CASA EX108/20 – EPC Requirements for ATOs Transitioning to the FER (Extensions of Time Due to COVID-19) – Exemption Amendment Instrument 2020 (No. 2)

Explanatory Statement

Civil Aviation Safety Regulations 1998

CASA EX108/20 – EPC Requirements for ATOs Transitioning to the FER (Extensions of Time Due to COVID-19) – Exemption Amendment Instrument 2020 (No. 2)

Purpose

The purpose of this instrument, CASA EX108/20 – EPC Requirements for ATOs Transitioning to the FER (Extensions of Time Due to COVID-19) – Exemption Amendment Instrument 2020 (No. 2) (CASA EX108/20), is to amend an existing exemption from certain provisions of Part 61 of the Civil Aviation Safety Regulations 1998 (CASR) to accommodate to continuing severe impacts from the effects of the COVID-19 pandemic.

The original exemption was a facilitative mechanism to allow former approved testing officers (ATOs) who had transitioned to the new (equivalent) status of flight examiner rating (FER) holder, to compete a required examiner proficiency check (EPC) according to a staggered timetable. However, for the last remaining cohort of some 50 transitioned FER holders, the social distancing rules required to be observed during the COVID-19 pandemic made completion of their EPC impracticable within the original timeframe.

Consequently, effective from 22 April 2020, CASA, under CASA EX69/20 – EPC Requirements for ATOs Transitioning to the FER (Extensions of Time Due to COVID‑19) – Exemption Amendment Instrument 2020 (No. 1) (CASA EX69/20), amended the original exemption instrument to extend the relevant dates by 3 months to new specific completion dates.

The EPCs are conducted by CASA flight test examiners (FTEs) and in the midst of the continuing COVID-19 pandemic, the FTEs have been unable to meet the demand for EPCs. This has meant that relevant FER holders have either already passed, or soon will pass their birthday-related deadline date for completion of their EPC. It has been necessary, therefore, to again extend the relevant dates by a further 3 months.

Legislation — exemptions

Subpart 11.F of CASR deals with exemptions. Under subregulation 11.160 (1), and for subsection 98 (5A) of the Civil Aviation Act 1988 (the Act), CASA may, by instrument, grant an exemption from a provision of CASR in relation to a matter mentioned in subsection 98 (5A). Subsection 98 (5A) matters are, in effect, those affecting the safety, airworthiness or design of aircraft.

Under subregulation 11.160 (2), an exemption may be granted to a person or a class of persons. Under subregulation 11.160 (3), CASA may grant an exemption on application, or on its own initiative. Under subregulation 11.170 (3), for an application for an exemption, CASA must regard as paramount the preservation of an acceptable level of safety.

For making a decision on its own initiative, CASA is guided by the requirement in subsection 9A (1) of the Act that in exercising its powers and functions CASA must regard the safety of air navigation as the most important consideration.

Under regulation 11.205, CASA may impose conditions on an exemption, if necessary in the interests of the safety of air navigation. Under regulation 11.210, it is a strict liability offence not to comply with the obligations imposed by a condition. Under regulation 11.225, CASA must, as soon as practicable, publish on the Internet details of all exemptions under Subpart 11.F.

Under subregulation 11.230 (1), an exemption (but not an exceptional circumstances exemption for regulation 11.185 about major emergencies) may remain in force for 3 years or for a shorter period specified in the instrument.

Under subregulation 11.230 (3), an exemption, in force in relation to a particular aircraft owned by a particular person, ceases to be in force when the aircraft ceases to be owned by that person. Under regulation 11.235, an exemption is not transferable (as between operators, aircraft etc.).

Legislation — CASR Part 61

Section 98 of the Act empowers the Governor-General to make regulations for the Act and the safety of air navigation.

The regulations in Part 61, which commenced on 1 September 2014, set out flight crew licensing requirements. (References below to provisions that commence with the numerals “61” are to Part 61.) Prior to 1 September 2014, flight tests and rating renewals for the various flight crew licences and ratings were conducted by CASA delegates known as ATOs.

Under regulation 202.261 of CASR 1998, a delegation, issued to a person before 1 September 2014, to give a permission to conduct a flight activity such as flight testing, was described as an old authorisation, for example, an ATO delegation.

Under regulation 202.261 of CASR 1998, a new authorisation means a flight crew licence, rating or endorsement granted under Part 61.

Under subregulation 202.263 (1) of CASR 1998, an old authorisation that was in force immediately before 1 September 2014, is continued in force on and after 1 September 2014, according to its terms. It is known as a continued authorisation.

Under subregulation 202.263 (2) of CASR 1998, Part 61 applies to a continued authorisation “as if it were the equivalent new authorisation”. The Part 61 equivalent to an ATO delegation is an FER.

Examiner proficiency checks

Under subregulation 61.1285 (1), the holder of an FER is authorised to exercise the privileges of the rating (or delegation) only if the holder has a valid EPC.

Under subregulation 61.1285 (2), the holder is taken to have a valid EPC during the following periods:

(a) the period from when the holder passes the flight test for the rating to the end of the 24th month after the month in which the holder passes the flight test;

(b) if:

 (i) the holder passes the flight test for a flight examiner endorsement; and

 (ii) the flight test is conducted more than 6 months after the holder passes the flight test for the rating;

 the period from when the holder passes the flight test for the endorsement to the end of the 24th month after the month in which the holder passes the flight test for the endorsement;

(c) if the holder successfully completes an EPC — the period from when the holder successfully completes the check to the end of the 24th month after the month in which the holder successfully completes the check;

(d) if:

 (i) the holder is taken to have a valid EPC under any of paragraphs (a) to (c) (the existing check); and

 (ii) within 3 months before the validity of the existing check expires, the holder successfully completes an EPC;

 the period from when the validity of the existing check expires to the end of the 24th month after the validity of the existing check expires.

Under subregulation 61.1285 (4), for paragraphs (2) (c) and (d), the holder successfully completes an EPC if:

(a) the EPC is conducted in an aircraft or an approved flight simulation training device for the proficiency check; and

(b) a person mentioned in subregulation (5) assesses the holder’s competency to conduct flight testing as meeting the standards mentioned in the Part 61 Manual of Standards for an FER; and

(c) the person endorses the holder’s licence document to the effect that the holder has completed the EPC on the date stated.

Under subregulation 61.1285 (5), for paragraph (4) (b), the persons are:

(a) CASA; and

(b) the holder of an approval under regulation 61.040 to conduct the proficiency check.

Background

The original exemption instrument (CASA EX70/18 – EPC requirements for ATOs transitioning to the FER – Exemption 2018 (CASA EX70/18)) extended the time within which certain FER holders, who have the privilege of conducting flight tests and proficiency checks, must themselves complete an EPC.

The FER holders were those persons who held a CASA delegation as ATOs and who were granted an FER under subregulation 202.272 (2) of CASR, to take effect on 1 September 2018. Subregulation 202.272 (2) was a transitional provision to enable the conversion of old authorisations, like ATO delegations, into new authorisations, like FERs, granted under Part 61 of CASR.

The instrument also applied to a small number of former ATO delegation holders who had been granted an earlier FER but for a set of privileges different from those granted under the FER that took effect on 1 September 2018.

CASA EX70/18 was designed to manage the transition of these FER holders by creating a regular cycle for completion of their EPCs. The transition was to be over a 2-year period that would have ended in August 2020.

A “calendar” spread or stagger mechanism was used in CASA EX70/18, matching an FER holder’s birthday month in an odd or even year with a designated date between 30 September 2018 and 31 August 2020, as the last date by which he or she must complete their EPC.

Thus, Schedule 1 of CASA EX70/18 contained a “calendar” whose effect was that for an FER holder whose birthday occurs during a month mentioned in the Table, the holder must complete an EPC by not later than a corresponding date depending on whether the holder’s year of birth was an odd or even number.

However, the social distancing rules and consequential aviation impacts due to the COVID-19 pandemic made adherence to that timeframe by the remaining cohort of some 50 previous ATOs very difficult to achieve. Effective from 22 April 2020, therefore, CASA EX69/20 provided these transitioned FER holders with an additional 3 months in which to schedule and complete their EPC. This was done by amending the calendar in Schedule 1 of CASA EX70/18. In simplified terms, the Table was amended so that for a birthday that occurred in the month of March, April, May, June, July, or August for a year of birth that was an even number (for example, 1970, 1972), the EPC must have been completed by not later than 3 months after the previously prescribed date.

Despite that extension, the ongoing COVID-19 epidemic has impacted on this plan much more than had originally been anticipated, not only in Victoria and New South Wales but across the country. The disruption from the pandemic, including border closures and the social and physical distancing rules imposed by Commonwealth, State and Territory governments has made it impossible for the CASA FTEs to meet the FER demand for EPCs in accordance with the amended calendar. CASA has decided, therefore, to extend the already extended EPC completion deadlines by a further 3 months.

In deciding on this further modification of the exemption for the remaining cohort of FER holders, and in determining the extended spread or stagger mechanism, aviation safety is the most important consideration. CASA is satisfied that, despite the further 3‑month delay, the proposal preserves a level of aviation safety that is acceptable in the specific context of the status and experience of the particular transitioning former ATOs, and the unavoidable circumstance of the impact of COVID-19.

The relevant candidates for the EPC are experienced pilots and the risk of further extending the timeframe for EPC completion is not considered significant.

Safety risks will be managed by desktop surveillance and monitoring of relevant FER holder activity through the daily flight test management report to CASA. Examiner standardisation or procedural issues that arise will be addressed by phone intervention by the CASA Flight Test Office. This regular practice will be targeted to focus on the remaining cohort of FER holders, as they complete the required EPC over the extended period.

The table below shows the effect of CASA EX108/20:

CASA EX108/20 is expressed to operate until it is repealed at the end of 28 February 2021, the final extended completion date for the last category of members of the cohort. Consequently, the end date of the original exemption, into which CASA EX108/20 will be inserted for compilation purposes, is also amended to be 28 February 2021.

Legislation Act 2003 (the LA)

As noted above, exemptions under Subpart 11.F of CASR 1998 are “for subsection 98 (5A)” of the Act, that is, for regulations which empower the issue of certain instruments, like exemptions, in relation to “(a) matters affecting the safe navigation and operation, or the maintenance, of aircraft”, and “(b) the airworthiness of, or design standards for, aircraft”.

The exemption is clearly one in relation to matters affecting the safe navigation and operation of aircraft. Under subsection 98 (5AA) of the Act, an exemption issued under paragraph 98 (5A) (a), for such matters, is a legislative instrument if expressed to apply in relation to a class of persons, a class of aircraft or a class of aeronautical products (as distinct from a particular person, aircraft or product).

The exemption applies to a class of persons (the particular FER holders) and is, therefore, a legislative instrument subject to registration, and tabling and disallowance in the Parliament, under sections 15G, and 38 and 42, of the LA.

Consultation

Exemptions from regulatory requirements are considered to be beneficial for those to whom they apply, who voluntarily elect to take advantage of them, and who comply with their conditions. It is, therefore, rarely necessary to engage in extensive public consultation on a proposed exemption. Nevertheless, it is CASA’s policy to consult in an appropriate way with those parts of the aviation industry most likely to avail themselves of, or be affected by, an exemption so that they may have the opportunity to comment on the possible or likely terms, scope and appropriateness of the exemption.

However, in this case, the exemption is are urgent, and CASA considers that the relevant state of affairs, as well as informal feedback, suggests that consultation would add little if anything to the proposed solution but would delay its promulgation to those who need to plan to take advantage of it.

In this case, therefore, CASA considers that no consultation is required because of the necessity to promulgate, as soon as possible, the fact of the exemption and the proposed extended stagger dates so that those wishing to gain the benefit of the exemption can plan accordingly within the contingencies of the current COVID-19 pandemic.

Office of Best Practice Regulation (OBPR)

A Regulation Impact Statement (RIS) is not required because the exemption instrument is covered by a standing agreement between CASA and OBPR under which a RIS is not required for an exemption (OBPR id: 14507).

Statement of Compatibility with Human Rights

The Statement in Appendix 1 is prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The exemption instrument is compatible with human rights, and, to the extent that it engages certain rights, it does so in a way that, in the context of the COVID-19 pandemic, as far as practicable, promotes rather than limits those rights.

Commencement and making

The exemption commences on the date it is registered and is repealed at the end of 28 February 2021.

The exemption has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.

Appendix 1

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011

CASA EX108/20 – EPC Requirements for ATOs Transitioning to the FER (Extensions of Time Due to COVID-19) – Exemption Amendment
Instrument 2020 (No. 2)

This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the legislative instrument

The purpose of this instrument, CASA EX108/20 – EPC Requirements for ATOs Transitioning to the FER (Extensions of Time Due to COVID-19) – Exemption Amendment Instrument 2020 (No. 2), is to amend an existing exemption from certain provisions of Part 61 of the Civil Aviation Safety Regulations 1998 to accommodate to continuing severe impacts from the effects of the COVID-19 pandemic.

The original exemption was a facilitative mechanism to allow former approved testing officers (ATOs) who had transitioned to the new (equivalent) status of flight examiner rating (FER) holder, to compete a required examiner proficiency check (EPC) according to a staggered timetable. However, for the last remaining cohort of some 50 transitioned FER holders, the social distancing rules required to be observed during the COVID-19 pandemic made completion of their EPC impracticable within the original timeframe.

Consequently, effective from 22 April 2020, CASA, under CASA EX69/20 – EPC Requirements for ATOs Transitioning to the FER (Extensions of Time Due to COVID‑19) – Exemption Amendment Instrument 2020 (No. 1), amended the original exemption instrument to extend the relevant dates by 3 months to new specific completion dates.

The EPCs are conducted by CASA flight test examiners (FTEs) and in the midst of the continuing COVID-19 pandemic, the FTEs have been unable to meet the demand for EPCs. This has meant that relevant FER holders have either already passed, or soon will pass their birthday-related deadline date for completion of their EPC. It has been necessary, therefore, to again extend the relevant dates by a further 3 months.

Human rights implications

The exemption instrument may engage the following human rights:

Right to life under the ICCPR

Right to safe and healthy working conditions under the ICESCR

Right to work under the ICESCR

The COVID-19 pandemic has given rise to the need to observe Australian Government social distancing rules to prevent people contracting or spreading the virus. These rules apply to all, including to protect the life, health and safety of personnel engaged in aviation operations and associated activities like training. At the same time, aviation safety requires pilots and others to adhere to certain regulatory requirements concerning, for example, EPCs.

It follows that if essential aviation services are to be safely continued, a careful and calculated balance has had to be struck between these competing objectives for key aviation personnel like flight examiners.

Because of its temporary, calibrated and conditional nature, the 3-month extension of time provided for in the exemption instrument is considered to achieve an appropriate, short-term balance.

A consequential effect of the careful balance described above is to protect the right to work of flight examiners who might otherwise have lost that right, for example, by being unable to complete their EPC within an original timetable made impracticable by the COVID-19 pandemic.

Human rights implications

The legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. To the extent that the instrument engages certain of these rights, it does so in a way that is reasonable, necessary and proportionate to ensure the safety of relevant aviation personnel during the COVID-19 pandemic, but also in a calculated and balanced way that does not undermine aviation safety.

Conclusion

This legislative instrument is compatible with human rights, and to the extent that it engages certain rights it does so in a way that, in the context of the COVID-19 pandemic, as far as practicable, promotes rather than limits those rights.

Civil Aviation Safety Authority