CASA EX06/09 - Exemption - use of radio-navigation aids by Airservices Australia

Explanatory Statement

Civil Aviation Safety Regulations 1998

Exemption — use of radio-navigation aids by Airservices Australia

Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides that the Governor-General may make regulations for the Act and in the interests of the safety of air navigation.

Certified designers and radio-navigation aids

Under subregulation 173.015 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998), a certified designer is a person who is the holder of a procedure design certificate that is in force under Part 173 of CASR 1998.

Under subregulation 173.105 (1) of CASR 1998, a certified designer must ensure that a terminal instrument flight procedure designed under the designer’s procedure design certificate does not require the use of a ground-based radio-navigation aid other than one

that is operated and maintained by a person certificated to do so under Part

171 of CASR 1998.

Regulation 171.005 of CASR 1998, referring to the applicability of Part 171 of CASR 1998, states in subregulation (1) that Part 171 sets out the requirement for a person to be approved as a provider of a ground-based aeronautical telecommunication or radio‑navigation service; and the requirement for the operation and maintenance of those services; and certain administrative rules relating to CASA in its administration of this Part.

Subregulation 171.005 (2) of CASR 1988 provides that Part 171 does not apply to a person who is providing an aeronautical telecommunication or radio-navigation service in the course of his or her duties for the Defence Force, or to any aeronautical telecommunication or radio-navigation service provided by the Defence Force.

Thus, it is not legally possible for the Australian Defence Force (the ADF) to obtain certification under Part 171 of CASR 1998 in order for its ground-based radio‑navigation aids to be used by certified designers. However, that does not relieve a certified designer from the prohibition in subregulation 173.105 (1) of CASR 1998 from using ground-based radio-navigation aids that are not operated and maintained by certified persons.

Exemption from CASR 1998

Under subregulation 11.160 (1) of CASR 1998, CASA may grant an exemption from compliance with a provision of CASR 1998. Under regulation 11.160, CASA may grant an exemption of its own initiative. Under subregulation 11.170 (3), 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 of CASR 1998, an exemption must be published on the World Wide Web. Under subregulation 11.230 (1), an exemption ceases on the day specified within it (but no longer than 2 years after its commencement), or if no day is specified, 2 years after commencement.

Background

Airservices Australia (AA) is a certified designer under Part 173 of CASR 1998. In May 2008, CASA Audit 0811 of AA found cause to issue a Request for Corrective Action, (RCA 0811-03) for infringement of regulation 173.105 of CASR 1998.

As noted above, CASR 173.105 prohibits a certified designer from designing terminal instrument flight procedures that require the use of a ground-based radio-navigation aid operated and maintained by a person who is not certified to do so under CASR Part 171, for example, the ADF.

The audit found that a number of AA instrument flight procedures were designed to ADF aerodromes using ADF operated and maintained ground-based radio-navigation aids. Since the ADF does not, and legally cannot, hold a CASR Part 171 certificate, under CASR 173.105, AA flight procedures may not be designed to those aerodromes. The flight procedures in question where designed and deployed before CASR Part 171 and Part 173 were made. However, they were not taken into account in the drafting of those Parts.

It may have been thought that the non-application of CASR Part 171 to the ADF constituted some kind of legislative exemption of the ADF from the requirements of Part 171 and that the prohibition in regulation 173.105, therefore, did not apply to AA use of ADF ground-based radio-navigation aids. This is not the case and AA has requested an exemption from regulation 173.105 while the regulation is reviewed by CASA and AA.

Safety case

Information provided to CASA by AA indicates that there has not been, and would not be, any additional safety risk from use of ADF ground-based radio-navigation aids, as against those of a CASR Part 171 certified person. AA has indicated that the ADF facilities are provided with an equivalent level of safety. This is achieved by an equivalent standard for flight checking the calibration of the ground-based radio‑navigation aids, and by the inclusion of the facilities in the NOTAM system of information for air men and women. There is also a long history of safe operation of the ADF facilities.

On the other hand, withdrawal of the affected AA instrument approach procedures, because they were reliant on the ADF facilities, would significantly restrict IFR and RPT operations into many aerodromes.

CASA is satisfied that, for the purposes of issuing an exemption to AA for use of specific ADF facilities, the preservation of an acceptable level of safety is, and would be, maintained.

Exemption and conditions

The instrument, therefore, exempts AA from the requirements of regulation 173.105 of CASR 1998.

The exemption is also subject to conditions. Details of the exemption are set out in Attachment 1.

Legislative Instruments 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. Regulation 11.215 of CASR 1998 declares an exemption of this kind to be a disallowable instrument. The exemption is, therefore, a legislative instrument and 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 other than with AA. The instrument is to enable continued use of certain AA flight designs into certain aerodromes.

Office of Best Practice Regulation

The Office of Best Practice Regulation does not require preparation of a Regulation Impact Statement in this case because a preliminary assessment of business compliance costs in the context of the nature of the instrument indicates that it will have only a nil to low impact on business.

Commencement and making

The instrument commences on the day after it is registered and ceases to have effect at the end of 30 November 2010.

The exemption has been made by a delegate of CASA in accordance with subregulation 7 (1) of CAR 1988.

[Instrument number CASA EX06/09]

ATTACHMENT 1

Details of exemption

AA is exempt from compliance with regulation 173.105 of CASR 1998 to the extent mentioned in Schedule 1.

Schedule 1 provides that the exemption operates only to the extent that the ground-based radio-navigation aid used by AA is:

(a) operated and maintained by the Australian Defence Force; and

(b) identified and listed in an item of Table 1, and described for the item in columns 2, 3 and 4 of Table 1.

Table 1 is also included in Schedule 1 (see below). A series of relevant definitions is included in the instrument, and is attached to the Table below.

The exemption is subject to conditions mentioned in Schedule 2.

Schedule 2 provides that each ground-based radio-navigation aid mentioned in an item of Table 1 in Schedule 1 must be:

(a) used by AA as mentioned for the item in column 5 of Table 1; and

(b) flight checked by AA in accordance with the flight check period mentioned for the item in column 6 of Table 1.

Table 1, in Schedule 1, sets out the specific locations, identifications and uses of the relevant ground-based radio-navigation aids, as follows:

Table 1

In Table 1, terms are defined as follows:

DAP document  means the Departure and Approach Procedures document published by AA.

DME arrival means an instrument approach using distance measuring equipment.

 GP means glide path as used for vertical guidance in an ILS.

 ILS means instrument landing system.

LOC means localiser, as used for lateral guidance in an ILS.

middle marker means a radio aid used for position and altitude checking when flying an ILS.

NAVAID means a navigation aid.

NDB means non-directional beacon.

outer marker means a radio aid used for position and altitude checking when flying an ILS.

SID means a standard instrument departure published in the DAP document.

TACAN means a UHF tactical air navigation aid.

VOR means very high frequency (VHF) omni-directional radio range.