CASA EX115/23 — Air Transport Operations (Enhanced Aircraft Equipment Requirements) Exemption 2023

Explanatory Statement

Civil Aviation Safety Regulations 1998

CASA EX115/23 — Air Transport Operations (Enhanced Aircraft Equipment Requirements) Exemption 2023

Purpose

The purpose of instrument CASA EX115/23 — Air Transport Operations (Enhanced Aircraft Equipment Requirements) Exemption 2023 (the instrument) is to provide a mechanism for Australian air transport operators to apply to the Civil Aviation Safety Authority (CASA) for short-term approval to operate aircraft that do not meet various aircraft equipment requirements, which commence on 2 December 2023. These requirements are set out in numerous provisions of the Part 121 Manual of Standards (the Part 121 MOS), the Part 133 Manual of Standards (the Part 133 MOS) and the Part 135 Manual of Standards (the Part 135 MOS) (the new equipment requirements). Further details of the new equipment requirements are set out in the “Legislation” section below.

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. Relevantly, the Governor-General has made the Civil Aviation Safety Regulations 1998 (CASR).

Part 121

Part 121 of CASR applies to aeroplanes with a maximum passenger seating capacity of more than 9 passengers, or a maximum take-off weight exceeding 8 618 kg, or both (larger aircraft). Operations of such aircraft for an Australian air transport operation are defined in the CASR Dictionary as a Part 121 operation.

Subregulation 121.460(1) of CASR provides that the Part 121 MOS may prescribe requirements relating to the fitment of equipment to an aeroplane, and the carrying of equipment on an aeroplane. Under subregulations 121.460(2) and (3), it is an offence of strict liability if a person is subject to a requirement of the Part 121 MOS and the requirement is not met.

Under subsection 11.21(2) of the Part 121 MOS, an aeroplane mentioned in subsection 11.21(3) must be fitted with an approved airborne collision avoidance system (ACAS). Under subsection 11.21(1), an approved ACAS is defined as an ACAS that is authorised in writing by CASA (or the national aviation authority of a recognised country) and meets the other requirements of that subsection.

Subsection 11.21(3) of the Part 121 MOS states that the aeroplane must be a turbine-engine aeroplane that (a) either: has a maximum take-off weight of more than 15 000 kg; or has a maximum passenger seating capacity of more than 30; or (b) for an aeroplane that was first registered on or after 1 January 2014: has a maximum take-off weight of between 5 700 kg and 15 000 kg; or has a maximum passenger seating capacity between 19 and 30.

Subsection 11.24(2) of the Part 121 MOS provides that a turbine-engine aeroplane must be fitted with a TAWS-Class A. TAWS-Class A is defined in subsection (1) as a terrain awareness and warning system that meets the requirements set out in that subsection.

Subsection 11.24(3) of the Part 121 MOS provides that a piston-engine aeroplane must be fitted with a TAWS-Class A or a TAWS-Class B. TAWS-Class B is defined in subsection (1) as a terrain awareness and warning system that meets the requirements set out in that subsection.

Subsection 11.26(1) of the Part 121 MOS provides that an aeroplane must be fitted with airborne weather radar equipment. Subsection (2) provides that subsection (1) does not apply to various types of aeroplanes, but subsection (2) is repealed at the end of 1 December 2023.

Section 11.35 of the Part 121 MOS, in summary, requires that aeroplanes that are fitted with data link communications between aircraft and ground-based systems must also have a data link recorder to record such communications.

Section 11.47 of the Part 121 MOS provides that an aeroplane must be fitted with or carry emergency locator transmitters (ELTs).

Section 11.48 of the Part 121 MOS provides for the number and kind of ELTs that aeroplanes must carry based on the maximum passenger seating capacity.

Part 133

Part 133 of CASR applies to rotorcraft. Operations of rotorcraft for an Australian air transport operation are defined in the CASR Dictionary as a Part 133 operation.

Regulation 133.360 of CASR provides that the Part 133 MOS may prescribe requirements relating to the fitment of equipment to a rotorcraft, and the carrying of equipment on a rotorcraft. Under subregulations 133.360(2) and (3), it is an offence of strict liability if a person is subject to a requirement of the Part 133 MOS and the requirement is not met.

Section 11.18 of the Part 133 MOS applies to a rotorcraft for a flight under the instrument flight rules, with a maximum passenger seating capacity of more than 9, that is conducting a passenger transport operation. It also applies to a flight under the instrument flight rules that is a medical transport operation. Subsection (4) provides that the rotorcraft must be fitted with an approved HTAWS from 2 December 2023 onwards. Approved HTAWS is defined in subsection (1) as a helicopter terrain awareness and warning system that meets the requirements of that subsection.

Section 11.41 of the Part 133 MOS, in summary, provides that a rotorcraft must be fitted with an ELT during flight. Further detail is set out as to the type and number of ELTs that must be fitted, depending on the maximum passenger capacity of the rotorcraft and the distance of the flight.

Section 11.45 of the Part 133 MOS is a transitional provision regarding ELTs. Relevantly, it provides that, from the beginning 2 December 2023, a rotorcraft must be fitted with, or carry, ELTs in accordance with Division 10 of Chapter 11 of the Part 133 MOS (which also contains section 11.41 of the Part 133 MOS).

Part 135

Part 135 of CASR applies to aeroplanes with a maximum passenger seating capacity of no more than 9 passengers and a maximum take-off weight of not more than 8 168 kg (smaller aircraft). Operations of such aircraft for an Australian air transport operation are defined in the CASR Dictionary as a Part 135 operation.

Regulation 135.370 of CASR provides that the Part 135 MOS may prescribe requirements relating to the fitment of equipment to an aeroplane, and the carrying of equipment on an aeroplane. Under subregulations 135.370(2) and (3), it is an offence of strict liability if a person is subject to a requirement of the Part 135 MOS and the requirement is not met.

Section 11.25 of the Part 135 MOS applies to an aeroplane for a flight under the instrument flight rules, or visual flight rules at night, if it is conducting a passenger transport operation or medical transport operation. In summary, with effect from 2 December 2023, it will provide that an aeroplane carrying 10 or more passengers must be fitted with a TAWS-Class A, TAWS-Class B or TAWS Class B+, depending on the aeroplane’s maximum take-off weight and engine type. TAWS Class B+ will be defined in section 11.19 of the Part 135 MOS as a TAWS-Class B that includes a colour terrain display that meets a set of additional requirements, as set out in the section.

Section 11.47 of the Part 135 MOS requires an aeroplane to be fitted with an ELT during flight. Further detail is set out as to the type and number of ELTs that must be fitted depending on the distance of the flight and other factors.

Section 11.51 of the Part 135 MOS is a transitional provision regarding ELTs. Relevantly, it provides that, from the beginning of 2 December 2023, an aeroplane must be fitted with, or carry, ELTs in accordance with Division 10 of Chapter 11 of the Part 135 MOS (which also contains section 11.47 of the Part 135 MOS).

Exemptions

Subpart 11.F of CASR. Subregulation 11.160(1) of CASR provides that, for subsection 98(5A) of the Act, CASA may grant an exemption from compliance with a provision of the regulations.

Under subregulation 11.160(2) of CASR, an exemption may be granted to a person or a class of persons, and may specify the class by reference to membership of a specified body or any other characteristic.

Under subregulation 11.160(3) of CASR, an exemption may be granted on application by a person or on CASA’s own initiative.

Under subregulation 11.170(3) of CASR, in deciding whether to grant an exemption, CASA must regard as paramount the preservation of at least an acceptable level of aviation safety. CASA has regard to the same test when deciding whether to grant an exemption on its own initiative.

Regulation 11.205 provides that 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.

Regulation 11.225 of CASR requires an exemption to be published on the internet. Under subregulation 11.230(1), the maximum duration of an exemption is 3 years.

Background

The new equipment requirements, and their commencement date of 2 December 2023, have been public knowledge for all Australian air transport operators since the Part 121 MOS, the Part 133 MOS and the Part 135 MOS were made and registered in December 2020. Despite this, numerous operators have contacted CASA to advise that they will be unable to meet the new equipment requirements in time for their commencement. The operators have given various reasons for being unable to comply, including supply chain delays, equipment shortages and delays in obtaining the services of Maintenance Repair Organisations (MROs) to complete the equipment modifications.

CASA further anticipates that, after 2 December 2023, additional operators will apply to CASA for relief from the new equipment requirements, especially in relation to the ELT requirements in the Part 133 MOS and the Part 135 MOS, as these requirements relate to smaller aeroplanes and helicopters.

If operators elected to cease using aircraft that were non-compliant under the new equipment requirements, this would have adverse impacts on regional and rural communities, given that operators of smaller aircraft are a greater proportion of the individual aircraft providing services to such communities.

CASA has therefore determined to put in place a mechanism to grant short-term relief from the new equipment requirements, for a 6-month period that expires on 2 June 2024 (the approval period).

Rather than granting individual exemptions to operators, CASA is making an instrument of general application, under which operators may apply to CASA to operate during the approval period without meeting certain specified new equipment requirements. The operators would have to demonstrate a genuine reason for being unable to comply with the new equipment requirements, or alternative methods of compliance. The exemption in the instrument would apply to an operator who has obtained an approval and would be subject to any conditions CASA imposes on the approval in the interests of aviation safety.

Overview of instrument

The instrument provides an exemption from the new equipment requirements to operators who have obtained an approval from CASA.

CASA may only grant an approval if the operator has demonstrated genuine difficulty in meeting the new equipment requirements, or alternative methods of compliance with the requirements.

An approval must specify which specific provisions of the new equipment requirements the operator cannot meet, and to which specific aircraft it applies. The exemption will apply only in respect of those specified provisions and aircraft.

It is a condition of the exemption that the operator comply with any condition imposed by CASA on the approval in the interests of aviation safety.

Documents incorporated by reference

This instrument incorporates the Part 121 MOS, the Part 133 MOS and the Part 135 MOS. All these documents are disallowable legislative instruments, incorporated as in force from time to time in accordance with subsection 14(1) of the Legislation Act 2003 (the LA). They are freely available on the website of the Federal Register of Legislation at https://www.legislation.gov.au/.

Content of instrument

Section 1 of the instrument sets out the name of the instrument.

Section 2 of the instrument sets out the duration of the instrument. The instrument commences on 2 December 2023 and is repealed at the end of 2 June 2024.

Section 3 sets out definitions for the instrument. Key definitions include:

• AMOC means alternative means of compliance.
• approved operator means an operator to whom CASA has issued an approval under section 5 of the instrument.
• exempt aircraft means an aircraft specified in an approval issued to an approved operator under section 5 of the instrument.
• relevant operation means a Part 121 operation, a Part 133 operation or a Part 135 operation conducted for an approved operator by the pilot in command of an exempt aircraft.
• relevant provision means a provision of the Part 121 MOS, Part 133 MOS or Part 135 MOS that is mentioned in the Table in Schedule 1 to the instrument.

Section 4 of the instrument provides that the instrument applies to an approved operator for a relevant operation, and the pilot in command of an exempt aircraft engaged in a relevant operation.

Section 5 of the instrument sets out the approval process. Subsection (1) provides that, if the requirements of subsection (2) are met, CASA may issue an approval to an operator, who is engaged in a Part 121 operation, Part 133 operation or Part 135 operation, to operate a specified aircraft that does not comply with a relevant provision.

In accordance with regulation 201.004 of CASR, a decision by CASA to refuse to approve a person under section 5 is subject to merits review by the Administrative Appeals Tribunal.

Subsection 5(2) provides that the requirements for an approval are that the operator has:

• demonstrated to CASA that it has been unable to comply with one or more of the relevant provisions due to supply chain challenges or scheduling of necessary maintenance; or
• on or before 2 December 2023, submitted to CASA an AMOC for one or more of the relevant provisions and that AMOC is under assessment by CASA; or
• otherwise demonstrated to CASA that it has made appropriate arrangements to achieve compliance with the relevant provisions in a timely fashion.

Subsection 5(3) provides that an approval must specify:

(a) the aircraft for which the approval is given; and

(b) any relevant provision with which the aircraft does not comply for the purposes of the approval.

Subsection 5(4) provides that CASA may impose any conditions on an approval that CASA considers appropriate in the interests of aviation safety.

Section 6 of the instrument provides that, when conducting a relevant operation using an exempt aircraft, the approved operator and pilot in command are exempt from regulations 121.460, 133.360 and 135.370 of CASR (as applicable), to the extent that they require compliance with a relevant provision specified in the approval issued to the operator under section 5.

Section 7 of the instrument provides that it is a condition of the exemption that a relevant operator comply with any condition imposed on the approval.

Schedule 1 to the instrument sets out a table of the relevant provisions, which is a list of the sections of the Part 121 MOS, the Part 133 MOS and the Part 135 MOS that contain the new equipment requirements, as described in the “Legislation” section above.

Legislation Act 2003

Paragraph 98(5A)(a) of the Act provides that the regulations may empower CASA to issue instruments in relation to matters affecting the safe navigation and operation, or the maintenance, of aircraft. Additionally, paragraph 98(5AA)(a) of the Act provides that an instrument issued under paragraph 98(5A)(a) is a legislative instrument if the instrument is expressed to apply in relation to a class of persons. The instrument exempts a class of persons from complying with the provisions in regulations 121.460, 133.360 and 135.370 of CASR. The instrument is, therefore, a legislative instrument, and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.

Sunsetting

Part 4 of Chapter 3 of the LA (the sunsetting provisions) does not apply to the instrument, because the instrument relates to aviation safety and is made under CASR (item 15 of the table in section 12 of the Legislation (Exemptions and Other Matters) Regulation 2015).

However, this instrument will be repealed at the end of 2 June 2024, which will occur before the sunsetting provisions would have repealed the instrument if they had applied. Any renewal of the instrument will be subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA. Therefore, the exemption from sunsetting does not affect parliamentary oversight of this instrument.

Consultation

Under section 16 of the Act, in performing its functions and exercising its powers, CASA must consult government, commercial, industrial, consumer and other relevant bodies and organisations insofar as CASA considers such consultation to be appropriate.

Under section 17 of the LA, before a legislative instrument is made, CASA must be satisfied that it has undertaken any consultation it considers appropriate and practicable to draw on relevant expertise and involve persons likely to be affected by the proposals.

CASA developed Part 121, Part 133 and Part 135 of CASR in consultation with the aviation community and the public over an extended period. The consultation included discussions of the new equipment requirements and their delayed commencement of 2 December 2023.

In the months leading up to the commencement of the new equipment requirements, CASA has received formal applications from 7 operators of larger aircraft for an extension of time to comply with the new equipment requirements due to delays in obtaining equipment and the MROs to install them. In addition, CASA has received many informal inquiries from operators of smaller aircraft and helicopters about obtaining temporary relief from the new equipment requirements due to equipment shortages. CASA has also made enquiries of equipment suppliers to verify the equipment shortages. For example, one supplier of ELTs has advised CASA that they have over 100 units on back order and do not expect to be able to fill all the orders until March 2024.

CASA is satisfied that no further consultation is appropriate or reasonably practicable for this instrument for section 17 of the LA.

Sector risk, economic and cost impact

Subsection 9A(1) of the Act states that, in exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration. Subsection 9A(3) of the Act states that, subject to subsection (1), in developing and promulgating aviation safety standards under paragraph 9(1)(c), CASA must:

(a) consider the economic and cost impact on individuals, businesses and the community of the standards; and

(b) take into account the differing risks associated with different industry sectors.

The cost impact of a standard refers to the direct cost (in the sense of price or expense) which a standard would cause individuals, businesses and the community to incur. The economic impact of a standard refers to the impact a standard would have on the production, distribution and use of wealth across the economy, at the level of the individual, relevant businesses in the aviation sector, and the community more broadly. The economic impact of a standard could also include the general financial impact of that standard on different industry sectors.

In terms of economic and cost impacts for subsection 9A(3) of the Act, the exemption instrument will temporarily relieve some operators from involved compliance costs, and more importantly, the significant costs to operations caused by having to cease operations until the new equipment requirements could be met.

Sector risks

The new equipment requirements impose higher standards of equipment to be fitted to aircraft. Accordingly, allowing some operators a delay in complying with the new equipment requirements presents a slight risk to aviation safety, in that the operators who gain an approval under the instrument will maintain the current level of aviation safety rather than progressing to the higher standard of safety imposed by the new equipment requirements. CASA considers that the short, 6-month time limit of the instrument, the criteria required to be satisfied to obtain an approval (including demonstrating alternative means of compliance with the requirements) and CASA’s ability to impose conditions on an approval will mitigate the aviation safety risks arising from the instrument.

Impact on categories of operations

The instrument is likely to have a beneficial effect on those operators who conduct Part 121 operations, Part 133 operations or Part 135 operations but have been unable to comply with the new equipment requirements by 2 December 2023, by allowing them to continue operating for a limited time while they source and install the required equipment.

Impact on regional and remote communities

The instrument is likely to have a beneficial effect on regional and remote communities, as many of the operators of smaller aircraft and helicopters who have been unable to meet the new equipment requirements are the primary source of aviation services in various regional and remote communities around Australia.

Office of Impact Analysis (OIA)

An Impact Analysis (IA) is not required for the instrument because it is covered by a standing agreement between CASA and the OIA under which an IA is not required for exemption instruments (OIA id: 14507).

Statement of Compatibility with Human Rights

The Statement of Compatibility with Human Rights at Attachment 1 has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Making and commencement

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

The instrument commences on 2 December 2023 and is repealed at the end of 2 June 2024.

Attachment 1

Statement of Compatibility with Human Rights

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

CASA EX115/23 — Air Transport Operations (Enhanced Aircraft Equipment Requirements) Exemption 2023

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

CASA EX115/23 — Air Transport Operations (Enhanced Aircraft Equipment Requirements) Exemption 2023 (the instrument) provides an exemption to Australian air transport operators, and pilots of their aircraft, who have applied to the Civil Aviation Safety Authority (CASA) for short-term approval to operate aircraft that do not meet various aircraft equipment requirements, which commence on 2 December 2023. These requirements are set out in numerous provisions of the Part 121 Manual of Standards, the Part 133 Manual of Standards and the Part 135 Manual of Standards (the new equipment requirements) and are listed in the Table in Schedule 1 to the instrument.

CASA may only grant an approval if the operator has demonstrated genuine difficulty in meeting the new equipment requirements, or alternative methods of compliance with the requirements.

An approval must specify which specific provisions of the new equipment requirements the operator cannot meet, and to which specific aircraft it applies. The exemption will apply only in respect of those specified provisions and aircraft.

It is a condition of the exemption that the operator comply with any condition imposed by CASA on the approval in the interests of aviation safety.

Human rights implications

The legislative instrument engages with the following human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011:

Although the instrument contains an exemption from various provisions of Part 121, Part 133 and Part 135 of the Civil Aviation Safety Regulations 1998, the exemption will be subject to substitute, and acceptable, conditions imposed by CASA in the interests of aviation safety. To the extent that the conditions are expected to play a critical part in the avoidance of accidents and incidents, the instrument may reasonably be said to support the right to life, and to contribute to safe and healthy working conditions on board the relevant aircraft.

Conclusion

This legislative instrument is compatible with human rights as it does not raise any human rights issues.

Civil Aviation Safety Authority