Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — validation flight check
Legislation
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.
Validation flights for terminal instrument flight procedures
Under subregulation 173.095 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998), a certified designer must ensure that each terminal instrument flight procedure (TIFP) designed under the designer’s procedure design certificate (PDC) is validated by a CASA pilot in accordance with any applicable standards set out in the Manual of Standards Part 173 — Standards Applicable to the Provision of Instrument Flight Procedure Design (the MOS).
Under subregulation 173.095 (2) of CASR 1998, a CASA pilot means a pilot who is an officer of CASA and who meets the standards in the MOS for carrying out a validation flight check (VFC).
Under paragraph 6.1.2.4 of the MOS, CASA must arrange for a CASA officer who is a qualified validation pilot to conduct the flight validation. Under paragraph 7.1.5.3 of the MOS, the type of aircraft to be used for the flight validation of a TIFP, is to be approved by the CASA validation pilot. Under paragraph 6.1.2.5 of the MOS, the certified designer must provide an aircraft of a type approved by the CASA officer conducting the flight validation.
Paragraph 7.1.24.1 of the MOS sets out in detail the standard for the qualifications and experience of pilots in command of TIFP validation flights. The person must hold an air transport pilot’s licence (ATPL) and a command instrument rating endorsed for the TIFP in question. He or she must have multi-engine I.F.R. procedures experience. He or she must be qualified in the International Civil Aviation Organization Procedures for Air Navigation Services – Aircraft Operations (ICAO Doc 8168 Vol I & II) (ICAO PANS‑OPS) procedures design principles and methods. ICAO PANS-OPS is the international standard for design of TIFP. He or she must hold CASA certificates certifying completion of CASA courses on flight validation, aerodrome lighting and visual approach slope guidance. He or she must also hold a CASA low flying permit and have completed a flight validation flight in the previous 12 months.
Exemption from CASR 1998
Under subregulation 11.160 (1) of CSR 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.
Naverus Inc. (Naverus), based in Seattle in the United States of America, is an international aviation consulting corporation. It has CASA’s approval to design the Naverus TIFP known as Area Navigation (Required Navigation Performance — Authorisation Required) (an RNAV (RNP-AR)). The design criteria for these approaches are not currently published in PANS-OPS or in the MOS.
Qantas trial of RNAV (RNP-AR) in Australia
Qantas Airways Limited (Qantas) proposes to conduct a trial of the Naverus RNAV (RNP‑AR) TIFP using Boeing 737-800 aircraft. It has CASA’s approval to do this.
The TIFP must first undergo VFCs by a suitably qualified pilot who is a CASA employee. However, some of the MOS qualification and experience requirements for validation pilots do not specifically address familiarity with RNP-AR procedures. Development of suitable standards for pilots validating RNP-AR procedures, appropriate training of CASA pilots and amendment of the MOS is currently being considered by CASA. In the meantime, CASA is satisfied that Robert Hugh Kennedy (the validation pilot), an experienced air transport pilot licence holder, who is a former CASA validation pilot and a current employee of Naverus, has, subject to certain conditions, the appropriate qualifications and experience to conduct VFCs of RNP‑AR procedures.
Exemption and conditions
The instrument therefore exempts Naverus from the requirements of regulation 173.095 of CASR 1998, included in the MOS, which stipulate that the CASA pilot must be a CASA officer. Because a number of the MOS qualification and experience requirements in subsection 7.1.24 of the MOS for validation pilots do not specifically address familiarity with RNP-AR procedures, the instrument also exempts Naverus and, in effect, the validating pilot, from the requirements of the subsection. The other legislative standards and requirements for the validation flights must, however, be complied with.
The exemption is also subject to conditions. Only the Naverus RNAV (RNP-AR) TIFP may be validated and the validation pilot may conduct the validation. The validation pilot must comply with the validation requirements of the MOS and must also observe the Naverus protocols for validation of the TIFP which are acceptable to CASA. CASA must be informed of proposed validation activities at least 7 days before they occur and CASA officers must be permitted to observe them on request.
Several conditions arise from the exemption from subsection 7.1.24 of the MOS concerning the validation pilot qualifications and experience requirements. Thus, the validation pilot must hold a current ATPL and a current instrument rating acceptable to CASA. He must have multi-engine IFR procedures experience. He must have completed CASA courses on flight validation, aerodrome lighting and visual approach slope guidance. He must be authorised to engage in low flying by a relevant and current low flying permit under paragraph 157 (4) (b) of the Civil Aviation Regulations 1988 (CAR 1988). He must also have completed a flight validation flight in the previous 12 months.
These conditions are similar to requirements in subsection 7.1.24 of the MOS. However, reference to knowledge of ICAO PANS-OPS matters is not relevant to the TIFP in question and there is no existing TIFP endorsement for instrument ratings. Letters of competency from attendance at the relevant CASA courses may only be held by CASA employees. The validation pilot has, however, attended the courses.
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 in this case. The instrument is the renewal of a previous instrument that expires at the end 31 December 2007. The instrument is to enable Naverus to proceed with the validation of its RNAV (RNP-AR) TIFP in circumstances that CASA considers are safe.
The instrument commences on the day after it is registered and ceases to have effect at the end of 31 December 2009.
The exemption has been made by a delegate of CASA, in accordance with subregulation 7 (1) of CAR 1988.
[Instrument number CASA EX07/08]