Explanatory Statement
Civil Aviation Regulations 1988
Exemption — maximum take-off weight requirements in aerial application operations
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations.
Aerial application operations under CASR Part 137
Subregulation 137.190 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998), states:
The pilot in command of an aeroplane engaged in an application operation must not commence a take-off if the aeroplane’s gross weight exceeds:
(a) the maximum gross weight shown in the aeroplane’s flight manual; or
(b) any maximum gross weight that:
(i) has been established for that type of aeroplane by a flight test supervised by CASA; and
(ii) is shown on a placard, approved by CASA and displayed in the aeroplane’s cockpit; or
(c) the maximum gross weight shown on the type certificate, or type certificate data sheet, that is issued for the aeroplane by the NAA of the State of Design (within the meaning given in Annex 8 to the Chicago Convention) of the aeroplane.
Under subregulation 137.190 (2) of CASR 1998, a pilot must calculate the take-off weight by a method that includes calculating the weight of:
(a) the crew and any equipment carried; and
(b) the aeroplane’s fuel and load.
Under the definitions in regulation 137.010 of CASR 1998, an application operation means, among other things, a flight to apply application material. Application material means, among other things, material such as fertilizer, baits and pesticides. Apply means to drop or spray the material onto the ground or water.
Under subregulation 235 (11) of the Civil Aviation Regulations 1988 (CAR 1988), operators and pilots in command of single engine aeroplanes engaged in private, or aerial work, operations, and having a certificate of airworthiness in the agricultural category or in the restricted category, and a permanently installed jettison system to allow the pilot in command to jettison in flight the contents of a hopper or vessel, have been granted an exemption (CASA EX22/2002) from compliance with the requirements of subregulation 235 (4) of CAR 1988. Subregulation 235 (4) requires weight at take‑off not to exceed the maximum take-off weight (MTOW) calculated under that regulation.
Under subregulation 11.160 (1) of CASR 1998, CASA may grant an exemption from compliance with a provision of CAR 1988 or CASR 1998. Under subregulation 11.160 (3), CASA may grant an exemption on its own initiative. In deciding whether to grant an exemption, CASA must regard as paramount the preservation of an acceptable level of safety.
Under subregulation 11.205 (1), CASA may impose conditions on an exemption if this is necessary in the interests of the safety of air navigation. Under regulation 11.210, it is an offence to fail to comply with a condition of an exemption.
Under regulation 11.225, an exemption must be published on the Internet. Under subregulation 11.230 (1), an exemption ceases on the day specified within it (but no longer than 3 years after its commencement), or if no day is specified, 3 years after commencement.
Under this exemption, a pilot in command of a specified aeroplane is only exempted from complying with the MTOW contained in a flight manual for the aeroplane, i.e. he or she will have to continue to observe all other limitations, procedures and instructions in the flight manual.
Pilots in command of aeroplanes engaged in application operations are also exempt from the weight limitations expressed in subregulations 137.190 (1) and (2) of CASR 1998 but subject to conditions.
Legislative Instruments Act
For subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from compliance with a provision of the regulations or the Civil Aviation Orders. An instrument issued under paragraph 98 (5A) (a) of the Act is a legislative instrument if the instrument is expressed to apply to a class of persons or aircraft. The instrument applies to a class of persons and is, therefore, legislative. As a legislative instrument, it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the Legislative Instruments Act 2003 (the LIA).
Consultation
Consultation under section 17 of the LIA has not been undertaken in this case. The Australian Transport Safety Bureau raised issues in relation to the loss of an aircraft. The instrument revokes CASA EX38/11 and remakes it, taking into consideration instrument CASA EX56/07 which ceased to exist at the end of 2009 by operation of law.
Human Rights Compatibility Statement
This legislative instrument does not engage any of the applicable rights or freedoms. It is compatible with human rights as it does not raise any human rights issues.
The exemption commences on the day after registration and stops having effect at the end of 31 December 2015.
The exemption 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 EX01/12]