Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — validation flight check for AA
Legislation
Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides that the Governor‑General may make regulations for the Act and the safety of air navigation.
Validation flights for terminal instrument flight procedures
Under subregulation 173.095 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998), a certified designer must ensure that each terminal instrument flight procedure (TIFP) designed under the designer’s procedure design certificate (PDC) is validated by a CASA pilot in accordance with any applicable standards set out in the Manual of Standards Part 173 — Standards Applicable to Instrument Flight Procedure Design (the MOS).
Under paragraph (a) of the definition of CASA pilot in subregulation 173.095 (2) of CASR 1998, a CASA pilot means a pilot who is an officer of CASA. Under paragraph (b) of the definition, the CASA pilot must be someone who meets the standards in the MOS for carrying out a validation flight check (VFC).
Under paragraph 6.1.2.4 of the MOS, CASA must arrange for a CASA officer, who is a qualified validation pilot, to conduct the flight validation. Under paragraph 7.1.5.3 of the MOS, the type of aircraft to be used for the flight validation of a TIFP is to be approved by the CASA validation pilot. Under paragraph 6.1.2.5 of the MOS, the certified designer must provide an aircraft of a type approved by the CASA officer conducting the flight validation.
Paragraph 7.1.24.1 of the MOS sets out in detail the standard for the qualifications and experience of pilots in command of TIFP validation flights. The person must hold an air transport pilot’s licence (ATPL) and a command instrument rating endorsed for the TIFP in question. He or she must have multi-engine I.F.R. procedures experience. He or she must have completed a course in, and have a thorough knowledge of, the International Civil Aviation Organization Procedures for Air Navigation Services — Aircraft Operations (ICAO Doc 8168, Vols. I and II) (ICAO PANS‑OPS) procedures design principles and methods. ICAO PANS-OPS is the international standard for design of TIFP. He or she must hold CASA certificates certifying completion of CASA courses on flight validation, aerodrome lighting and visual approach slope guidance. He or she must also hold a CASA low flying permit and have completed a flight validation flight in the previous 12 months.
Exemption from CASR 1998
Under subregulation 11.160 (1) of CASR 1998, CASA may grant an exemption from compliance with a provision of CASR 1998. Under regulation 11.160 (3), 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), 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 World Wide Web. 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.
Airservices Australia
Airservices Australia (AA) has CASA’s approval to design TIFP.
CASA does not have readily available sufficient CASA officers with appropriate flying qualifications to carry out required TIFP VFCs.
CASA has, therefore, contracted with Radiola Aerospace Pty Ltd (Radiola) to carry out TIFP VFCs. CASA is satisfied that Radiola, and 3 specific, named, pilots engaged by it, have the competence and qualifications to carry out VFC in accordance with the requirements of the MOS.
Exemption and conditions
The instrument, therefore, exempts AA from the requirements of regulation 173.095 of CASR 1998, repeated in similar form in paragraph 6.1.2.4 of the MOS, that VFCs must be conducted by a pilot who is a CASA officer.
The instrument also exempts AA from the requirements of paragraph 6.1.2.5 and paragraph 7.1.5.3 of the MOS, that the aircraft to be provided by the designer (AA) must be approved by the CASA officer conducting the flight.
The other legislative standards and requirements for the validation flights remain unchanged.
The exemption is subject to safety conditions.
Validation of an AA TIFP may only be conducted in accordance with the agreement between CASA and Radiola, known as the Agreement Between Radiola Aerospace Pty Ltd and the Civil Aviation Safety Authority (CASA) Flight Revalidation of Instrument Flight Procedures and Aerodrome Lighting Systems Agreement No. 06/144-00.
An AA TIFP may only be validated by 1 or more of the named pilots under engagement with Radiola. Two notes reinforce first, that each validation pilot must meet the standards for a pilot set out in paragraph 7.1.24 of the MOS, mentioned above, and secondly, that under subregulation 173.095 (1) of CASR 1998, the validations must be in accordance with the applicable standards in the MOS.
To avoid any doubt about the effect of the exemption from the requirements of paragraph 6.1.2.5 of the MOS, that the aircraft must be provided by the designer and approved by the CASA officer conducting the flight, a condition requires that, for validation of an AA TIFP, AA must provide an aircraft of a type approved by CASA.
Further conditions require that AA must give CASA at least 7 days’ written notice of any proposed validation activity, including of any proposed use of a flight simulator for purposes related to a validation. AA and each validation pilot must also allow CASA officers to observe any validation activity on request.
Legislative Instruments Act
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. Regulation 11.215 of CASR 1998 declares an exemption of this kind to be a disallowable instrument. The exemption 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 not been undertaken in this case. The instrument is to enable AA to proceed with the validation of its TIFP in circumstances that CASA considers safe, namely using aviation experts who have entered into arrangements with CASA for the performance of this work.
The instrument commences on 25 February 2008, after it is registered, and ceases to have effect at the end of 2 years.
The exemption has been made by a delegate of CASA, in accordance with subregulation 7 (1) of CAR 1988.
[Instrument number CASA EX17/08]