Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption —of component installers from CAR 42W (4) (b), (d) and (e)
Purpose
This instrument exempts persons installing in an aircraft aeronautical products which have undergone maintenance, from compliance with certain procedural safety requirements of subregulation 42W (4) the Civil Aviation Regulations 1988 (CAR 1988), provided the maintenance on the products has been carried out by an organisation approved under Part 145 of the Civil Aviation Safety Regulations 1998 (a Part 145 organisation). Such an organisation operates to procedural safety standards at least equivalent to those from which the installers are exempt. (Procedural safety refers to the “paper trail” of certifications which provide vital assurance that appropriate maintenance has been carried out by appropriately qualified persons.)
Background
When Part 145 of CASR 1998 was made, it was expected that maintenance organisations approved under Part 145 would concentrate exclusively on the maintenance of regular public transport aircraft (RPT aircraft) and their aeronautical products.
However, some Part 145 organisations are also holders of certificates of approval under regulation 30 of CAR 1988 for carrying out maintenance on non-RPT aircraft and their aircraft components. These organisations are, therefore, required to operate under 2 different procedural safety regimes which is unnecessary. Also, some Part 145 organisations may not be holders of certificates of approval under regulation 30 for carrying out maintenance on non-RPT aircraft and components but may wish to do so without having to create the unnecessary duplication mentioned above.
CASA has decided to address this issue in a phased way, beginning with aircraft components/aeronautical products. An appropriate exemption will create the means to achieve this. However, because of the greater complexities involved, it is considered that regulatory amendments will be required to achieve the same outcome with respect to maintenance of aircraft.
Legislation — CAR 1988
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.
Subregulation 42W (1) of CAR 1988 explains that regulation 42W sets out requirements to be complied with in relation to the installation of aircraft components in carrying out maintenance on an Australian aircraft in Australian territory.
Paragraph 42W (4) (b) of CAR 1988 provides that (subject to regulations 42Y and 42Z), a person must not install an aircraft component in an aircraft if the component, or another component incorporated in it, has had maintenance carried out, UNLESS completion of the maintenance was certified in accordance with regulation 42ZE or 42ZN.
Paragraph 42W (4) (d) provides that (subject to regulations 42Y and 42Z), a person must not install an aircraft component in an aircraft if the component was supplied by another person, UNLESS the supplier supplied an authorised release certificate with the component and for it.
Paragraph 42W (4) (e) provides that (subject to regulations 42Y and 42Z), a person must not install in an aircraft an aircraft component that includes a component if the included component was supplied by another person, UNLESS the supplier supplied an authorised release certificate with the included component and for it.
Regulation 42Y of CAR 1988 applies to certain time-lifed components with complete airworthiness history records, and where regulation 42Y applies, paragraph 42W (4) (b) (among others) does not apply.
Regulation 42Z applies to certain radiocommunications equipment in V.F.R. aircraft, and where regulation 42Z applies paragraph 42W (4) (d) (among others) does not apply.
Under regulation 42ZE of CAR 1988, completion of maintenance on aircraft in Australian territory must be certified in accordance with the requirements of CAR 1988. Similarly, under regulation 42ZN of CAR 1988, completion of maintenance on aircraft outside Australian territory must be certified in accordance with the requirements of CAR 1988.
Legislation — CASR 1998
On June 27 June 2011, Parts 42 and 145 of CASR 1998 came in force. These Parts include the continuing airworthiness requirements, including maintenance requirements, for aircraft and aeronautical products. The CASR Parts apply to the maintenance of aircraft operated under an air operator’s certificate (an AOC) issued, in effect, for regular public transport (RPT), and for the maintenance of aeronautical products of these aircraft. Aircraft and aeronautical products to which Parts 42 and 145 do not apply must be maintained in accordance with requirements of CAR 1988.
The effect of these CAR 1988 and CASR 1998 provisions, and their differing terminology and procedural requirements, is that a Part 145 organisation holding CASA approval to maintain the aeronautical products of RPT aircraft, and issue certificates of release to service and authorised release certificates for the products, may not maintain aircraft components or issue certificate of completion of maintenance for non-RPT aircraft. The exemption is designed to overcome this anomaly.
Legislation — exemptions
Subpart 11.F of CASR 1998, as amended from 27 June 2011 by the Civil Aviation and Civil Aviation Safety Amendment Regulations 2011 (No. 2), deals with exemptions.
Under subregulation 11.160 (1) of CASR 1998, and for subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from a provision of CAR 1988, CASR 1998 or a CAO in relation to a matter mentioned in subsection 98 (5A).
Under subregulation 11.160 (2) of CASR 1998, 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. 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 of CASR 1998, 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. 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 (but not an exceptional circumstances exemption for regulation 11.185 about major emergencies) 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.).
The exemption
The key feature of the exemption is that it allows a person to install an aircraft component (or a component incorporated in an aircraft component) on a non-RPT aircraft where maintenance on the component has been carried out by a Part 145 organisation. Without the exemption, maintenance carried out by the Part 145 organisation and the associated Part 145 documentation would not be sufficient to permit the person to lawfully install the component. The exemption makes the installation lawful as long as each of the conditions is met.
The specific technical details of the exemption are set out in Appendix 1.
Duration
The exemption is expressed to operate for 2 years ending on 31 March 2015. It is expected that before the exemption expires appropriate amendments will be made to CAR 1988 and CASR 1998 to make the exemption unnecessary.
Legislative Instruments Act 2003 (the LIA)
As noted above, exemptions under Subpart 11.F of CASR 1998 are “for subsection 98 (5A)” of the Act, that is, for regulations which empower the issue of certain instruments, like exemptions, in relation to “(a) matters affecting the safe navigation and operation, or the maintenance, of aircraft”, and “(b) the airworthiness of, or design standards for, aircraft”.
The exemption is clearly one in relation to matters affecting the safe navigation and operation of aircraft. Under subsection 98 (5AA) of the Act, an exemption issued under paragraph 98 (5A) (a), for such matters, is a legislative instrument if expressed to apply in relation to a class of persons, a class of aircraft or a class of aeronautical products (as distinct form a particular person, aircraft or product).
The exemption applies to a class of persons (installers) and is, therefore, a legislative instrument subject to registration, and tabling and disallowance in the Parliament, under sections 24, and 38 and 42, of the LIA.
Consultation
Details of the nature and extent of the consultation CASA considered appropriate for this instrument are set out in Appendix 2.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required because the proposal 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 3 is 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.
Commencement and making
The exemption commences on the day after registration and stops having effect at the end of 31 March 2015.
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 EX14/13]
Appendix 1
Details of exemption of component installers from some of CAR 42W (4)
1 Duration
Under this section, the exemption instrument commences on the day after registration, and stops having effect at the end of 31 March 2015 as if it had been repealed by another instrument.
2 Definitions
Under this section, some key terms are defined. Thus:
an AMO or approved maintenance organisation means a Part 145 organisation as defined in regulation 1.4 of CASR 1998 (the Dictionary).
an authorised release certificate, for an aeronautical product on which maintenance has been carried out by an AMO, means a certificate of release to service issued under Division 42.H.4 of CASR 1998 and in the approved form.
a certificate of release to service, for an aeronautical product on which maintenance has been carried out by an AMO, means the certificate of release to service issued under Division 42.H.4 of CASR 1998.
3 Application
Under this section, the instrument is expressed to apply to a person (an installer) to whom subregulation 42W (4) of CAR 1988 applies in relation to the installation of an aircraft component in an aircraft after maintenance has been carried out on the component.
4 Exemptions
Under this section, an installer is exempt from the requirements set out in paragraphs 42W (4) (b), 42W (4) (d) and 42W (4) (e) of CAR 1988.
5 Conditions
Under this section, the exemptions in section 4 are subject to the conditions mentioned in Schedule 1.
Schedule 1 Conditions
Schedule 1 sets out the conditions which must be complied with for an installer to obtain the benefit of the exemption.
1 Under this condition, the exemption applies only if maintenance was carried out on: the aircraft component; or on an aircraft component that is incorporated in another aircraft component; or on an aircraft component that is included in another aircraft component. (CASA considers that “incorporated” and “included” have the same meaning.)
2Under this condition, the maintenance must have been carried out by an approved maintenance organisation (the maintaining AMO) as if the component were an aeronautical product. This condition is necessary to resolve the differences in terminology between CAR 1988 and CASR1998.
3 Under this condition, for the exemption from paragraph 42W (4) (b) — the maintaining AMO must have issued a certificate of release to service for the component or the incorporated component in accordance with Subpart 42.H of CASR 1998, as if it were an aeronautical product.
4 Under this condition, for the exemption from paragraph 42W (4) (d) the maintaining AMO must have issued an authorised release certificate for the component as if it were an aeronautical product; and the supplier of the component must have given the certificate to the installer.
5 Under this condition, for the exemption from paragraph 42W (4) (e), the maintaining AMO must have issued an authorised release certificate for the included component as if it were an aeronautical product; and the supplier of the component must have given the certificate to the installer.
Appendix 2
Consultation under the Civil Aviation Act and the Legislative Instruments Act
CASA’s statutory consultation obligations are set out in the Act and the LIA.
Legislative provisions
Under section 16 of the Act, in the performance of its functions and the exercise of its powers, CASA must, where appropriate, consult with government, commercial, industrial, consumer and other relevant bodies and organisations (including ICAO and bodies representing the aviation industry).
Under subsection 17 (1) of the LIA, before making a legislative instrument, particularly where the proposed instrument is likely to have a direct, or a substantial indirect, effect on business; or to restrict competition, a rule-maker (like CASA) must be satisfied that any consultation that is considered by CASA to be appropriate and that is reasonably practicable to undertake, has been undertaken.
Under subsection 17 (2) of the LIA, in determining whether any consultation that was undertaken is appropriate, CASA may have regard to any relevant matter, including the extent to which the consultation:
(a) drew on the knowledge of persons having expertise in fields relevant to the proposed instrument; and
(b) ensured that persons likely to be affected by the proposed instrument had an adequate opportunity to comment on its proposed content.
Under subsection 17 (3) of the LIA, consultation could involve notification, either directly or by advertisement, of those who are likely to be affected by the proposed instrument. Such notification could invite submissions by a specified date or participation in public hearings.
Under subsection 18 (1) of the LIA, despite section17, the nature of an instrument may be such that consultation may be unnecessary or inappropriate.
Under subsection 18 (2) of the LIA, examples of when CASA may be satisfied that consultation is unnecessary or inappropriate include instruments that: are minor or machinery in nature and do not substantially alter existing arrangement; are urgent; concern Budget decisions; are for national security; have already been consulted upon; relate to employment; or relate to management and service in the ADF.
Under section 19 of the LIA, the fact that consultation does not occur does not affect the validity or enforceability of a legislative instrument.
Under paragraph 26 (1A) (d) of the LIA, if consultation was undertaken under section 17 of the LIA the explanatory statement must contain a description of the nature of that consultation.
Under paragraph 26 (1A) (e) of the LIA, if no such consultation was undertaken, the explanatory statement must explain why not.
How consultation was carried out
CASA considered that its normal public and industry consultation process should be followed for this instrument, that is publication of proposals on its website, involvement of the joint CASA/industry Standards Consultative Committee (SCC), receipt and analysis of comments received, and adjustment of its proposals, as appropriate for aviation safety, after taking all of the comments into account. CASA considers that written comments actually received represent an important source of evaluation and feedback from interested parties who may be affected by the proposals.
Consultation on the proposed instrument commenced on the 22 January 2013 with the public announcement, via the frequently and widely accessed CASA website, of a proposal to develop a legislative instrument to address the issue. The principal target audience was the interested public accessing the site, the aviation sector generally, and, more specifically, the membership of the SCC and its subcommittees.
Specific consultation drafts of the instrument were developed and made publicly available for comment on 25 March 2013 through the same website and forum mechanisms. The comment period closed on 8 April 2013.
Who responded?
The following organisations responded directly in writing to the proposal:
- Qantas Airways Limited
- Cobham Aviation Services
- An independent civil aviation consultant
- Pacific Avionics
- Australasia, ExecuJet Aviation Group.
Those responding were considered to have particular interest in, and knowledge of, the issues being addressed by the instrument and they were representative of persons in the aviation community likely to be affected by the proposals.
The nature of the issues raised in consultation
All of the organisations who responded to the proposals fully supported the intent of the proposed instrument. Two sought some clarification on the policy underpinning the instrument. CASA responded to them individually by providing clarification of the policy intent and they were both satisfied.
CASA response to the issues raised during consultation
The consultation process did not highlight any deficiency in the proposals so there was no need for changes to them.
Appendix 3
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Civil Aviation Safety Regulations 1998
Exemption of component installers from CAR 42W (4) (b), (d) and (e)
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 persons installing in an aircraft aeronautical products which have undergone maintenance, from compliance with certain procedural safety requirements of subregulation 42W (4) the Civil Aviation Regulations 1988 (CAR 1988), provided the maintenance has been carried out by an organisation approved under Part 145 of the Civil Aviation Safety Regulations 1998 (CASR 1998). When Part 145 was made, it was expected that these maintenance organisations would concentrate exclusively on the maintenance of regular public transport aircraft (RPT aircraft) and their aeronautical products. However, some Part 145 organisations are also holders of certificates of approval under regulation 30 of CAR 1988 for carrying out maintenance on non-RPT aircraft and their aircraft components. These organisations are, therefore, required to operate under 2 safety regimes which is unnecessary. Also, some Part 145 organisations may not be holders of certificates of approval under regulation 30 for carrying out maintenance on non-RPT aircraft and components but may wish to do so without the duplication mentioned above. CASA has decided to address this issue in a phased way, beginning with aircraft components/aeronautical products. An exemption achieves this. The exemption instrument is, therefore, entirely beneficial in its scope and operation.
Human rights implications
The exemptions in the legislative instrument are 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. The 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