Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX137/21 – Part 121 – Single Pilot Aeroplane (MOPSC 10-13) Operations – Exemptions Instrument 2021
Purpose
The purpose of this instrument is to make an exemption in relation to Part 121 of the Civil Aviation Safety Regulations 1998 (CASR). This will allow an air transport operator to conduct VFR and IFR single-pilot operations, using single and multi-engine aeroplanes, with a maximum operational passenger seat configuration (MOPSC) of 10 to 13, under Part 135 of the CASR, provided that safety mitigation conditions are satisfied.
Background
Part 121 of the CASR, except Subpart 121.Z, applies to aircraft with a maximum take‑off weight (MTOW) greater than 8 618 kg, or a MOPSC of more than 9 (larger aeroplanes).
Part 135 of the CASR applies to aeroplanes with a MTOW less than or equal to 8 618 kg, and a MOPSC of up to 9 (smaller aeroplanes). In addition to many other differences from the Part 135 rules, Part 121 requires all flights to be conducted under the IFR (no VFR flights are permitted) and to have a minimum of 2 pilots. Part 121 has a considerably different set of rules relating to when an alternate aerodrome must be planned for a flight, and the flight crew training and checking requirements are considerably more prescriptive and specific.
Subpart 121.Z applies to single-engine aeroplanes with a MTOW less than or equal to 8 618 kg, and a MOPSC of up to 9. Under this Subpart, the applicable single-engine aeroplanes must be operated in accordance with the Part 135 rules with additional requirements. For example, IFR flights carrying more than 9 passengers must have 2 pilots, flights at night operating under the VFR are prohibited, flights conducted by day under the VFR must have an automatic engine monitoring system (IFR and night VFR flights must have such systems by virtue of the Part 135 prescribed single-engine aeroplane rules). A terrain awareness and warning system (TAWS)-Class A is required for turbine-powered aircraft and TAWS-Class A or B is required for piston-engine aircraft.
Air transport operations in multi-engine aeroplanes with a MOPSC of more than 9 operate under Part 121 which, in certain circumstances, requires a higher standard than Part 135.
CASR places Part 135 multi-engine aircraft with a MOPSC of more than 9 in Part 121 and Part 121 single-engine aircraft carrying more than 9 passengers in Part 135.
There are a significant number of aeroplanes with a type certificate allowing single-pilot operations with seating configurations between 9 and 14, however, Part 121 requires 2 pilots in these aeroplanes. With the addition of specific operator and aeroplane safety mitigators, the requirement to have a second pilot for these specific aeroplanes can be removed while preserving an acceptable level of aviation safety.
Legislation — exemptions
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and the safety of air navigation.
Subpart 11.F of CASR deals with exemptions. Under subregulation 11.160 (1), and for subsection 98 (5A) of 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 this is 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 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.).
Content of instrument
The exemption instrument takes the following form.
Section 1 — Name
This section names the instrument.
Section 2 — Duration
This section provides that the instrument commences on 2 December 2021 and is repealed at the end of 1 December 2024.
Section 3 — Definitions
This section provides definitions for the instrument. In particular, a relevant aeroplane means an aeroplane:
(a) to which subregulation 121.005 (1) or 121.005 (2) of Part 121 would apply were it not for this instrument; and
(b) that has a MOPSC of at least 10 but not more than 13; and
(c) that has a MTOW of no more than 8 618 kg; and
(d) that is certificated to be operated by a single pilot in accordance with the type certificate data sheet; and
(e) whose flight manual provides that the flight crew of the aeroplane may be constituted by a single pilot.
Section 4 — Application
This section states the exemption applies to a transitional operator of a relevant aeroplane, an expanded transitional operator of a relevant aeroplane, and a new operator of a relevant aeroplane. The definitions of these operators are provided in this section of the instrument. The instrument also applies to the pilot in command of a relevant aeroplane for these operators.
A transitional operator is, essentially, a pre-2 December 2021 holder of an Air Operator’s Certificate that authorised charter operations or regular public transport operations, or both kinds of operations, in a particular kind of relevant aeroplane.
An expanded transitional operator is a transitional operator who expands on their pre‑2 December 2021 operations to include an air transport operation that is equivalent to the operations conducted immediately before 2 December 2021 but in a type of relevant aeroplane that is not a similar type of aeroplane to that used before 2 December 2021; or an air transport operation that is not equivalent to the operations conducted immediately before 2 December 2021 but in the same type of relevant aeroplane as that used before 2 December 2021.
Section 5 — Exemptions – operators and pilots in command
Under this section, for the particular type of relevant aeroplane, when used in an operation that is equivalent to a relevant pre-21 December 2021 operation, a transitional operator (and the relevant pilot in command) is exempt from compliance with each provision of Part 121, and the Part 121 Manual of Standards (MOS) that would, but for the exemption instrument, apply to the transitional operator. A Note elaborates that the exemptions for a transitional operator and the pilot in command only extend in relation to the particular type of aeroplane, when used in an operation that is the same as, or equivalent to, the transitioning particular operation.
Under this section also, a new operator and an expanded transitional operator (and their pilots in command) are each exempt from compliance with each provision of Part 121, and the Part 121 MOS, that would, but for this instrument, apply to the operator.
The exemptions are subject to safety conditions.
Section 6 — Basic conditions
This section provides basic conditions, applicable to all of the foregoing operators. Thus, the relevant operator and pilot in command must comply with Part 135 of CASR and the Part 135 MOS, instead of Part 121 and the Part 121 MOS, as if Part 135 applied. In doing so, they must not take the benefit of an earlier specific Part 121 exemption instrument, but may take the benefit of an earlier specific analogous Part 135 exemption instrument.
Section 7 — Special condition in relation to GPWS
Under this section, if, immediately before 2 December 2021, a requirement to carry a specific Ground Proximity Warning System applied to a transitional operator’s, or an expanded transitional operator’s, type of relevant aeroplane, then they must continue to comply with that requirement as if it continued to apply until the end of 1 December 2023.
Section 8 — Application of the additional conditions set out in in Schedule 1
This section sets out the requirements for compliance with the additional conditions in Schedule 1. New operators are required to comply with the additional conditions on and from 2 December 2021, or from when they commence operating in accordance with the instrument. Transitional operators are required to comply with the additional conditions from the concessional date of 2 December 2022. This is subject to the transitional operator submitting to CASA before 2 June 2022, and CASA approving before 2 December 2022, proposed exposition changes, showing how the operator will comply with the conditions in Schedule 1 on and from 2 December 2022. An expanded transitional operator is required to comply with the additional conditions on and from 2 December 2021, or from when they commence operating the new type of aeroplane (for that aeroplane) or commence the new type of operation that is in accordance with the instrument.
Section 9 — When exemptions cease to have effect for a transitional operator
It is essential for aviation safety that transitional operators transition to compliance with the additional safety conditions set out in Schedule 1 in a timely way in accordance with the instrument. Therefore, under section 9, each exemption ceases to have effect for a transitional operator and the operator’s pilot in command on 2 June 2022, unless the operator has, before that date, submitted to CASA its proposed exposition changes showing how the operator will comply with the conditions mentioned in Schedule 1 on and from 2 December 2022.
In addition, each exemption ceases to have effect for a transitional operator and the operator’s pilot in command on 2 December 2022, unless the operator has, before that date, received from CASA a written notice that the operator’s exposition changes are approved.
Schedule 1 — Additional Conditions
This section sets out key safety requirements that apply to new operators and expanded transitional operators from the date they become a new or expanded operator. The additional safety requirements will also apply to transitional operators on and from the concessional date of 2 December 2023.
The additional conditions focus, in effect, on safety equipment additives (autopilot, TAWS, weather radar) that are required to ease the workload on the pilot in single-pilot operations. The operator is also required to ensure their fatigue risk management system considers single-pilot operations (compared to 2-pilot operations). A training needs analysis is to be conducted for the operator’s pilot in command and other operational safety-critical personnel to determine the human factors principles and non-technical skills requirements for single-pilot operations.
Operators must have an arrangement in place for all maintenance services to be provided by a Part 145 approved maintenance organisation.
Legislation Act 2003 (the LA)
The exemptions in this instrument are for the safe navigation and operation of aircraft and apply to classes of persons. The instrument is a legislative instrument under the Act and the LA and subject to registration, and tabling and disallowance in the Parliament, under sections 15G, and 38 and 42, of the LA.
Incorporation by Reference
In accordance with paragraph 15J (2) (c) of the LA and subsection 98 (5D) of the Act, the legislative instrument applies, adopts or incorporates matters contained in certain legislative instruments mentioned in the instrument, and also the following non-legislative instrument:
- exposition of an operator.
Subsection 98 (5D) of the Act permits a non-legislative instrument to be incorporated as in force or existing at a particular time or from time to time, including a non-legislative instrument that does not exist when the legislative instrument is made.
Each incorporated document is described below, together with the manner of incorporation and how it may be obtained.
Exposition of an operator
An exposition of an operator is a document, or suite of documents, that specifies the scope of the operations and activities conducted by the operator, and sets out the plans, processes, procedures, programs and systems implemented by the operator to comply with the civil aviation legislation.
An “exposition”, for an operator generally means the exposition as changed from time to time, in accordance with the definition of exposition in the CASR Dictionary.
Manuals are also incorporated as in force from time to time.
An exposition is not publicly or freely available. It is proprietary to the operator and will generally include commercial in confidence information about the operator’s business. The incorporated requirements of an exposition are at the operator-specific level and apply only to the operator and its personnel. Further, the operator is under obligations to make the exposition available to its personnel who have obligations under the document.
Consultation
Under section 16 of the Act, in performing its functions and exercising its powers, CASA must consult government, industrial, commercial 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 in order to draw on relevant expertise and involve persons likely to be affected by the proposals.
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. However, it is CASA’s policy to consult, where possible, 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.
For this instrument, from 16 July to 6 August 2021, CASA consulted the aviation community by providing a description of the exemption to the implementation Technical Working Group (TWG) of the Aviation Safety Advisory Panel (ASAP) for comment. ASAP is the primary advisory body through which CASA directs its engagement with industry and seeks input on current and future regulatory and associated policy approaches. CASA considered all TWG input in finalising the exemption instrument and advised the TWG of its responses and comments regarding all input from the TWG.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required because the instrument is covered by a standing agreement between CASA and OBPR under which a RIS is not required for exemptions (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 instrument is compatible with human rights: with its aviation safety focus, it promotes both the right to life, and the right to safe and healthy working conditions, and it does so in a way that is reasonable, necessary, and proportionate in the context of aviation safety.
Commencement and making
The instrument commences on 2 December 2021 and is repealed at the end of 1 December 2024.
The instrument 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 EX137/21 – Part 121 – Single Pilot Aeroplane (MOPSC 10-13) Operations – Exemptions Instrument 2021
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
Part 121 of CASR applies to larger aeroplanes used in Australian air transport operations. Part 121 provides a comprehensive code of operational safety rules for air transport operators using larger aeroplanes.
Part 121 is a part of the suite of CASA’s new Flight Operations Regulations (FOR). The FOR includes new Parts 91, 119, 121, 133, 135 and 138 of CASR, each of which commences on 2 December 2021.
The instrument will allow certain air transport operators with aeroplanes that seat 10 to 13 passengers and operated by a single pilot under the Civil Aviation Regulations 1988 to continue to operate those aeroplanes with a single pilot under the FOR by introducing certain safety mitigators.
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:
- the right to life under Article 6 of the International Covenant on Civil and Political Rights (the ICCPR)
- the right to safe and healthy working conditions under Article 7 of the International Covenant on Economic, Social and Cultural Rights (the ICESCR).
Right to life under the ICCPR
Right to safe and healthy working conditions under the ICESCR
Although the instrument contains an exemption from Part 121 of CASR, it does so in the context of substitute, and acceptable, conditions 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 aeroplanes.
Conclusion
This legislative instrument is compatible with human rights and to the extent that it may engage certain rights it does so in a way that is reasonable, necessary and proportionate in the interests of aviation safety.
Civil Aviation Safety Authority