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CIVIL AVIATION SAFETY AMENDMENT REGULATIONS 2007 (NO. 1) (SLI NO 41 OF 2007)
EXPLANATORY STATEMENT
Select Legislative Instrument 2007 No. 41
Issued under the authority of the Minister for Transport and Regional Services
Civil Aviation Act 1988
Civil Aviation Safety Amendment Regulations 2007 (No. 1)
Subsection 98(1) of the Civil Aviation Act 1988 (the Act) provides, in part, that the Governor-General may make regulations, not inconsistent with the Act, prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act. That subsection also provides that the Governor-General may make regulations in relation to the safety of air navigation, being regulations with respect to any other matters 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 Amendment Regulations introduce a new Part 137 into the Civil Aviation Safety Regulations 1998 (CASRs). Part 137 is entitled Aerial application operations – other than rotorcraft. It effectively replaces provisions of the Civil Aviation Regulations 1988 (CARs) and Civil Aviation Orders (CAOs) as these currently apply to aerial agricultural operations.
Background
“Aerial application operations”, as the term is used in Part 137, involve the use of aeroplanes to drop or spray application material onto the ground or water. This includes the application of fertilizer, trace elements, seeds, pesticides, water, and baits. The term also encompasses:
· inspection of work areas;
· pilot training and checking;
· training of crew members other than pilots;
· travel to and from work areas;
· the carriage of passengers, subject to restrictions; and
· preparatory work related to the above.
These activities have historically been regulated under the Civil Aviation Act 1988 as aerial agricultural operations. Since the commencement of aerial agricultural operation in Australia in the late 1950s, the regulations have developed incrementally and several exemptions to the regulatory requirements have been issued. New Part 137 of the CASRs serves to update and consolidate these requirements. The Part uses the term “aerial application operations” rather than “aerial agricultural operations” to avoid any confusion about the nature and scope of activities that are being conducted by this sector of the aviation industry, including firebombing and oil slick dispersion.
Consultation
CASA published a Notice of Proposed Rule Making - NPRM 0303OS – Aerial Application Operations, in June 2003. Responses to the NPRM closed 1 September 2003.
The objectives of the proposed Part 137, as articulated in the NPRM, were to:
· set the safety criteria for aerial application operations; and
· satisfy the criteria established for the development of the CASRs.
CASA received forty-one responses to the NPRM by the closing date, which included a number of substantive and comprehensive submissions. All comments were evaluated and incorporated, as appropriate, into the regulations.
Additional industry feedback was received on the content of Part 137 in 2006 as the result of new CASA regulatory policy direction aimed at ensuring that appropriate risk management procedures were applied and safety outcomes achieved in developing the new CASR Parts. In addition, on-going discussions were held with the Aerial Agricultural Association of Australia, whose members are affected by Part 137.
The Office of Regulation Review (ORR) assessed that a Regulation Impact Statement (RIS) need not be prepared by CASA for Part 137, since the regulatory changes were either minor or machinery in nature (largely moving existing regulatory requirements into the new CASR format) or had only a low level impact on the aerial application industry. The ORR RIS exemption number is ORR ID No.6237.
Enforcement
Consistent with Commonwealth policy, Part 137 identifies the offences that may be committed by reason of contravening its provisions and the number of penalty points assigned (10, 25 or 50). To the extent applicable and appropriate, the offences and penalty points have been made consistent with those applicable to predecessor provisions contained in the CARs, i.e. if contravention of a provision of the CARs was an offence with assigned penalty points, the contravention of a successor provision contained in Part 137 is also an offence with the same number of penalty points. In some cases, the number of penalty points has been modified for Part 137, taking into account the risks and consequences of non-compliance with the Part.
The offences contained in Part 137 are generally of a strict liability nature, meaning they do not require proof of any mental element. This is consistent with the enforcement approach adopted by CASA generally for offences under the CARs and CASRs. CASA enforcement policies and procedures call for a proportional enforcement response to contraventions. Mechanisms and processes used to facilitate compliance and enforcement include: counselling, demerit points, enforceable voluntary undertakings, requests for corrective action and, in more serious cases, infringement notices, prosecutions and licensing and certificate action. An assortment of surveillance tools such as on-site audits, ramp checks, spot checks and safety trend indicators, are also used.
Details of the Regulations are attached.
ATTACHMENT
Details of the proposed Civil Aviation Safety Amendment Regulations 2007 (No. 1)
Regulation 1 – Name of Regulations
Regulation 1 names the Regulations as the Civil Aviation Safety Amendment Regulations 2007 (No. 1).
Regulation 2 – Commencement
Regulation 2 provides that the Regulations commence on the day that is 60 days after they are registered.
Regulation 3 – Amendment of Civil Aviation Safety Regulations 1998
Regulation 3 provides that Schedule 1 amends the Civil Aviation Safety Regulations 1998 (the CASRs) by inserting Part 137 and making consequential amendments to Part 201.
Subpart 137.A Applicability and definitions
137.005 Applicability
This regulation addresses the application of Part 137. Subregulation (1) specifies that the Part applies to aerial application operations using aeroplanes.
Subregulations (2) - (5) provide transitional arrangements for operators who wish to conduct or are conducting aerial application operations. Subregulation (2) provides that on or after the commencing day of the Regulations, all applicants for an Air Operator’s Certificate (AOC) for aerial application operations must comply with Part 137. Subregulation (3) provides that applications for AOCs made on or after the application day but before the commencing day will be treated by CASA as if they were made under Part 137. “Commencing day” is defined in subregulation (8) as the day that Part 137 commences. “Application day” is defined as subregulation (8) as the day that falls 30 days before Part 137 commences.
Subregulation (4) allows operators holding AOCs for agricultural or substantially similar operations on the commencing day to transition early to Part 137 by making appropriate amendments to their manuals and submitting these to CASA. Subregulation (5) stipulates that AOC holders must comply fully with the Part 137 requirements by not later than 12 months after the commencing day.
Subregulations (6) and (7) address the application of Part 137 to pilots. Under subregulation (6), pilots who are not employed by and acting for an operator must comply with Part 137 as of the commencing day. Under subregulation (7) pilots who are employed by an operator are required to comply with Part 137, to the extent that Part 137 applies to the operator for that specific operation.
137.010 Definitions
This regulation defines key words and terms as they are used in Part 137.
It should be noted that the term “operator” as it is used in Part 137 means a person who holds an air operator’s certificate (AOC) that authorizes the use of an aeroplane in aerial application operations.
Subpart 137.B General
137.015 Approvals
This regulation gives CASA authorisation to approve anything that must be approved under Part 137. The approval must be in writing.
137.020 Effect of other provisions
This regulation provides that the provisions of Part 137 prevail over other provisions of the CASRs, if they are inconsistent.
137.025 Aeroplane – type certificate
This regulation effectively limits the conduct of aerial application operations under Part 137 to aeroplanes in the normal, restricted or utility category. As stated in the Note after subregulation (2), the use of any other aircraft type under Part 137 would require an exemption under Part 11 of the CASRs.
137.030 Authority of the pilot
This regulation requires an operator conducting aerial application operations to take all reasonable measures to ensure that persons comply with directions issued by the pilot in command.
Subpart 137 .C Operator certification and supervision
137.035 Applicant to prepare manual
This regulation sets out the requirements for an operator to prepare a manual that contains specific procedures when applying for an aerial application operation AOC.
137.040 Standard operations manual
This regulation recognises standard operations manuals for application operations and sets out specific procedures.
137.045 Application for an AOC or variation of an AOC
This regulation sets out the requirements for obtaining or varying an AOC.
137.050 Decision on AOC and manual
This regulation sets out the process for how CASA is to approve or refuse an AOC application or variation to an AOC.
137.055 Offences concerning operations manual
This regulation establishes the requirement for operators to conduct operations in accordance with an operations manual or an exemption granted by CASA.
137.060 Operator’s organisational structure
This regulation sets out the requirements for an operator to establish an appropriate organisational structure that identifies key personnel responsible for ensuring that all application operations are carried out to the standard required by Part 137.
137.065 Head of flight operations
This regulation sets out the requirements for the head of flight operations, previously known as a chief pilot.
137.070 Head of aeroplane maintenance control
This regulation sets out the requirements for the head of aeroplane maintenance control which includes ensuring that the operator complies with Subpart 137.M.
137.075 Replacement of holder of key personnel position
This regulation sets out the requirements for an operator to notify CASA of any changes to the operator’s key personnel structure.
137.080 Amendments to operations manual by operator
This regulation sets out the requirements for an operator to notify CASA of any changes that the operator makes to their operations manual.
137.085 Amendments to schedule of differences
This regulation sets out the requirements for an operator that has adopted a standard operations manual to notify CASA of any changes that the operator makes to their schedule of differences.
137.090 Amendments to standard operations manual
This regulation sets out the requirements for the owner of a standard operations manual to notify CASA of any changes they make to their manual.
Subpart 137 .D Operational procedures
137.095 Operations to be in VMC
This regulation requires aerial application operations to be conducted in visual meteorological conditions (VMC).
137.100 Use of weather forecasts or observations
This regulation sets out the requirements for obtaining meteorological information for application operations that are to take place more than 50 nautical miles from a departure aerodrome.
137.105 Landing areas
This regulation allows the use of any landing area that can be used safely for take-offs and landings.
137.110 Safety of persons other than crew at landing areas
This regulation sets out the requirements for an operator to have procedures in place to prevent injury to persons other than crew at landing areas.
137.115 Refuelling
This regulation requires operators to document in operations manuals and use appropriate safety procedures for refuelling.
137.120 Documents to be carried on a flight
This regulation defines which documents must be carried on an aerial application operation flight.
137.125 Manipulation of flight controls
This regulation sets out the requirements for who may manipulate the aeroplane’s flight controls.
137.130 Use of seats, seatbelts and harnesses
This regulation sets out the requirements for the use of seat belts and harnesses.
137.135 Carriage of passengers
This regulation sets out the conditions under which a passenger can be carried on an aeroplane engaged in an aerial application operation. The categories of passengers that are allowed are:
· an officer or delegate of CASA (subregulation (2));
· a person being carried to identify the application area, provided no application material is applied during the flight (subregulation (3)); and
· other persons carrying out duties related to their employment, with the permission of the operator and pilot (subregulation (3)).
In all cases, the operator and pilot must take precautions to ensure the safety of the passenger .
137.140 Minimum height and lateral separation for operation
This regulation sets out the minimum requirements for application operations around buildings.
Subregulation (1) allows an application operation aeroplane to fly at any height while over the work area or while laden with application material from the landing area used to load the aeroplane to the work area.
Subregulation (2) restricts an application operation aeroplane from flying closer than 100 metres, measured horizontally, from an occupied building in a populous area. Subregulation (4), however, provides closer separation provided the occupier of the building does not object.
Subregulation (3) allows an application operation aeroplane to fly within 100 metres, measured horizontally, from an occupied building not in a populous area, but restricts the height to not below 350 feet above ground level (AGL). Subregulation (4), however, provides closer separation provided the occupier of the building does not object.
137.145 Application over populous areas
This regulation sets out the requirements for aerial application operations over a populous area.
Subregulation (1) allows an application operation aeroplane to operate over a populous area only if the operation is carried out by an operator where procedures for the operation are set out in the operator’s operations manual and only when such a request is made by a person that, under a law of a State or Territory, may authorise the operation.
Subregulation (2) requires planning for the operation that includes consultation with the person that requested the operation, the identification of obstructions to flight and how these will be avoided, the identification of the most suitable emergency landing area, and coordination with air traffic control (ATC).
137.150 In-flight fuel management
This regulation sets out the requirements for pilots to plan a flight to ensure that the aeroplane has enough fuel to complete the flight safely. Subregulation (2) sets out the requirements for an operator to include fuel management procedures in its operations manual.
137.155 Operations near RPT flight
This regulation defines the parameters for aerial application operations within 5 nautical miles of aerodromes where regular public transport (RPT) flights are being conducted.
137.160 Aerodrome circuit requirements
This regulation addresses aerodrome traffic circuit protocols for aeroplanes engaged in aerial application operations.
137.165 Close proximity operations
This regulation sets out the parameters for operations involving multiple aeroplanes in the same or adjacent fields engaged in aerial application operations. Subregulation (2) limits such “close proximity operations” to operators (i.e. AOC holders). Subregulations (2) – (5) address coordination requirements for the operation.
137.170 Night operations
This regulation sets out the requirements for application operations conducted at night.
137.175 Firefighting operations
This regulation sets out the requirements for firefighting operations in application operation aeroplanes. Subregulation (1) allows firefighting activities only until the responsible emergency control authority has taken control of fighting the fire, or after the authority has taken control, at its request. Subregulation (2) prescribes minimum experience requirements for pilots who engage in firefighting.
Subpart 137.E All-weather operations
This Subpart is reserved for future use.
Subpart 137.H Aeroplane performance
137.180 General
This regulation requires pilots to take reasonable steps to satisfy themselves that an aeroplane can safely take-off and land, taking into account the aeroplane’s take-off weight and other relevant factors.
137.185 Take-off over a populous area
This regulation prescribes a minimum altitude and climb rate at the aerodrome boundary, for aeroplanes in aerial application operations that take-off over a populous area.
Subpart 137.J Weight and balance
137.190 Weight limitations
This regulation addresses weight limitations for aeroplanes engaged in aerial application operations. Subregulation (1) prescribes the maximum gross weight. Subregulation (2) describes how the pilot must calculate the aeroplane’s take-off weight. Subregulation (3) prohibits operators from specifying a minimum load to be carried that is greater than the load that the pilot reasonably considers to be safe.
137.195 Loading – supervision
This regulation requires pilots to supervise loading of the aeroplane and ensure that the load is placed in a way that is consistent with the data used to calculate the aeroplane’s weight and balance.
Subpart 137.K Instruments and equipment
137.200 Installation of instruments and equipment
This regulation requires operators to ensure that aeroplane instruments and equipment (other than role equipment) are generally approved, properly installed and serviceable.
Subregulation (2) defines what “properly installed” means for the purpose of the regulation.
Subregulation (3) lists the items of equipment that are not required to be approved.
137.210 Position of instruments and equipment
This regulation requires equipment to be installed on aeroplanes so that it can readily be operated by crew and is readily visible.
137.215 Instruments and equipment required
This regulation specifies equipment requirements for all application operations and for night application operations, by reference to the two tables included in the regulation.
137.220 Crew intercom system
Subregulation (1) of 137.220 requires an intercom system on aeroplanes, where the operation involves more than one crew. Subregulation (2) provides relief from this requirement in limited circumstances.
137.225 Seatbelts and harnesses
This regulation prescribes requirements for harnesses and seatbelts for aeroplanes in the restricted and utility category that conduct aerial application operations. The regulation does not apply to aeroplanes in the normal category.
Subpart 137.M Aeroplane maintenance
137.230 Fitting and removal of role equipment
This regulation prohibits the fitting or removal of role equipment by persons who are not trained.
Subpart 137.N Pilots
137.235 Qualifications for pilots conducting application operations
This regulation prevents operators from using pilots who do not have the appropriate qualifications. The Note specifies what these currently are, as per the provisions of the CARs.
137.240 Annual proficiency checks
This regulation requires pilots to hold a valid annual proficiency check. Subregulations (3) - (5) specify who may conduct these checks. Subregulation (6) allows for the use of synthetic trainers in doing the checking. Subregulations (7) and (8) address the validity period of the check. Subregulation (9) sets out what must be demonstrated for the purposes of the check. Subregulation (10) states that a pilot that completes an annual proficiency check is taken to have satisfactorily completed an aeroplane flight review under regulation 5.108 of the CARs.
Subpart 137.P Manuals, logs and records
137.245 Flight manual
This regulation requires operators to maintain a current flight manual or comparable approved document for each aeroplane they operate.
137.250 Checking records
This regulation requires operators to maintain records of the checking that is required for pilots under Subpart 137.N and to allow their pilots to examine and copy the records.
137.255 Document retention periods
Subregulation (1) requires operators to keep maintenance records for the aeroplanes they operate for at least 90 days after the aeroplane is in a condition that prevents it being flown in the future.
Subregulation (2) specifies retention periods for pilot records, by reference to the table in the subregulation.
137.260 Maintenance record to be given to new operator
This regulation requires operators to provide an aeroplane’s maintenance record, or a copy of it, to a subsequent operator.
Subpart 137.Q Flight duty time limitations and rest requirements
137.265 Application of Subpart 137.Q
This regulation specifies that Subpart 137.Q sets out requirements about duty and rest times for pilots who conduct aerial application operations.
137.270 Subpart not to affect subsection 1 of CAO 48.1
This regulation preserves the application of subsection 1 of CAO 48.1. That subsection addresses duty and rest times for pilots engaged in operations other than aerial agricultural operations (now aerial application operations).
137.275 Limit on flying hours
This regulation prescribes maximum flying hours for pilots for periods of 365 consecutive days and 28 consecutive days.
137.280 Off-duty period before and after tour of duty
This regulation prescribes minimum off-duty periods for pilots before and after their tours of duty.
137.285 Tour of duty – duration
This regulation addresses the maximum duration of tours of duty for pilots. Subregulation (1) establishes a standard maximum tour of duty of 14 hours. Subregulations (2) - (5) allow for extensions of this period, provided the pilot reasonably believes he or she is mentally and physically able to do so and would not be in contravention of other requirements of the Subpart.
137.290 Off-duty period each 14 days
This regulation prescribes a minimum off-duty period for pilots in any consecutive 14 day period.
137.295 Limit on time spent on tours of duty
This regulation addresses maximum tour of duty times over consecutive periods. Subregulation (1) establishes standard maximum periods of 44 hours over 3 consecutive days and 98 hours over 7 consecutive days. Subregulations (2) and (3) provide a formula for increasing these times, provided the pilot would not be in contravention of other requirements of the Subpart.
137.300 Pilot to be fit for duty
Subregulation (1) of 137.300 requires pilots to be fit for duty in order to commence an application operation. Subregulation (2) prevents operators from allowing a pilot to commence an operation if the operator has reason to believe that the pilot is not fit for duty. Subregulation (3) gives examples of when a pilot must be considered not fit for duty.
This regulation has the effect of adding administrative decisions made by CASA under Part 137 to the list of decisions set out in Regulation 201.004. These decisions are those in respect of which applications for review may be made to the Administrative Appeals Tribunal.