Explanatory Statement
Civil Aviation Regulations 1988
Civil Aviation Safety Regulations 1998
Exemption — conduct of aerial application (firefighting) operations by DC-10 aircraft
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and in the interests of the safety of air navigation.
Exemption from provisions of CASR 1998
Subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998) provides that CASA may grant an exemption from compliance with a provision of CASR 1998. Under regulation 11.160, CASA may grant an exemption on its own initiative.
Under subregulation 11.170 (3) of CASR 1998, 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 not to comply with a condition of an exemption.
Under regulation 11.125 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 its commencement.
Part 137 of CASR 1998 deals with aerial application operations. Aircraft used for aerial application operations, including fire fighting, must comply with its requirements unless exempted from doing so. Exemptions have been provided from the following provisions.
Regulation 137.025 of CASR 1998 provides that, for aerial application operations, an aircraft must conform to a type certificate or a type acceptance certificate in the normal, restricted or utility category. The aircraft has been issued with a transport category certificate of airworthiness. Under the exemption, the certificate of airworthiness and all certificates, manuals and other documents that relate to the safe operation of the aircraft must be sighted and verified before the operator is allowed to carry out operations.
Regulation 137.235 of CASR 1998 provides that an operator must not allow an aircraft to be used for an aerial application operation unless the pilot is authorised to do so. The pilots of an aircraft under regulation 137.235 of CASR 1998 are required to hold licences, agricultural pilot ratings and class endorsements issued under the Civil Aviation Regulations 1988 (CAR 1988). The flight crew hold qualifications issued in the United States of America that CASA considers sufficient to ensure the safe operation of the aircraft the subject of the exemption.
Regulation 137.240 (1) of CASR 1998 provides that an operator must not allow an aircraft to be used for an aerial application operation and the pilot in command must not commence such an operation unless the pilot holds a valid annual proficiency check. The proficiency check referred to is set out in regulation 137.240. The operator and pilots of the aircraft are exempted from compliance with those requirements on condition that the pilots satisfy whatever qualifications are required to enable them to carry out firefighting operations in the United States of America during the duration of the exemption.
Part 2 of Schedule 1 contains a flight condition which requires the aircraft to be flown in accordance with the 2 mentioned manuals as accepted by CASA.
Legislative Instruments Act
Subregulation 308 (4) of CAR 1988, and regulation 11.215 of CASR 1998, declare any exemption to which they apply to be a disallowable instrument. 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. 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 required by the operator to facilitate firefighting operations. A similar exemption would be issued to any operator who requested it and could meet equivalent safety conditions.
The instrument commences on the day of registration and stops having effect at the end of 31 March 2010.
The exemption has been made by a delegate of CASA appointed under subregulation 7 (1) of CAR 1988 and regulation 11.260 of CASR 1998.
[Instrument number CASA EX108/09]