Explanatory Statement
Civil Aviation Regulations 1988
Exemption — maintenance on limited category and experimental 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.
Subregulation 308 (1) of the Civil Aviation Regulations 1988 (CAR 1988) provides that CASA may exempt aircraft, or persons in, on, or otherwise associated with the operation of aircraft, from compliance with specified provisions of CAR 1988. Subregulation 308 (2) provides that before making an exemption, CASA must take into account any relevant considerations relating to the interests of safety. Subregulation 308 (3) provides that CASA may make an exemption subject to conditions specified in the exemption as being necessary in the interests of safety.
Under regulations 21.189 and 21.195A of the Civil Aviation Safety Regulations 1998, aircraft are not required to meet design standards in order to qualify for the issue of special certificates of airworthiness in the limited category or experimental certificates.
Regulation 35 of CAR 1988 requires that, unless the design of the modification or repair is specified by CASA in an Airworthiness Directive, or direction, or is specified in the aircraft’s approved maintenance data, the design of the modification or repair must be approved under that regulation. Paragraph 35 (2) (b) of CAR 1988 provides that approval under regulation 35 is only possible when the design conforms with the design standard for the aircraft.
Subregulation 21 (2) of CAR 1988 provides that, when no design standard is in force for an aircraft for which an application is made under regulation 35, CASA must issue a design standard.
Paragraphs 42W (2) (b) and 42W (4) (a) and (c) of CAR 1988 require a replacement component to be designed, manufactured and modified or repaired in compliance with a design standard. These provisions have created problems for limited category and experimental aircraft.
This sequence of requirements imposes an undue burden on:
(a) CASA or any authorised person asked to approve the design of a modification or repair to 1 of these aircraft for which no design standard applies; and
(b) CASA because of the obligation under subregulation 21 (2) of CAR 1988 to issue a design standard for 1 of these aircraft, even though no design standard is intended to apply; and
(c) persons who carry out maintenance on these aircraft, because unless the design of the modification or repair is specified by CASA in an Airworthiness Directive or direction, or is specified in the aircraft’s approved maintenance data, these persons are not permitted to modify or repair the aircraft until the design is approved under regulation 35 of CAR 1988; and
(d) registered operators because they must obtain approvals under regulation 35 of CAR 1988 before having their aircraft modified or repaired.
The instrument exempts persons carrying out maintenance on limited category or experimental aircraft from compliance with the requirements of regulation 42U and paragraphs 42W (2) (b), (4) (a) and (4) (c) of CAR 1988. In the interest of safety, the exemption is subject to conditions and limitations.
The exemption does not apply to:
(a) maintenance of aircraft instruments and equipment specifically required by CAR 1988 or the Civil Aviation Orders; or
(b) maintenance related to a condition of the special certificate of airworthiness or experimental certificate for the aircraft; or
(c) maintenance specified in an Airworthiness Directive or a direction issued by CASA applicable to the aircraft; or
(d) maintenance related to an instruction specified in the aircraft’s approved maintenance data.
The exemption is subject to the condition that if a modification or repair of an aircraft, or replacement of an aircraft component, is a major design change to the aircraft, as defined, the aircraft registered operator must as soon as possible provide CASA or an authorised person with details of the design change. Having considered the details, CASA or the authorised person may, if satisfied that the stated requirements are met, inform the registered operator that the modification or repair is acceptable. If they are not satisfied, CASA or the authorised person may issue a new special certificate of airworthiness or, if further flight testing is necessary, an experimental certificate, with appropriate conditions attached.
Legislative Instruments Act
Subregulation 308 (4) of CAR 1988 declares an exemption 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 exemption is a re-issue of CASA EX48/10 with changes made to clarify the intent of the previous exemption in relation to major design changes.
The instrument commences on the day after it is registered. It stops having effect at the end 31 January 2013.
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 EX11/11]