Explanatory Statement
Civil Aviation Regulations 1988
Exemption — design of modification or repair
Legislation
Section 98 of the Civil Aviation Act 1988 empowers the Governor-General to make regulations.
Under subregulation 308 (1) of the Civil Aviation Regulations 1988 (CAR 1988), CASA may exempt aircraft, or persons in, on, or otherwise associated with the operation of the aircraft, from compliance with specified provisions of CAR 1988.
Paragraph 35 (2) (b) of CAR 1988 provides that if CASA or an authorised person is satisfied that a design conforms with any relevant design standard in respect of the type of aircraft or aircraft component to which the application relates, CASA or the authorised person must approve the design. An authorised person cannot approve a modification if he or she is not satisfied that the modification or repair complies with the design requirements that the aircraft was originally type certificated against.
CASA recognises that it is often not possible or practicable for an operator to demonstrate strict compliance with all applicable design requirements in the case of temporary modifications or repairs for ferry flights and overweight operations.
The exemption allows an authorised person to approve design for a one-off ferry flight, which does not fully comply with all the relevant design standards, subject to the conditions that the safety of air navigation is not compromised. It is a condition that an authorised person must take into account any relevant consideration relating to the safe operation of the intended flight before approving the design of temporary modifications or repairs. An authorised person may impose limitations or conditions on the approval or require that a specified thing be done to ensure the safety of air navigation. An authorised person must ensure that an aircraft with temporary modification or repair made to it is only operated in accordance with the requirements of a special flight permit issued under regulation 21.200 of the Civil Aviation Safety Regulations 1998.
Legislative Instrument Act
Under subparagraph 6 (d) (i) of the Legislative Instruments Act 2003 (the LIA), an instrument is a legislative instrument for section 5 of the LIA if it is declared to be a disallowable instrument under legislation in force before the commencement of the LIA. Subregulation 308 (4) of CAR 1988 declares an exemption to be a disallowable instrument. The Exemption is therefore a legislative instrument and as a legislative instrument, it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
Consultation under section 17 of the LIA has not been undertaken in this case. It is beneficial to industry.
The instrument commences on the day after it is registered and stops having effect at the end of 30 November 2009.
The exemption has been issued by a delegate of CASA, in accordance with subregulation 7 (1) of CAR 1988.
[Instrument number CASA EX01/08]
Overview
The Civil Aviation Regulations 1988 were enacted to regulate the design of modifications or repairs for aircraft, ensuring that these modifications adhere to specific safety standards. This regulation was introduced to address the practical difficulties faced by operators in complying with all applicable design requirements for temporary modifications or repairs, particularly for ferry flights and overweight operations. Empowered by Section 98 of the Civil Aviation Act 1988, the Civil Aviation Safety Authority (CASA) can grant exemptions under subregulation 308(1) of the Civil Aviation Regulations 1988, provided the safety of air navigation is not compromised. The policy objective is to facilitate safe temporary modifications or repairs for ferry flights, subject to conditions that ensure the continued safety of air navigation, while recognising the impracticality of strict compliance with all design standards in certain circumstances. The exemption is subject to disallowance in Parliament under the Legislative Instruments Act 2003 and is issued by a delegate of CASA.
Scope and Application
The Civil Aviation Regulations 1988 (CAR 1988) provide the framework under which the Civil Aviation Safety Authority (CASA) can issue exemptions from specified regulatory provisions to ensure the safety of air navigation remains uncompromised. This particular exemption, detailed in the explanatory statement, allows an authorised person to approve the design of a temporary modification or repair for a one-off ferry flight, even if it does not fully conform to all relevant design standards. This exemption is subject to stringent conditions, including the necessity to consider all relevant safety aspects for the intended flight and the imposition of any limitations or conditions deemed necessary by the authorised person to ensure the safety of air navigation. Furthermore, any aircraft featuring such temporary modifications or repairs must be operated in accordance with the requirements of a special flight permit under the Civil Aviation Safety Regulations 1998. This exemption applies to aircraft and associated persons, and its issuance follows the authority granted by the Civil Aviation Act 1988 and the legislative instruments outlined in the Legislative Instruments Act 2003.
Key Provisions
Section 98 of the Civil Aviation Act 1988 provides the authority for the Civil Aviation Safety Authority (CASA) to create regulations concerning civil aviation. Under subregulation 308(1) of the Civil Aviation Regulations 1988 (CAR 1988), CASA has the discretion to exempt aircraft or persons associated with the operation of an aircraft from certain provisions of CAR 1988. Specifically, paragraph 35(2)(b) of CAR 1988 mandates that CASA or an authorised person must approve a design if they are satisfied that it conforms to relevant design standards for the aircraft type or component. This approval is contingent upon the design meeting the criteria for the aircraft's original type certificate. However, CASA acknowledges that strict compliance with all design requirements might not be feasible or practical for temporary modifications or repairs needed for ferry flights or overweight operations.
The exemption under consideration allows an authorised person to approve designs for one-off ferry flights that do not fully meet all relevant design standards, provided that the safety of air navigation is not compromised. This approval hinges on the authorised person considering any pertinent factors related to the safe operation of the intended flight. They may impose limitations or conditions on the approval or require specific actions to ensure the safety of air navigation. It is crucial that any aircraft with temporary modifications or repairs is only operated under the conditions of a special flight permit issued under regulation 21.200 of the Civil Aviation Safety Regulations 1998.
In terms of legislative compliance, subparagraph 6(d)(i) of the Legislative Instruments Act 2003 (LIA) classifies the exemption as a disallowable instrument, making it subject to tabling and disallowance in Parliament under sections 38 and 42 of the LIA. The exemption, issued by a delegate of CASA in accordance with subregulation 7(1) of CAR 1988, is beneficial to industry and commences on the day after its registration, expiring on 30 November 2009. Notably, consultation under section 17 of the LIA has not been undertaken in this instance. The exemption, identified as CASA EX01/08, is intended to balance safety with practical operational needs in specific circumstances.