CASA EX23/10 – Exemption – from provisions in Part 173 of CASR 1998 – Jeppesen Sanderson Inc.

Explanatory Statement

Civil Aviation Safety Regulations 1998

Exemption — from provisions in Part 173 of CASR 1998 — Jeppesen Sanderson Inc.

Legislation

Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides that the Governor-General may make regulations for the Act and in the interests of the safety of air navigation.

Terminal instrument flight procedure design

Under subregulation 173.035 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998), it is an offence for a person to carry out design work on a terminal instrument flight procedure (a TIFP) for use by an Australian aircraft operating under the Instrument Flight Rules (IFR), or for use by a foreign aircraft operating under the IFR in Australian territory, unless the person is a certified designer authorised by a procedure design certificate to design such a TIFP.

Under subregulation 173.045 (1) of CASR 1998, a person must apply to CASA for the grant of a procedure design certificate. Under regulation 173.050, the applicant must be able to show that if a procedure design certificate were granted, he or she would be able to comply with the requirements that certified designers must comply with (the criteria). Under regulation 173.350, decisions on applications must be made within 6 months of receipt unless the time is extended by CASA’s requests for further information.

Under subregulation 173.335 (1) of CASR 1998, CASA must grant the certificate if the applicant meets the criteria, otherwise complies with the requirements of CASR 1998 and the granting of the certificate would not be likely to have an adverse effect on the safety of air navigation. Under regulation 173.340, in deciding whether any such adverse effect would be likely, CASA may take various matters into account (for example, the applicant’s record, experience and knowledge). Under regulation 173.345, CASA may grant a procedure design certificate subject to conditions necessary in the interests of the safety of air navigation.

Under subregulation 173.065 (1) of CASR 1998, a procedure design certificate comes into force on the date stated in it and remains in force unless it is cancelled. Under subregulation 173.085 (1), a certified designer must ensure that a TIFP designed under his or her procedure design certificate is designed in accordance with the standards in the relevant CASA Manual of Standards (the MOS) and also in accordance with the standards promulgated by the International Civil Aviation Organization (ICAO) in ICAO Doc 8168 (PANS-OPS).

Under regulation 173.090, a certified designer must have verification procedures involving 2 qualified designers independently checking the design of each TIFP designed under the certificate. For this purpose, a qualified designer means the holder, or the employee of the holder, of a procedure design certificate who has successfully completed an approved course of training in the methods and practices contained in ICAO Doc 8168 (PANS-OPS).

Under subregulation 173.100 (1), a certified designer must ensure that each TIFP is given to the Aeronautical Information Service (the AIS) for publication in the Aeronautical Information Publication (the AIP) together with a certificate by the chief designer certifying that the TIFP is designed and validated in accordance with the applicable standards set out in ICAO Doc 8168 (PANS-OPS).

Exemptions 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 11.165, a person may apply for an exemption.

Under subregulation 11.170 (3) of CASR 1998, 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 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.

Jeppesen Sanderson Inc.

Jeppesen Sanderson Inc. (Jeppesen), headquartered in Englewood, Colorado, USA, is an experienced international consulting corporation which, among other things, uses it facilities in Atlanta, Georgia, USA, to design terminal instrument flight procedures for use in North American and other airspace.

Procedure Design Certificate — listed TIFP

Based on this, and the expertise of relevant Jeppesen design personnel, and CASA’s own inspection of facilities and operations, CASA has decided to issue Jeppesen with a procedure design certificate to authorise 2 categories of TIFP design.

The first category is for the design of a standard range of TIFPs (listed TIFP) whose design criteria are provided for in CASR Part 173 and the MOS because they are based on conventional design criteria found in ICAO Doc 8168 (PANS-OPS). These TIFP are:

(a) Non-precision Approach (Ground-based); and

(b) Non-precision Approach (RNAV); and

(c) Precision Approach (Ground-based); and

(d) Precision Approach (RNAV); and

(e) Approach with Vertical Guidance (APV); and

(f) Departure; and

(g) Helicopter (Off-shore) – Airborne Radar; and

(h) Helicopter (Off-shore) – Non-directional Beacons (NDB).

Procedure Design Certificate — RNP-AR

The second category of TIFP for which Jeppesen will be authorised is Required Navigation Performance — Authorisation Required (RNP-AR).

This is available because the design criteria in ICAO Doc 8168 (PANS-OPS), on which CASR Part 173 and the MOS are based, have been supplemented by new area navigation procedures known as RNP-AR and based on ICAO Doc 9905 (RNP-AR Procedure Design Manual). However, this has not yet been specifically mentioned in CASR Part 173 or in the MOS.

RNP-AR TIFP accommodate the use of advanced navigation capabilities available on modern transport aircraft, such as the Boeing 737-800, and in appropriate circumstances for properly equipped aircraft, provides substantially increased safety over procedures designed using conventional criteria of the kind found in ICAO Doc 8168 (PANS-OPS).

Safety evaluation

The Federal Aviation Administration of the United States of America (FAA) has issued a number of documents that enable the design of RNP-AR TIFP. The FAA criteria are designated Special Aircrew, Aircraft and Authorization Required procedures. This has led to FAA Order 8250.52 which makes advanced RNP-AR approach design criteria available in the public domain in the USA. ICAO, through its Instrument Flight Procedures Panel, has developed similar design criteria which harmonises with the FAA Order 8250.52, in the form of ICAO Doc 9905 (RNP-AR Procedure Design Manual).

CASA has concluded that the use of ICAO Doc 9905 (RNP-AR Procedure Design Manual) design criteria specifically for RNP-AR TIFP in Australia would preserve a level of aviation safety that was at least comparable to that which would be provided by use of ICAO Doc 8168 (PANS-OPS). CASA also concluded that the level of safety was at least acceptable to it.

Exemption required

Jeppesen plans to design conventional TIFP (the listed TIFP) based on ICAO Doc 8168 (PANS-OPS).

However, in order to design RNP-AR TIFP based on ICAO Doc 9905 (RNP-AR Procedure Design Manual), rather than ICAO Doc 8168 (PANS-OPS), it is necessary to exempt the organisation, when designing RNP-AR TIFP, from the particular requirements in CASR Part 173 and the MOS which deal specifically with ICAO Doc 8168 (PANS-OPS).

Procedure Design Certificate and Chief Designer approval

On the basis of this exemption, Jeppesen is eligible to be granted a procedure design certificate covering both the listed TIFP and RNP-AR.

On the basis of this exemption, it is also possible for CASA, after assessment of their respective qualifications and experience, to approve if appropriate Jeppesen’s nominated Chief Designer and acting Chief Designer.

Exemption — for the Jeppesen application

The new exemption instrument, therefore, exempts Jeppesen, as an applicant for a procedure design certificate, from compliance with regulation 173.050 of CASR 1998. These requirements are essentially that the applicant must demonstrate the capacity to meet the requirements of Division 173.B.2 of CASR 1998. However, as Jeppesen will be exempted from some of these for RNP-AR design purposes, exemption from this threshold requirement for the application is also required.

Exemption — from requirements to be complied with for designing

The new exemption instrument also exempts Jeppesen, for the purpose of RNP-AR design work, from compliance with those aspects of CASR 1998 and the related MOS that refer to ICAO Doc 8168 (PANS-OPS). However, this does not extend to exemption from the requirements for qualified designers within the meaning of regulation 173.090 of CASR 1998. Designers working on RNP-AR must also be qualified designers for ICAO Doc 8168 (PANS‑OPS) purposes. RNP-AR is an advanced design and may only be designed by those already experienced in more conventional designing under ICAO Doc 8168 (PANS-OPS).

RNP-AR is an advanced procedure that is not included in the TIFP listed in the MOS. The instrument, therefore, also exempts Jeppesen from compliance with those aspects of the MOS that refer to the listed TIFPs rather than RNP-AR.

Exemption — from drafting conventions for listed TIFP and RNP-AR under the MOS

The instrument also exempts Jeppesen from the requirement that designs (listed TIFP and RNP-AR) must be designed in accordance with the drafting conventions in Section 8.9 of the MOS. This Section relates to the text format in which designs are to be provided to AIS for publication in the AIP. New drafting conventions have been agreed between Jeppesen and the AIS and, therefore, the exemption is required to enable these to be adopted.

Conditions — RNP-AR

The exemption made by the instrument in respect of RNP-AR is subject to conditions. For example, Jeppesen must comply with the relevant provisions of Part 173 of CASR 1998 and the MOS from which it is not exempt. Jeppesen may design only in accordance with the Jeppesen operations manual over which CASA has directive control. The Jeppesen safety management system must cover compliance with the safety standards in the design criteria. Responsibility for maintaining an RNP-AR TIFP may not be transferred without CASA’s written approval. Jeppesen must permit inspectors to exercise their powers under CASR 1998.

Conditions — drafting conventions for listed TIFP and RNP-AR under the MOS

Exemption from the MOS requirement to use specified drafting conventions is subject to the condition that only those drafting conventions agreed with the AIS may be used in substitution for the others to which the exemption applies.

Details of exemption and conditions

Further details of the exemption and relevant conditions are set out in Appendix 1.

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 has been applied for by an individual organisation and is to enable Jeppesen to design TIFP for use by Australian and foreign aircraft operating under the IFR in Australian territory.

Commencement and making

The instrument commences on the day after it is registered and stops having effect at the end of 31 March 2012.

The exemption has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Civil Aviation Act 1988.

[Instrument number CASA EX23/10]

Appendix 1

Details of Exemption — Jeppesen Sanderson Inc.

1 Duration

 Under this section, the exemption commences on the day after it is registered and stops having effect at the end of 31 March 2012.

2 Definition — Acting Chief Designer

 Under this section, a reference to Chief Designer includes a reference to a person, approved by CASA and appointed by Jeppesen to act as, and acting as, the Chief Designer.

3 Application

 Under this section, the exemption applies to Jeppesen and its Chief Designer for carrying out design work on Required Navigation Performance — Authorisation Required (RNP-AR) TIFP and on listed TIFP.

4 Exemption — RNP-AR TIFP

 Under this section, Jeppesen, and its Chief Designer are exempt from compliance with each of the provisions in Part 173 of CASR 1998 mentioned in Schedule 1, to the extent mentioned for the provision.

5 Conditions — RNP-AR TIFP

 Under this section, the exemption in section 4 is subject to the conditions mentioned in Schedule 2.

6 Exemption — listed TIFP

 Under this section, Jeppesen, and its Chief Designer, are exempt from compliance with each of the provisions in Part 173 of CASR 1998 mentioned in Schedule 3 to the extent mentioned for the provision.

7 Conditions — listed TIFP

 Under this section, the exemption in section 6 is subject to the conditions mentioned in Schedule 4.

Schedule 1 Extent of exemption under section 4

 This Schedule lists the various provisions of CASR Part 173, and, by reference, the MOS, referring to ICAO Doc 8168 (PANS-OPS), from which Jeppesen is exempted. When read with the Conditions in Schedule 2, these exemptions are, in effect, to enable Jeppesen to design RNP-AR TIFP.

Schedule 2 Conditions on exemption under section 4

 This Schedule sets out the conditions on which the exemption enabling RNP-AR design is dependent.

 1Jeppesen may only design an RNP-AR TIFP in accordance with ICAO Doc 9905 (RNP-AR Procedure Design Manual) and the applicable provisions of the MOS. In the event of any inconsistency between ICAO Doc 9905 (RNP-AR Procedure Design Manual) and an applicable provision of the MOS, the MOS provision is to prevail.

 2 Except to the extent of the exemption Jeppesen must comply with all other relevant provisions in Part 173 of CASR 1998 and the MOS.

 3 Jeppesen must ensure that design work is carried out by its Chief Designer and its employees in accordance with its operations manual.

 4 The Jeppesen operations manual must include:

(a) a description of the processes and documents used to present the Chief Designer and design staff with the relevant standards, rules and procedures contained in:

 (i) ICAO Doc 9905 (RNP-AR Procedure Design Manual); and

 (ii) the MOS (other than the parts or provisions of the MOS to which the exemption applies); and

 (iii) the drafting conventions agreed between Jeppesen and AIS for RNP-AR TIFP; and

(b) any site-specific instructions for the provision of RNP-AR design services; and

(c) a copy and explanation of this instrument; and

(d) a copy of any directions given by CASA.

 A Note indicates that under regulation 173.375 of CASR 1998, CASA may give directions requiring Jeppesen to include, or alter, information in its operations manual.

 5 The Jeppesen operations manual procedures for verifying an RNP-AR TIFP must include the requirement that verification may only be carried out by the Chief Designer or qualified designer who has successfully completed an approved course of training in RNP-AR design criteria and procedures.

 6 Jeppesen must ensure that before his or her appointment, the Chief Designer, or the acting Chief Designer, is a qualified designer and has successfully completed an approved course of training in RNP-AR design criteria and procedures.

 7 Jeppesen must ensure that each employee who carries out supervisory duties for RNP‑AR design work under the procedure design certificate has successfully completed an approved course of training in RNP-AR design criteria and procedures.

 8 Jeppesen must ensure that each RNP-AR TIFP, which is given to the AIS for publication in the AIP, is accompanied by the Chief Designer’s certificate certifying that the procedure is designed and validated in accordance with the ICAO Doc 9905 (RNP-AR Procedure Design Manual), and the applicable provisions of the MOS.

 9 The Jeppesen safety management system must include procedures and requirements for compliance with the safety standards for designing, reviewing, amending or verifying RNP-AR TIFP in accordance with the ICAO Doc 9905 (RNP-AR Procedure Design Manual), and the applicable provisions of the MOS.

 10 For the purposes of RNP-AR TIFP, the documents and reference material referred to in, and the requirements mentioned in, subsection 1.1.5 and subsection 4.1.1 of the MOS must be taken by Jeppesen to include mention of ICAO Doc 9905 (RNP-AR Procedure Design Manual).

 11 Jeppesen may transfer its responsibility for maintaining an RNP-AR TIFP only with the written approval of CASA.

 12 Jeppesen must permit an authorised inspector to exercise his or her powers under Division 173.E.5 of CASR 1998.

 13 Jeppesen must comply with any written directions given by CASA for the purpose of ensuring that this exemption and its conditions are effectively and appropriately complied with.

 14 For each RNP-AR TIFP, in addition to any other requirement under CASR 1998 or the MOS to maintain a TIFP, Jeppesen must review the RNP-AR TIFP to ensure that it complies with the relevant standards in CASR 1998 and the MOS as modified by this instrument.

 15 For clause 14:

(a) the first review of an RNP-AR TIFP must occur before the third anniversary of the date of publication of the RNP-AR TIFP; and

(b) the second review of the RNP-AR TIFP must occur before the third anniversary of the date of the first review; and

(c) each subsequent review of the RNP-AR TIFP must occur before the third anniversary of the date of the preceding review.

Note   The intention is that Jeppesen must ensure that not more than 3 years elapses between its compliance reviews of each RNP-AR TIFP.

Schedule 3 Extent of exemption under section 6 for listed TIFP

 This Schedule, applying for listed TIFP, mentions provisions of CASR Part 173, and, by reference, the MOS, dealing with TIFP design drafting conventions as set out in the MOS that are superceded by the drafting conventions agreed to with the AIS.

Schedule 4 Conditions on exemption under section 6 for listed TIFP

 This Schedule sets out the conditions on which the exemption from MOS drafting conventions is dependent.

 1Jeppesen must ensure that each listed TIFP which is given to the AIS for publication in the AIP is accompanied by the Chief Designer’s certificate certifying that the procedure is designed and validated in accordance with any applicable standards set out in, or referred to in, ICAO Doc 8168 (PANS-OPS) and the MOS, except for Section 8.9 of the MOS (Publishing).

 2The Jeppesen operations manual must include a description of the processes and documents used to present the Chief Designer and design staff with the relevant standards, rules and procedures contained in the drafting conventions agreed between Jeppesen and AIS for listed TIFP.

 3 For each listed TIFP, in addition to any other requirement under CASR 1998 or the MOS to maintain a TIFP, Jeppesen must review the TIFP to ensure that it complies with the relevant standards in CASR 1998 and the MOS as modified by this instrument.

 4 For clause 3:

(a) the first review of a listed TIFP must occur before the third anniversary of the date of publication of the TIFP; and

(b) the second review of the listed TIFP must occur before the third anniversary of the date of the first review; and

(c) each subsequent review of the listed TIFP must occur before the third anniversary of the date of the preceding review.

Note   The intention is that Jeppesen must ensure that not more than 3 years elapses between its compliance reviews of each listed TIFP.