Explanatory Statement
Civil Aviation Safety Regulations 1998
Maintenance on warbird and historic and replica aircraft (WHR) — directions and licence condition
Purpose
The purpose of this instrument is, for particular aircraft, to place a person or organisation (a COA holder) holding a certificate of approval under regulation 30 of the Civil Aviation Regulations 1988 (CAR 1988) for maintenance of the aircraft, in a similar position to that of an approved maintenance organisation (an AMO) under the Part 145 of the Civil Aviation Safety Regulations 1998 (CASR 1998). The particular aircraft are warbirds, and historic and replica aircraft (WHR). For the extended privileges to apply, the COA holder must meet a range of Part 145-like safety conditions and requirements with respect to the training, qualifications, experience and authorisation of persons who carry out the maintenance.
Under Part 145 of CASR 1998, AMOs already have the facility to train and authorise specialist maintainers. However, existing maintenance organisations who are not AMOs, but who are COA holders under CAR 1988, have not previously been able to use similar training, authorising and maintaining opportunities for WHR purposes.
The direction complements the contemporaneous Civil Aviation Order (CAO) 104.0 Amendment Instrument 2013 (No. 1) (the CAO amendment) which adds a new subsection 8 to CAO 104.0 setting out the specific conditions under which a certificate holder may carry out maintenance on the particular aircraft.
WHR are aircraft which give rise to particular maintenance and safety issues for which standard aircraft maintenance engineer licence training does not cater. Additional special training, the acquisition of special skills, and the conduct of relevant maintenance in a structured organisational environment, are considered by CASA to be essential to the safety of operations in these aircraft. As such, the requirements of the direction call for relevant maintenance personnel to be provided with additional training and authorisation by the relevant maintenance organisations carrying out maintenance on these aircraft.
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and the safety of air navigation. Under subsection 98 (5A) of the Act, the regulations may empower CASA to issue instruments in relation to (among other things) the maintenance of aircraft. Section 3 of the Act defines a civil aviation authorisation (a CAA) as an authorisation under the Act or the regulations to undertake a particular activity (for example, a permission, authority or licence).
Licence conditions
Under subregulation 11.068 (1) of CASR 1998, for subsection 98 (5A) of the Act, CASA may issue a legislative instrument that imposes a condition on a specified class of authorisations. (Under regulation 11.015, an authorisation is defined as including most forms of a CAA and thus includes various maintenance authorisations and licences.)
Under subregulation 11.068 (2), the class of authorisations may include authorisations granted before the imposition of the condition. Under subregulation 11.068 (3), a condition imposed by a legislative instrument issued under subregulation (1) is taken to be a condition of every authorisation of the class mentioned in the instrument.
Directions
Under subregulation 11.245 (1) of CASR 1998, for subsection 98 (5A) of the Act, CASA may issue a direction about any matter affecting (among other things) the maintenance of aircraft.
Under subregulation 11.245 (2) of CASR 1998, a direction may only be issued if it is reasonably necessary for the safe navigation and operation, or maintenance, of aircraft, is not inconsistent with the Act and is for the purposes of CASA’s functions.
Under regulation 11.250 of CASR 1998, a direction ceases to be in force on the day specified in the direction, or if no day is specified, 1 year after the direction commenced.
Under subregulation 11.255 of CASR 1998, it is a strict liability offence to contravene a direction.
Background
A WHR means an aircraft that is manufactured for an armed force; or an historic or replica aircraft that (generally) meets the airworthiness requirements for the issue of a standard certificate of airworthiness and issued with a special certificate of airworthiness for limited category aircraft, or an experimental certificate for aircraft.
WHR (generally ex-military, historic and replica aircraft) often present maintenance issues which require special maintenance, and specialist maintenance training and skills. Most of these aircraft are not type rated under the aircraft engineer licence (AEL) requirements of Part 66 of CASR 1998 and generally there is, therefore, no specific training requirement associated with the exercise of AEL privileges. However, the aircraft systems are different from those taught during category training, giving rise to a need for specific training and authorisation before Part 66 licence privileges can safely be exercised for such aircraft.
The direction works in tandem with CAO 104.0, as amended contemporaneously with the direction by the CAO amendment. CAO 104.0 adds a new subsection 8 to the CAO setting out the specific conditions under which a COA holder may carry out maintenance on a WHR.
Together, these 2 measures are designed to place a COA holder for maintenance of aircraft in a similar position to that of an approved maintenance organisation (AMO) under Part 145 of CASR 1998 for the maintenance of WHR — provided a generally similar range of safety conditions and requirements are met with respect to the training, qualifications, experience and authorisation of persons who carry out the maintenance for the COA holder.
Safety requires that some of the larger or technologically varied WHR should only be maintained within the structured environment of a COA holder’s organisation. The instrument lists aircraft types in a 2-part Schedule, and maintenance on aircraft mentioned in the first Part not only usually requires special prescribed training over and above the more usual aircraft engineer licence training requirements but, in addition, all scheduled maintenance may only be carried out by a COA holder and not by an independent engineer (see below).
The requirements for WHR set out in both the direction and the related CAO amendment will, in due course, be codified in regulatory amendments to CASR 1998.
Direction
COA holder — Part 1 WHR
Under subsection 4.1 of the direction, a COA holder may carry out Part 1 WHR maintenance only if the maintenance is carried out either by a trained WHR employee who holds a Part 1 WHR licence, or by an employed authority or type rating holder who holds a current certification authorisation. These terms have the following meanings:
- an authority or type rating holder means a person who holds an airworthiness authority under subregulation 33B (1) of CAR 1988 to carry out WHR maintenance or to conduct non-destructive testing (NDT); or who holds an aircraft welding authority under subregulation 33D (1) of CAR 1988; or who holds an authorisation under subregulation 42ZC (6) of CAR 1988 to carry out maintenance on class B aircraft (that is not transport category, and not operating under an air operator’s certificate (an AOC) for paragraph 42ZC (4) (e) of CAR 1988. Additionally, an authority or type rating holder means the holder of a category B1 or B2 licence with a rating for a type rated aircraft that is a WHR. A Note explains that type rated aircraft type is defined in Part 3 of the Dictionary in CASR 1998.
- a certification authorisation, for an employee of a COA holder, means a certification authorisation issued by the COA holder under subsection 8 of CAO 104.0, authorising the employee to perform Part 1 WHR maintenance.
- an employed authority or type rating holder means a person who is an authority or type rating holder employed by a COA holder.
- a Part 1 WHR licence means a licence in the Licence Category mentioned for a WHR in column 2 of Part 1 of Schedule 1. (A Part 2 WHR licence means a licence in the Licence Category mentioned for a WHR in column 2 of Part 2 of Schedule 1.)
- a Part 1 WHR maintenance means maintenance on a WHR mentioned in Part 1 of Schedule 1. (Part 2 WHR maintenance means maintenance on a WHR mentioned in Part 2 of Schedule 1.)
- a trained WHR employee means a WHR employee who has successfully completed training and assessment in accordance with subsection 8 of CAO 104.0, and who holds a current certification authorisation from the COA holder authorising the employee to perform particular maintenance on a WHR mentioned in Part 1 of Schedule 1.
- a WHR employee means an employee of a COA holder who is a Part 66 category B1 licence holder (in a subcategory relevant to the WHR on which he or she proposes to carry out maintenance under subsection 8 of CAO 104.0) or a category B2 licence holder.
COA holder’s employee — Part 1 WHR
To complement subsection 4.1 of the direction, under subsection 4.2, a person may not carry out Part 1 WHR maintenance unless the maintenance is carried out under a COA holder, and the person is a trained WHR employee who holds a Part 1 licence for the WHR and who holds a current certification authorisation; or is an employed authority or type rating holder who holds a current certification authorisation.
COA holder — Part 2 WHR
Under subsection 5.1 of the direction, a COA holder may carry out Part 2 WHR maintenance only if the maintenance is carried out either by a WHR employee who holds a Part 2 WHR licence (whether or not a trained WHR employee), or by an employed authority or type rating holder. For this purpose, these employees are not required to hold a certification authorisation.
COA holder’s employee — Part 2 WHR
To complement subsection 5.1 of the direction, under subsection 5.2 (but subject to subsection 7 and the privileges of independent engineers), a person may not carry out Part 2 WHR maintenance unless the maintenance is carried out under a COA holder, and the person is a WHR employee who holds a Part 2 WHR licence (whether or not a trained WHR employee and whether or not holding a certification authorisation); or an employed authority or type rating holder (whether or not holding a certification authorisation).
A Note in the instrument explains that section 5 is consistent with the existing privileges of a COA holder, an employed licence holder and an employed authority or type rating holder under CAR 1988, and is included in the direction both for completeness and in anticipation of eventual regulatory amendments.
COA holder — other WHR
Under subsection 6.1 of the direction, for a WHR that is not mentioned in Part 1 or Part 2 of Schedule 1 (an unlisted WHR), a COA holder may only carry out maintenance on the WHR as if it were Part 1 WHR maintenance and as if subsection 4.1 applied to the holder for the WHR.
A Note explains that, over time, where, on the basis of analysis and experience, CASA is satisfied that it is safe to do so, CASA may amend the direction by adding other WHR to Part 1 or Part 2 of Schedule 1 as appropriate.
COA holder’s employee — other WHR
To complement subsection 6.1 of the direction, subject to subsection 7 below, for an unlisted WHR, a person may only carry out maintenance on the WHR as if it were Part 1 WHR maintenance and as if subsection 4.2 applied to the person for the WHR.
Deemed unlisted
A WHR with an airframe mentioned in column 1 of Part 2 of the table in Schedule 1, whose piston engine type has been modified to be a turbine engine type, is also deemed to be an unlisted WHR.
Independent engineers
An independent engineer is defined in the direction as a licensed aircraft maintenance engineer who may perform maintenance certification for maintenance on a class B aircraft under paragraph 42ZC (4) (b) of CAR 1988; or an authority or type rating holder mentioned in paragraph (a), (b) or (c) of the definition of authority or type rating holder (that is excluding paragraph (d) authorisations under subregulation 42ZC (6) of CAR 1988 to carry out maintenance on class B aircraft). An independent engineer is not a COA holder, or an employee of a COA holder.
A Note to the definition explains that the independent engineer’s licence or authority must be such as to permit him or her to perform maintenance certification for the maintenance of the WHR under paragraph 42ZC (4) (b) of CAR 1988 (which excludes certain class B aircraft maintenance as described in Schedule 7 of CAR 1988).
Under section 7 of the direction, it is a condition, under regulation 11.068 of CASR 1998, on the licence, or the airworthiness authority or the aircraft welding authority of the independent engineer that, for Part 1 WHR maintenance, he or she may only perform maintenance certification for unscheduled maintenance.
Unscheduled maintenance for a WHR, is defined in the direction as maintenance that is neither scheduled maintenance nor maintenance referred to in Schedule 7 of CAR 1988.
Scheduled maintenance, for a WHR, is defined as maintenance that is scheduled by the maintenance schedule that applies to the WHR. A Note explains that the expression maintenance schedule is defined in subregulation 2 (1) of CAR 1988.
Two further Notes explain the position of an independent engineer. An independent engineer may perform maintenance certification for maintenance, or carry out aircraft maintenance or welding (as the case may be) on a class B aircraft under paragraph 42ZC (4) (b) of CAR 1988. However, for Part 1 WHR maintenance, he or she is restricted, by the condition imposed under section 7 of the direction, to performing maintenance certification, or carrying out aircraft maintenance or welding for unscheduled maintenance only.
The second Note explains that under instrument CASA 155/11, for paragraph 42ZC (4) (e) of CAR 1988, all subcategory B1 licence holders, or category B2 licence holders, are already authorised to carry out the maintenance mentioned in Schedule 8 of CAR 1988 on any class B aircraft, including a WHR. (Schedule 8 maintenance is the restricted range of maintenance that a licensed pilot may carry out on his or her aircraft before and after flight.)
Direction does not affect certain matters
Section 3 of the direction makes it clear that the instrument does not affect certain maintenance arrangements.
First, the instrument does not affect the operation of regulation 42G of CAR 1998. As an accompanying Note explains, regulation 42G of CAR 1988 concerns who may be qualified as an “appropriate person” to conduct the independent inspection that is required when an aircraft flight control system is assembled, adjusted, repaired, modified or replaced in the course of maintenance on the aircraft.
Secondly, with 1 qualification, the instrument does not affect the operation of paragraph 42ZC (4) (b) of CAR 1988 in respect of a class B aircraft. Paragraph 42ZC (4) (b) of CAR 1988 concerns maintenance on a class B aircraft (other than as mentioned in Schedule 7 of CAR 1988) carried out by an independent engineer not engaged by a COA holder, or carried out by a person employed by such an engineer. The qualification is that the AEL of an independent engineer is subject to the condition imposed on it by section 7.
Thirdly, the instrument does not affect the operation of paragraph 42ZC (4) (d) of CAR 1988 in respect of a WHR. Paragraph 42ZC (4) (d) of CAR 1988 concerns maintenance, specified in Schedule 8 of CAR 1988, that may be carried out by a pilot on a class B aircraft. A WHR is a class B aircraft.
Fourthly, the instrument does not affect a category B1 licence holder, or a category B2 licence holder (under Part 66 of CASR 1998), who is authorised to carry out the maintenance mentioned in Schedule 8 of CAR 1988. Under instrument CASA 155/11, for paragraph 42ZC (4) (e) of CAR 1988, each subcategory B1 licence holder, or category B2 licence holder, is authorised to carry out the maintenance mentioned in Schedule 8 of CAR 1988 on any class B aircraft, including a WHR.
Finally, to avoid doubt, the instrument does not affect anything done for or under Part 145 of CASR 1998. Under Part 145 of CASR 1998, an AMO under Part 145, and AEL holders employed by an AMO, already have their own regulatory arrangements for the kinds of special authorisations and maintenance described in this direction. Currently, Part 145 of CASR 1998 applies only for aircraft engaged in regular public transport (RPT) operations. These are class A aircraft and the direction relates only to WHR which are class B aircraft. However, the avoidance of doubt provision is for clarity and it prevents uncertainty arising should this position change before the direction expires in 2016.
Legislative Instruments Act 2003 (LIA)
Under paragraph 98 (5A) (a) of the Act, the regulations may empower CASA to issue instruments in relation to matters affecting the maintenance of aircraft. Under subregulation 11.245 (1) of CASR 1998, for subsection 98 (5A) of the Act, CASA may issue a direction about any matter affecting the maintenance of aircraft. Under subsection 98 (5AA) of the Act, if a maintenance instrument (such as this direction) is expressed to apply to a class of persons or aircraft, the instrument is a legislative instrument. The direction is expressed to apply to WHR, which constitutes a class of aircraft for this purpose, and to COA holders and independent engineers, who constitute classes of persons.
In any case, under subsection 5 (4) of the LIA, if some provisions of an instrument are of a legislative character and others are not, the instrument is taken to be a legislative instrument. Subregulation 11.068 (1) of CASR 1998 expressly provides that the imposition of conditions on a class of authorisations may be by means of a legislative instrument and the direction imposes conditions on authorisations, namely the licences of independent engineers. The direction is, therefore, a legislative instrument and it is subject to registration, and tabling and disallowance in the Parliament, under sections 24, and 38 and 42, of the LIA.
Consultation
Details of the nature and extent of the consultation CASA considered appropriate for this instrument are set out in Appendix 1.
Statement of Compatibility with Human Rights
The Statement in Appendix 2 is prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The direction does not engage any of the applicable rights or freedoms, and is compatible with human rights, as it does not raise any human rights issues.
Office of Best Practice Regulation (OBPR)
The instrument has only a nil to low impact on business. A regulatory impact statement (RIS) for the CAO amendment is not required for OBPR purposes because a preliminary assessment of business compliance costs indicates that the amendment will have only a nil to low impact on business. For this reason OBPR granted a RIS exemption (Id. No. 14197).
Commencement, making and taking effect
The direction commences immediately after the commencement of Civil Aviation Order 104.0 Amendment Order 2013 (No. 1).
However, under subsection 1.2 of the instrument, the direction only takes effect for a COA holder immediately after subsection 8 of CAO 104.0 takes effect for the holder. Under subsection 1.3 of the instrument, the direction takes effect for each of the COA holder’s employed authority or type rating holders and WHR employees immediately after the direction takes effect for the COA holder.
Under subsection 1.4 of the instrument, the direction takes effect for an independent engineer on and from 1 October 2013.
Under subsection 1.5 of the instrument, the direction stops having effect at the end of 30 September 2016 as if it had been repealed by another instrument. (Under regulation 11.250 of CASR 1998, the direction must be time-limited.)
The direction has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
[Instrument number CASA 197/13]
Appendix 1
Consultation under the Civil Aviation Act and the Legislative Instruments Act
CASA’s statutory consultation obligations are set out in the Act and the LIA.
Legislative provisions
Under section 16 of the Act, in the performance of its functions and the exercise of its powers, CASA must, where appropriate, consult with government, commercial, industrial, consumer and other relevant bodies and organisations (including ICAO and bodies representing the aviation industry).
Under subsection 17 (1) of the LIA, before making a legislative instrument, particularly where the proposed instrument is likely to have a direct, or a substantial indirect, effect on business; or to restrict competition, a rule-maker (like CASA) must be satisfied that any consultation that is considered by CASA to be appropriate and that is reasonably practicable to undertake, has been undertaken.
Under subsection 17 (2) of the LIA, in determining whether any consultation that was undertaken is appropriate, CASA may have regard to any relevant matter, including the extent to which the consultation:
(a) drew on the knowledge of persons having expertise in fields relevant to the proposed instrument; and
(b) ensured that persons likely to be affected by the proposed instrument had an adequate opportunity to comment on its proposed content.
Under subsection 17 (3) of the LIA, consultation could involve notification, either directly or by advertisement, of those who are likely to be affected by the proposed instrument. Such notification could invite submissions by a specified date or participation in public hearings.
Under subsection 18 (1) of the LIA, despite section 17, the nature of an instrument may be such that consultation may be unnecessary or inappropriate.
Under subsection 18 (2) of the LIA, examples of when CASA may be satisfied that consultation is unnecessary or inappropriate include instruments that: are minor or machinery in nature and do not substantially alter existing arrangement; are urgent; concern Budget decisions; are for national security; have already been consulted upon; relate to employment; or relate to management and service in the ADF.
Under section 19 of the LIA, the fact that consultation does not occur does not affect the validity or enforceability of a legislative instrument.
Under paragraph 26 (1A) (d) of the LIA, if consultation was undertaken under section 17 of the LIA the Explanatory Statement must contain a description of the nature of that consultation.
Under paragraph 26 (1A) (e) of the LIA, if no such consultation was undertaken, the Explanatory Statement must explain why not.
How consultation was carried out
Consultation on the direction was carried out in tandem with consultation on the CAO amendment. Consultation commenced on 8 December 2011 with the public announcement, via the frequently and widely accessed CASA website, of a proposal for a regulatory project. The principal target audience was the aviation sector generally, and more specifically the joint CASA/industry Standards Consultative Committee (SCC) and its specialist aircraft maintenance and certification subcommittees.
Specific consultation drafts of the CAO amendment and the direction instrument (the proposed legislative instruments) were made publicly available on 23 October 2012 through the same website and forum mechanisms, with the comment period closing on 6 November 2012.
Who was consulted?
The following organisations responded directly to the request for comments on the proposal:
- the Old Aeroplane Company Pty Ltd and the National Air Museum;
- Australian Warbirds Association Limited.
The nature of the issues raised in consultation
The main issue raised during consultation concerned CASA’s proposed use of aircraft weight as the delineating factor to decide upon the WHR whose maintainers within a COA holder’s organisation would require specific certification authorisation, and prescribed maintenance training additional to the standard training of CASR 1998 Part 66 licence holders.
An additional issue concerned the extent to which the CASA proposal adequately dealt with all airworthiness authority or type rating holders involved in carrying out WHR maintenance.
CASA response to the issues raised during consultation
CASA revised the legislative instruments and made them available for further comment in the period 22 January 2013 to 1 March 2013, using the same consultation mechanisms previously described. In response to comments received, the proposals were expanded to cover, not only warbirds, but also historic and replica aircraft. The legislative instruments were revised to specifically list relevant applicable and non-applicable aircraft/engine combinations of WHR covered by the proposals.
These new listings took into account that, although an aircraft may be large, it is not always necessarily so complex to maintain that additional maintenance training (over and above standard CASR 1998 Part 66 licence training) must be mandated for safety.
The industry responses to this second round of consultation assisted in finalising the drafts. They clarified the role of independent licensed aircraft maintenance engineers, ensuring that independent inspection providers were not affected by the legislative instruments. The Part 1 and Part 2 aircraft listings were also revised in light of comments received.
Decision to provide an opportunity for further consultation
After consultation closed, CASA produced a Civil Aviation Advisory Publication (CAAP) titled Maintenance of Warbird, Historic and Replica Aircraft, to provide guidance on the operation and effect of the CAO amendment (and a related direction, CASA 197/13, Maintenance of warbird and historic and replica aircraft (WHR) — directions and licence condition).
Between 25 July 2013 and 8 August 2013, the draft CAO amendment, the draft directions instrument and the draft CAAP were published on the CASA website to provide to industry with a further opportunity for consultation.
CASA received comments on the CAAP and as a result a special briefing was included in a CASA refresher course for Authorised Persons responsible for issuing certificates of airworthiness on WHR aircraft on behalf of the Australian Warbirds Association Limited.
In response to the further feedback, CASA revised the tables of WHR aircraft, including the addition of WHR aircraft not previously dealt with by the CAO amendment.
Appendix 2
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Civil Aviation Regulations 1988
Maintenance on warbird and historic and replica aircraft (WHR) — directions and licence condition
This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the legislative instrument
The purpose of this instrument is to place a person or organisation holding a certificate of approval under regulation 30 of the Civil Aviation Regulations 1988 for maintenance of aircraft, in a similar position to that of an approved maintenance organisation (an AMO) under the more recent Part 145 of the Civil Aviation Safety Regulations 1998, specifically for the maintenance of warbirds, and historic and replica aircraft — provided a generally similar range of safety conditions and requirements are met with respect to the training, qualifications, experience and authorisation of persons who carry out the maintenance. Under Part 145 of the Civil Aviation Safety Regulations 1998, AMOs already have the facility to train and authorise specialist maintainers. However, existing maintenance organisations who are not AMOs but who are certificate holders, have not been able, under those regulations, to have access to similar training, authorising and maintenance opportunities.
The direction complements the contemporaneous Civil Aviation Order (CAO) 104.0 Amendment Order 2013 (No. 1) which adds a new subsection 8 to CAO 104.0 setting out the specific conditions under which a certificate holder may carry out maintenance on those special kinds of aircraft.
Warbirds, and historic and replica aircraft, are aircraft which give rise to particular maintenance and safety issues for which standard aircraft maintenance engineer licence training does not cater. Additional special training, the acquisition of special skills, and the conduct of relevant maintenance in a structured organisational environment, are considered by CASA to be essential to the safety of operations in these aircraft. As such, the requirements of the direction call for relevant maintenance personnel to be provided with additional training and authorisation by the relevant maintenance organisations carrying out maintenance on these aircraft.
The direction restricts to lower level “unscheduled maintenance” the maintenance that may be carried out by an independent engineer who does not hold a certificate of approval to carry out maintenance. A range of safety requirements must be met to qualify for a certificate of approval. To this extent, the direction may engage the right to work under the International Covenant on Economic, Social and Cultural Rights (ICESCR). However, such a restriction is considered a necessary part of the aviation safety regulatory system. As a regulated sector, individuals who participate in the sector are deemed to have accepted certain reasonable and proportionate conditions, controls and restrictions where these are necessary to manage public safety risks and maintain the integrity of the aviation safety system.
Human rights implications
The direction is otherwise compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The instrument does not engage any of the applicable rights or freedoms.
Conclusion
This legislative instrument is compatible with human rights as it does not raise any human rights issues.
Civil Aviation Safety Authority