Explanatory Statement
Civil Aviation Regulations 1988
Civil Aviation Safety Regulations 1998
Exemption — agricultural rating (incendiary dropping at or above 500 feet)
Exemption — CASR Part 137 — (incendiary dropping above or below 500 feet)
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the safety of air navigation.
Legislation for exemption from CAR 1988
Under subregulation 308 (1) of the Civil Aviation Regulations 1988 (CAR 1988), CASA may exempt aircraft, or persons in, on, or otherwise associated with the operation of the aircraft, from compliance with specified provisions of CAR 1988. Under subregulation 308 (2) of CAR 1988, before making an exemption CASA must take into account any relevant considerations relating to the interests of safety.
Under subregulation 308 (3) of CAR 1988, CASA may make an exemption subject to any condition specified in the exemption as being necessary in the interests of safety. Under subregulations 308 (3A) and (3B), it is a strict liability offence to contravene a condition of an exemption that is being relied upon for an operation. Under subregulation 308 (4), an exemption is a disallowable instrument (and hence a legislative instrument).
Legislation for exemption from CASR 1998
Under subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998), CASA may grant an exemption from compliance with a provision of CASR 1998. Under regulation 11.160 of CASR 1998, 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) of CASR 1998, 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 internet. 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.
Dropping operations
Under paragraph 5.01 (2) (a) of CAR 1988, a flight crew rating is required for flying in agricultural operations. Under subregulation 2 (1) of CAR 1988, an agricultural operation is defined as the broadcasting of substances from an aircraft for agricultural purposes.
Under regulation 150 of CAR 1988, the pilot in command of an aircraft may not permit anything to be dropped from the aircraft. However, in the course of firefighting operations, matter may be dropped in accordance with directions issued by CASA. Under regulation 5 of CAR 1988, CASA may issue such directions in the form of Civil Aviation Orders (CAOs). CASA has issued relevant dropping directions in CAO 29.5. Under paragraph 4.11 of CAO 29.5, the pilot in command of a dropping operation must possess the qualifications set out in the Appendix. The Appendix requires that for the purpose of dropping incendiaries to initiate controlled burning, the pilot in command must hold a commercial pilot licence; and have 250 hours’ experience as pilot in command; and hold an agricultural rating.
Alternatively, the pilot in command may complete the training specified for low flying aerial stock mustering in paragraph 1 of Appendix I of CAO 29.10 (5 hours’ dual training, including low flying); and hold certification from an approved pilot for that training (under paragraph 1 of Appendix II of CAO 29.10).
Low flying
Under subregulation 157 (1) of CAR 1988, the pilot in command of an aircraft must not fly over a non-populous area at lower than 500 feet except with a CASA permit or in certain permitted circumstances.
Aerial application operations
Part 137 of CASR 1998 deals with aerial application operations other than rotorcraft. It is construed to cover the aerial application not only of water but also of incendiaries for controlled burning and other firefighting purposes.
Under subregulation 137.175 (1) of CASR 1998, an aeroplane may not be used for an application operation that involves firefighting unless the relevant emergency control authority (ECA) responsible for firefighting has yet to assume control of the firefighting, or, if it has assumed control of the firefighting, has asked the person to carry out the operation. The pilot is authorised to conduct the operation at the request of the ECA only if he or she has more than 500 hours as pilot in command in application operations.
Under regulation 137.235 of CASR 1998, an operator must not allow an aeroplane to be used for an application operation (including firefighting) unless the pilot in command is authorised to do so. An explanatory Note reminds readers that for this purpose, the pilot must hold a commercial pilot (aeroplane) licence or an air transport pilot (aeroplane) licence issued under regulation 5.09 of CAR1988; and an agricultural pilot (aeroplane) rating of grade 1 or 2, issued under regulation 5.14 of CAR 1988; and a single engine aeroplane class endorsement; and any special design feature endorsement required for the aeroplane, issued under regulation 5.23 of CAR 1988.
Background
Under instrument CASA EX27/08 (dated 21 May 2008), CASA has previously granted an exemption from Part 137 of CASR 1998 (and agricultural pilot rating requirements) to certain operators (and their pilots) for dropping incendiaries. This was a grandfathering provision to protect the position of operators who had been in the business of incendiary dropping before the requirements of Part 137 of CASR 1998 were imposed.
CASA considers that, provided alternative safety risk mitigators are in place, seasonal firefighting involving the dropping of incendiaries on behalf of an ECA from at or above 500 feet does not require the pilot in command or the aeroplane operator to satisfy the wide range of requirements mentioned above that arise from various legislative sources not directly related to the specific activity of such incendiary dropping.
Both Part 137 of CASR 1998 and CAO 29.5 require that a pilot must be trained in low flying before conducting any incendiary dropping operations. However, the dropping of incendiary devices is not always conducted at low level. Dropping incendiaries does not have the same risks as the aerial application of agricultural materials, including, for example, the fact that incendiaries operations do not require the same accuracy of delivery (a reason why low flying and low flying training is not required for safety purposes.)
Australian State and Territory fire authorities, through the National Aerial Firefighting Centre Ltd (NAFC), have asked CASA to review the regulatory regime around incendiary dropping operations.
Exemption
CASA has done so and resolved to issue various conditional exemptions to pilots and operators.
Thus, a pilot will be exempt from the requirement to have a flight crew rating (required for “agricultural operations”, but otherwise consequentially required by subparagraph 150 (2) (a) (iii) of CAR 1988 for dropping incendiaries).
The pilot will also be exempt from the requirements of paragraph 4.1 of CAO 29.10 to the extent that the direction under paragraph 4.11 of CAO 29.5, made under subregulation 150 (2) of CAR 1988, requires the pilot to comply with the following requirements of Appendix 1 for dropping incendiaries to initiate controlled burning:
(a) hold an agricultural pilot (aeroplane) rating or an agricultural pilot (helicopter) rating; or
(b) have completed training specified in paragraph 1 of Appendix I in CAO 29.10 and certification in accordance with paragraph 1 of Appendix II in CAO 29.10.
This pilot exemption applies only for incendiary dropping at or above 500 feet. The pilot must still have a commercial pilot licence and 250 hours as pilot in command of aeroplanes or helicopters, as appropriate.
The pilot will also be exempt from all of Part 137 of CASR 1998. The operator will also be exempt from Part 137 of CASR 1998, but only conditionally on having detailed operations manual procedures, acceptable to CASA, for the conduct of incendiary dropping operations. The conduct of incendiary dropping operations below 500 feet would require a CASA permit.
Details of the exemptions and the conditions are set out in Appendix 1.
Legislative Instruments Act
Under subregulation 308 (4) of CAR 1988, and under regulation 11.215 of CASR 1998, respectively, an exemption is declared 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 instrument 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 been undertaken with the NAFC. The instrument constitutes an adjustment to requirements for incendiary dropping operations for firefighting and beneficially exempts from certain requirements provided compensating safety conditions are met. A draft of the exemption instrument was provided to the joint CASA/industry Standards Consultative Committee (SCC), for comment if required. The SCC made no comment on the draft instrument.
Office of Best Practice Regulation (OBPR)
OBPR does not require a Regulation Impact Statement in this case because a preliminary assessment of business compliance costs, in the context of the nature of the instrument, indicates that it will have only a nil to low impact on business.
Commencement and making
The instrument commences on the day after it is registered. It stops having effect at the end of 31 January 2012.
The exemption has been made by the Director of Aviation Safety on behalf of CASA, under subsection 73 (2) of the Act.
[Instrument number CASA EX13/10]
Appendix 1
Details of the exemption instrument
Exemption — agricultural rating (incendiary dropping at or above 500 feet)
Exemption — CASR Part 137 (incendiary dropping above or below 500 feet
1 Duration
Under this section, the instrument:
(a) commences on the day after it is registered; and
(b) stops having effect at the end of 31 January 2012.
2 Saving
This instrument does not affect instrument CASA EX27/08.
3 Definitions
Under this section, words and phrases in the instrument are defined as follows:
controlled burning means the ignition of vegetation for firefighting or fire hazard reduction purposes.
emergency control authority means a State or Territory department or body with official responsibility for controlled burning.
incendiary dropping operation means an aircraft operation, authorised by the relevant emergency control authority, that is solely for 1 of the following:
(a) dropping incendiaries for controlled burning;
(b) training for such dropping.
operator means a person who is the holder of an air operator’s certificate authorising an aircraft to engage in dropping incendiaries to initiate controlled burning.
pilot means the pilot in command of an aircraft engaged in an incendiary dropping operation.
4 Application
Under this section, the instrument applies to each of the following in an incendiary dropping operation:
(a) the pilot (as defined);
(b) the operator (as defined).
5 Agricultural rating — pilot exemption at or above 500 feet only
Under this section, for an incendiary dropping operation at or above 500 feet, the pilot is exempt from compliance with:
(a) paragraph 5.01 (2) (a) of CAR 1988; and
(b) subparagraph 150 (2) (a) (iii) of CAR 1988 to the extent of the directions mentioned in Schedule 1.
6 CASR Part 137 — pilot exemption above or below 500 feet
Under this section, the pilot is exempt from compliance with Part 137 of CASR 1998.
7 CASR Part 137 — operator exemption above or below 500 feet
(1)Under this subsection, the operator is exempt from compliance with Part 137 of CASR 1998.
(2)Under this subsection, the exemption in subsection (1) is subject to the condition that the operator’s operations manual must have relevant procedures for the conduct of incendiary dropping operations, including for low flying, if applicable.
A Note indicates that a low flying permit may be required.
(3)Under this subsection, the procedures mentioned in subsection (2) must be acceptable to CASA.
Schedule 1 Exemption from agricultural rating See paragraph 5 (b)
Schedule 1 sets out the extent of the exemption given to the pilot.
Thus, the pilot is exempt from subparagraph 150 (2) (a) (iii) of CAR 1988 to the extent that the direction under paragraph 4.11 of CAO 29.5, made under subregulation 150 (2), requires the pilot to comply with the following requirements of Appendix 1 for dropping incendiaries to initiate controlled burning, namely, that he or she must hold an agricultural pilot (aeroplane) rating or an agricultural pilot (helicopter) rating; or that he or she must have completed training specified in paragraph 1 of Appendix I in CAO 29.10 and certification in accordance with paragraph 1 of Appendix II in CAO 29.10.
A Note emphasises that the pilot exemption from subparagraph 150 (2) (a) (iii) of CAR 1988 applies for incendiary dropping at or above 500 feet only, and the pilot must still have a commercial pilot licence and 250 hours as pilot in command of aeroplanes or helicopters, as appropriate.