Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemptions and direction — publishing requirements for terminal instrument flight procedures
Purpose
This instrument exempts design organisations certified under Part 173 of the Civil Aviation Safety Regulations 1998 (CASR) from the outdated publishing standards in the Manual of Standards (MOS) Part 173 — Standards Applicable to the Provision of Instrument Flight Procedure Design (the MOS).
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 CASR.
Subregulation 173.075 (1) of CASR requires that a certified designer must maintain an operations manual that meets the standards set out in the MOS. Paragraph 2.1.1.1 (r) of the MOS requires an operations manual to include a description of the procedures to be used to ensure that designs are completed in accordance with the drafting conventions contained in the MOS. Certified designer is defined in regulation 173.015 of CASR.
Paragraph 173.085 (1) (b) of CASR provides that a certified designer designing a terminal instrument flight procedure (TIFP) under the certified designer’s procedure design certificate must ensure that the procedure is designed in accordance with any applicable standards set out in the MOS. Paragraph 1.1.1.2 of the MOS requires the design of a TIFP to be in accordance with the requirements set out in section 8.9 of the MOS.
Subregulation 173.095 (1) of CASR provides that a certified designer designing a TIFP under the certified designer’s procedure design certificate is validated by a CASA pilot in accordance with any applicable standards set out in the MOS.
Paragraph 6.1.2 of the MOS prescribes standards for the validation of TIFPs. Within the paragraph, paragraph 6.1.2.3 requires an application for validation to include a draft copy of the TIFP prepared for publication in accordance with “Chapter 9” of the MOS. The reference to Chapter 9 is an error and is intended to refer to section 8.9 of the MOS.
Under subregulation 173.100 (1) of CASR, a certified designer must ensure that each TIFP designed under the designer’s procedure design certificate is given to an AIS provider for publication in the AIP, together with a certificate by the certified designer’s chief designer to the effect that the procedure is designed and validated in accordance with any applicable standards set out or referred to in ICAO Doc. 8168 (PANS-OPS) and the MOS. AIS provider and AIP are defined in CASR. Chief designer is defined in regulation 173.010 of CASR.
The chief designer for a certified designer’s organisation has several responsibilities to the certified designer that are prescribed in regulation 173.180 of CASR. Among these responsibilities, paragraph 173.180 (d) provides that a chief designer is responsible for issuing certificates for regulation 173.100.
Section 8.9 of the MOS sets out the publishing requirements for a TIFP. Relevantly, paragraph 8.9.2 requires use of prescribed text formats and paragraph 8.9.3 prescribes styles and formats to be followed when drawing a TIFP.
Part 175 of CASR deals with aeronautical information management. Relevantly, the holder of a Part 173 procedure design certificate is an “aeronautical data originator”. In producing a TIFP for publication by a Part 175 AIS provider, aeronautical data originators are required to comply with the publishing requirements in the “data product specification” given by an AIS provider. The scheme under Part 175 for aeronautical information management regulates the publishing standards for a TIFP.
Subpart 11.F of CASR provides for the granting of exemptions. Subregulation 11.160 (1) of CASR provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from 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.
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 for a person not to comply with a condition imposed on the person as a condition on an exemption.
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.
Regulation 173.375 of CASR empowers CASA to issue directions for a certified designer to amend its operations manual. CASA may issue such a direction if necessary in the interests of the safety of air navigation.
Background
The publishing requirements in paragraphs 8.9.2 and 8.9.3 of the MOS have been superseded by the scheme for the aeronautical information management in Part 175 of CASR. CASA has granted individual exemptions from the publishing requirements in the MOS to the small class of Part 173 certified designers. CASA is now standardising the exemptions in a single general exemption.
Instrument
Section 3 of the instrument grants an exemption to certified designers against several provisions of CASR, namely subregulations 173.075 (1), 173.095 (1) and 173.100 (1), and paragraph 173.085 (1) (b). The exemption is provided only to the extent that the provisions covered by the exemption require the certified designer to comply with the publishing standards in paragraphs 8.9.2 and 8.9.3 of the MOS.
In addition, section 3 of the instrument exempts the chief designer for a certified designer’s organisation from the responsibilities of the chief designer in regulation 173.180 to the extent that the chief designer’s performance of the responsibilities requires compliance with the publishing standards in paragraphs 8.9.2 and 8.9.3 of the MOS.
Consistent with subsection 13 (1) of the Legislation Act 2003 and section 10 of the Acts Interpretation Act 1901, the references to the paragraphs of the MOS are the paragraphs as in force from time to time.
The instrument does not apply, adopt or incorporate any other matters by reference.
The exemptions do not affect the obligations of a certified designer or a chief designer under the provisions covered by the exemption other than in relation to the publishing standards in paragraphs 8.9.2 and 8.9.3 of the MOS.
For regulation 11.205 of CASR, the exemptions are expressed to be subject to the condition in section 4. The condition requires a certified designer to comply with any written direction given by CASA for the purpose of ensuring that the certified designer complies with the direction in section 5.
For regulation 173.375 of CASR, section 5 of the instrument directs certified designers to amend their operations manual in relation to design work conducted in reliance on the exemption in section 3. It is expected that all design work will rely on the exemption since certified designers are now obliged to comply with a “data product specification” given to the certified designers by the AIS provider under Part 175 of CASR instead of the MOS requirements.
The direction requires certified designers to include in their operations manual a description of the processes and documents used to ensure that the chief designer and specified employees of the certified designer are notified of the requirements of applicable Part 175 data product specifications given to the certified designer by an AIS provider. The requirement relates to the procedures for notification of the product data specification, not the incorporation of the specification itself. The direction requires the certified designer to make such amendments within 28 days of being given a product data specification by an AIS provider.
The direction also requires certified designers to include in their operations manual copies of the instrument and this Explanatory Statement, as well as a copy of any other direction given to the certified designer under regulation 173.375. This material must be incorporated into the operations manual within 14 days of the commencement of the instrument.
Legislation Act 2003 (the LA)
Paragraph 98 (5A) (a) of the Act provides that CASA may 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 is expressed as exemptions in relation to classes of persons, namely, certified designers and the chief designer for certified designers.
In addition, subsection 8 (4) of the LA provides that an instrument is a legislative instrument if it determines the law or alters the content of the law, rather than determining particular cases in which the law is to apply or is not to apply. The direction in the instrument directs a class of persons, being certified designers, to amend their operations manuals in a manner that determines or alters the content of the law, rather than determining when the law is to apply or is not to apply.
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.
Consultation
Consultation under section 17 of the LA has not been undertaken in this case. The instrument is provided to remove an unnecessary burden on certified designers in relation to standards that have been superseded. This instrument has been issued to replace individual instruments issued at the request of the operator and is similar to those previously issued instruments that have been accepted by certified designers. In these circumstances, CASA is satisfied that no further consultation is appropriate or reasonably practicable for this instrument for section 17 of the LA.
CASA is reviewing the MOS to update it, which will result in the removal of the outdated formatting specifications and publishing standards.
Office of Best Practice Regulation (OBPR)
The instrument relieves regulatory burden on certified designers. In addition, the exemptions and direction are covered by a standing agreement between CASA and OBPR that means a Regulation Impact Statement is not required (OBPR 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. The instrument does not engage any of the applicable rights or freedoms, and is compatible with human rights, as it does not raise any human rights issues.
Making and commencement
The instrument has been made by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR.
The instrument commences on the day after registration and is repealed at the end of 31 August 2020.
[Instrument number CASA EX134/17]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemptions and direction — publishing requirements for
terminal instrument flight procedures
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
This instrument exempts design organisations certified under Part 173 of the Civil Aviation Safety Regulations 1998 from the outdated publishing standards in the Manual of Standards (MOS) Part 173 — Standards Applicable to the Provision of Instrument Flight Procedure Design, subject to a condition and a direction of an administrative nature.
Human rights implications
This legislative instrument does not engage any of the applicable rights or freedoms.
Conclusion
This legislative instrument is compatible with human rights as it does not raise any human rights issues.
Civil Aviation Safety Authority