maintaining an acceptable level of safety for the unique Australian airspace environment where there is a different air-traffic mix and useage, a different supporting infrastructure, and a different operating culture of pilots, to that of the USA.

The Regulations specifically:

·        establish the particular flight procedures that the pilot-in-command must comply with when   operating at, or  in the vicinity of, a non-controlled aerodrome ( regulations 166 and 166A) or a controlled aerodrome ( regulation 167);

·        revise the operational rules applicable to the pilot in command of any aircraft operating at or in the vicinity of non-controlled aerodromes. The Regulations relate to the procedures for aircraft joining or departing the standard circuit pattern, operating in the standard circuit pattern, or carrying out straight-in visual approaches to a runway. In addition, the Regulations include a provision for CASA to give approval for an aircraft to join the circuit on base leg. They also provide that CASA may determine, by publication in the Aeronautical Information Publication (AIP), those aerodromes where operation in the vicinity and entry is disallowed unless the aircraft is equipped with an aeronautical VHF radio and the pilot-in-command makes radio broadcasts while in the vicinity of the aerodrome. (In practice, the aerodromes where mandatory broadcast requirements will apply will be published in the AIP by CASA, and will be those supporting large regional regular passenger transport aircraft services and those where there is a high level of flying training activity. CASA proposes that, initially, all those aerodromes that are within what is termed existing Mandatory Broadcast Zones will be established as aerodromes where mandatory radio carriage and broadcast procedures will apply); and

·        establish the particular radio broadcast requirements that apply at those aerodromes where the mandatory broadcast procedures apply.

In addition, because regulations 166 and 166A would become applicable only to operations at non-controlled aerodromes, the Regulations also amends regulation 167, ‘Procedure at controlled aerodromes’ in order to repeat several of the provisions in regulation 166 that are also relevant to aircraft operation s at controlled aerodromes. The amendment of regulation 167 is only for the purpose of restructuring the regulatory material – it includes only existing provisions that are not affected by the NAS Stage 2c CTAF proposals.

The Office of Regulation Review (ORR) had assessed that the proposed regulation amendments would have an impact on business and consequently the preparation of a Regulation Impact Statement (RIS) was mandatory. Accordingly, the proponent has prepared a RIS in support of the Regulations which is attached.

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

The Regulations commence on 24 November 2005. 

Details of the Regulations are attached.  


ATTACHMENT

 

 

Details of the Civil Aviation Amendment Regulations 2005 (No. 3)

 

 

Regulation 1 – Name of Regulations

Regulation 1 provides that the title of the Regulations is the Civil Aviation Amendment Regulations 2005 (No. 3).

 

Regulation 2 – Commencement

Regulation 2 provides that the Regulations commence on 24 November 2005. 

 

Regulation 3 – Amendment of Civil Aviation Regulations 1988

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

 
Schedule 1      Amendments

                                               

Item [1] - Subregulation 2 (1) after the definition of night flight

Item [1] inserts a new definition for non-controlled aerodrome meaning an aerodrome at which an air traffic control service is not operating. The term non-controlled aerodrome applies to those aerodromes without a control tower and to those which have a tower but the tower is not operating at the time. The definition is identical to that used in regulation 139.380 of the Civil Aviation Safety Regulations 1998.

 

Item [2] - Regulations 166 and 167

Item [2] substitutes new regulations 166, 166A and 167 for existing regulations 166 and 167 as follows:

 

Regulation 166 – Operating in vicinity of a non-controlled aerodrome

Subregulation 166 (1) establishes, for the purpose of the regulation, a definition of when an aircraft is in the vicinity of a non-controlled aerodrome, and thus the airspace where the provisions of regulations 166 and 166A effectively apply. The airspace is specified as airspace other than controlled airspace, within a distance of 10 nautical miles horizontally from the aerodrome and at any height above the aerodrome that an aircraft could conflict with other aircraft operating at the aerodrome. This is in keeping with the USA practice.

Subregulation 166 (2) establishes the basic regulatory requirements for safe operating practices for pilots when operating in the vicinity of a non-controlled aerodrome and in particular when joining, departing, or operating within the ‘circuit pattern’. It establishes the basic regulatory requirement for pilots to maintain a look-out for other aerodrome traffic to avoid a collision, and to ensure that her/his aircraft does not cause a danger to other aircraft. While use of radio is not specifically referred to in this subregulation, appropriate use of a radio if fitted would be an important part of ensuring that the aircraft does not cause a danger to other aircraft. Information material will be published to set out practices for radio monitoring and broadcasts which pilots are expected to use unless operational circumstances dictate otherwise.

The circuit pattern consists of five flight legs, each of which involves a series of standard procedures and manoeuvres used to allow the safe and orderly flow of aircraft traffic into, around and from an aerodrome.  The circuit procedures also safely expedite a number of take offs and landings to be practised in a short period of time. The circuit is a series of events beginning with the preparation for take-off and culminating in a stable approach and landing.  


The operational practices that are covered by the regulation are those general requirements with which the pilot-in-command of an aircraft will be required to conform when approaching a non-controlled aerodrome for a landing and when joining or departing the air traffic circuit.

A penalty of 25 penalty units applies for non-compliance with the subregulation. The offence is an offence of strict liability. One penalty unit is currently set at $110 under the Crimes Act 1914.

Subregulation 166 (3) provides that the pilot in command of an aircraft that is equipped with a serviceable VHF radio may, subject to a number of operational requirements for collision avoidance, carry out a straight-in visual approach to a runway when landing at a non-controlled aerodrome, rather than having to join the circuit pattern. Such a straight-in visual approach is one of only two exceptions to the requirement in subregulation 166 (1) for inbound aircraft to join the circuit pattern. The Civil Aviation Safety Authority (CASA) has trialled this procedure with certain aircraft at non-controlled aerodromes for many years and is convinced that, with the operational conditions that are specified at subparagraphs (a) to (e) in place, the procedure is safe. Its main advantage is that it has a significant long term cost benefit in that it reduces flying time when compared with the procedure for joining the circuit pattern prior to landing.

A penalty of 25 penalty units applies for non-compliance with the subregulation. The offence is an offence of strict liability.

Subregulation 166 (4) provides that the pilot in command of an aircraft may join the base leg of the circuit pattern if CASA has approved the operation and details of the approval are published in the Aeronautical Information Publication (AIP).

A penalty of 25 penalty units applies for non-compliance with the subregulation. The offence would be an offence of strict liability.

Subregulation 166 (5) provides for exceptions to the requirements of certain provisions of subregulations 166 (2) and 166 (3) that will apply when a pilot is conducting an instrument approach in conditions known and defined as Instrument Meteorological Conditions (IMC), which basically means when the aircraft is being operated under the Instrument Flight Rules and in weather conditions of significantly reduced visibility. This subregulation is necessary because certain instrument approach procedures used in IMC conditions may not position an aircraft to join the circuit pattern as specified in subregulation 166 (2).

Subregulation 166 (6) provides that the pilot in command of an aircraft that is not equipped with a serviceable VHF radio may not operate the aircraft in the vicinity of certain aerodromes unless the operation is authorised in writing by CASA. The aerodromes that are affected by this new subregulation will be specified by CASA as a direction under regulation 166A, details of which are required to be published in the Aeronautical Information Publication (AIP) or Notices to Airmen (NOTAMS) under subregulation 166A (2).

A penalty of 25 penalty units applies for non-compliance with this subregulation. The offence is an offence of strict liability.

Subregulation 166 (7) requires that a pilot-in-command must not take-off or land an aircraft on a part of an aerodrome outside the landing area of the aerodrome. This is an existing requirement in regulation 166 that has been retained without change.

A penalty of 25 penalty units applies for non-compliance with this subregulation. The offence is an offence of strict liability.

Subregulation 166 (8) establishes that an offence against subregulations (2), (3), (4), (6) or (7) is an offence of strict liability.


Regulation 166A – Designation – carriage of radio

Regulation 166A is a new regulation, developed specifically for the Australian situation. There are fundamental differences between the Australian situation and that at non-controlled aerodromes in the USA, mainly in relation to different traffic densities and mix of aircraft types, the airspace infrastructure, and pilot culture. Because of these differences, CASA has decided that regulation 166A is necessary for the mitigation of the risk of aircraft conflicts, The regulation imposes mandatory carriage and use of aircraft radio at the busier non-controlled aerodromes in Australia.

Subregulation 166A (1) authorises CASA to determine those non-controlled aerodromes in the vicinity of which a serviceable radio must be carried in aircraft. The aerodromes that will be designated under this Subregulation will be those busier regional aerodromes that support large regular public transport aircraft, or those aerodromes where a high level of flying training activity is involved. In practice, CASA has previously developed criteria to decide on the aerodromes where this mandatory radio carriage requirement applies. CASA had undertaken to review that criteria and its application in the new operating environment. CASA considers that initially, all aerodromes that are within existing Mandatory Broadcast Zones will be covered by this subregulation.

Subregulation 166A (2) requires that where CASA issues a designation  under this regulation, it must ensure that details of the designation (that is, the place names of the designated aerodromes) are published for the advice of pilots in the AIP or NOTAMS.

Subregulation 166A (3) requires that all aircraft must carry radios and that pilots must monitor and broadcast on the radio frequency for the aerodrome when operating in the vicinity of those aerodromes designated under subregulation 166A (1).

Subregulation 166A (4) establishes that an offence against subregulation 166A (3) is an offence of strict liability. A penalty of 25 penalty units would apply for non-compliance with this subregulation.

Subregulation 166A (5) establishes that it is a defence to a prosecution under subregulation 166A (4) if the defendant had a reasonable excuse. A reasonable excuse might be one relevant to the safety of life or property.

 

 

Regulation 167 – Operation on or in the vicinity of a controlled aerodrome

Subregulation 167 (1) essentially repeats the existing rules that are presently applicable to operations at controlled aerodromes (i.e. those where an air traffic control service is operating). No new rules have been added, however the amendment of regulation 167 is necessary as a consequence of regulation 166 becoming only applicable to operations on or in the vicinity of non-controlled aerodromes. For that reason, several of the basic operational rules that are in the proposed regulation 166 are also now repeated in this regulation; those rules being:

(a)        the requirement for the pilot-in-command to maintain a lookout for other aircraft traffic to avoid collision; and

(b)        unless otherwise instructed by air traffic control:

                     (i)         to the extent practical, land and takeoff into wind, and

(ii)        before landing, descend in a straight line starting at least 500                   metres from the threshold of the landing runway; and

                     (iii)       after take-off, not to commence a turn before 500 feet clear of                                      the terrain unless necessary to do so for terrain avoidance; and

                     (iv)       make all turns to the left.


The existing requirements in regulation 167 pertaining to radio communication and obtaining prior authorisation from air traffic control for any manoeuvre preparatory to take-off, landing and taxiing is retained.

Subregulation 167 (1) provides that the existing penalty of 25 penalty units is retained for non-compliance with this subregulation.

Subregulation 167 (2) provides that the offence remains as an offence of strict liability.

 

Item [3] - Regulation 323AA

Item [3] inserts a new regulation 323AA, ‘Transitional – certain directions under regulation 166’.

Regulation 323AA establishes transitional arrangements to preserve the existing CASA determinations made under subparagraph 166 (1)(d)(i) of existing regulation 166, which relates to the direction of turns that aircraft are required to make when flying in circuit patterns at non-controlled aerodromes.

The standard aerodrome circuit pattern that applies at the majority of aerodromes continues to consist only of left-hand turns, as specified at subparagraph 166 (2)(e)(iii).  However, at a number of aerodromes, the direction of circuit turns may be specified as right hand turns, so as to keep aircraft clear of built-up areas or dangerous terrain. Where this is the case, the relevant aerodrome locations and runways involved are determined by CASA and published in the AIP, for the advice of pilots.

 

 


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