Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — CASR Part 137 for aerial baiting and dropping incendiaries
Exemption — CAR 5.01 (2) (a) agricultural pilot rating
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.
Exemptions from CASR 1998
Under subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998), CASA may grant an exemption from compliance with a provision of CASR 1998. Under subregulation 11.160 (3), CASA may grant an exemption on its own initiative. 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, 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.
Exemptions from CAR 1988
Under subregulation 308 (1) of the Civil Aviation Regulations 1988 (CAR 1988), CASA may exempt aircraft, or persons in, on, or otherwise associated with the operation of, an aircraft, from compliance with specified provisions of CAR 1988.
Under subregulation 308 (2), before making an exemption, CASA must take into account any relevant considerations relating to the interests of safety. Under subregulation 308 (3), CASA may make an exemption subject to conditions specified in the exemption as being necessary in the interests of safety.
CASR Part 137 for aerial applications
Part 137 of CASR 1998 (CASR Part 137), Aerial application operations — other than rotorcraft, was made by the Civil Aviation Safety Amendment Regulations 2007 (No. 1) (SLI 2007 No. 41) and commenced on 26 May 2007. CASR Part 137 establishes a new, integrated, regulatory framework for aerial application operations. This replaces the previous regime of oversight which drew on an amalgam of various provisions of CAR 1988.
Under CASR Part 137, an aerial application operation is a flight by an aeroplane, under an aerial work air operator’s certificate (AOC), to apply application material.
Application material means fertilizer, trace elements seeds, baits water, pesticides and other material. Apply means to drop or spray the material onto the ground or water.
Certain pilot training and checking, aircrew training, transit flights and observation flights with a passenger are also aerial application operations.
CASR Part 137 requires aerial application operators to have specifically approved operations manuals and key personnel (for example, a head of aeroplane maintenance control). The operator must meet certain aeroplane and equipment standards and observe certain operational procedures.
Phased commencement
Specific regulations phase in the operation of CASR Part 137, with the first phase commencing from 26 May 2007. Self-employed pilots are subject to CASR Part 137 from this commencement. Each new relevant AOC applicant and their pilots are subject to CASR Part 137 from this commencement. Each existing relevant AOC holder who wishes to be subject to CASR Part 137 may so elect by submitting an operations manual for approval. Their pilots would also fall under CASR Part 137. On, and from, 26 May 2008 (the second phase), all relevant operators and their pilots are subject to CASR Part 137.
Preparedness of the relevant industry
Following consideration of the state of preparedness of the relevant industry for the second phase, including representations from some operators, CASA concluded that 2 distinct categories of operators reasonably require additional time to transition their operations in order to comply with the new requirements in CASR Part 137. These are operators (the operators) involved in aerial baiting of feral animals or in dropping aerial incendiaries (baiting or incendiaries operations)
Background to preparedness — the 2003 Ruling
Since 1 March 2003, the operators fell within the terms of CASA’s policy document Aviation Ruling 1/2003 — Classification and authorisation of operations involving the aerial baiting of feral animals (the 2003 Ruling).
The 2003 Ruling was based on CASA’s interpretation of certain expressions and provisions in CAR 1988. Under subsection 27 (9) of the Act and subparagraph 206 (1) (a) (iii) of CAR 1988, commercial agricultural operations require an AOC. CASA originally took the view that baiting and incendiaries operations did not fall within the meaning of agricultural operations and, therefore, such operations did not require an AOC.
Nevertheless, CASA has had a practice for some time of issuing operators in these operations with aerial work AOCs containing conditions which, if complied with, permitted baiting and incendiaries operations.
Baiting and incendiaries operations
However, at least 2 other categories of operators also engage in such operations. There are operators under aerial work AOCs who have operations manuals for the operations that are acceptable to CASA. There are also other operators who have aerial work or charter AOCs, no operations manual procedures for the operations, but documentary proof that under the 2003 Ruling they conducted operations acceptably to CASA.
Following the commencement of the first phase of operation of CASR Part 137 on 26 May 2007, there was initially some confusion within the relevant industry as to whether the operations fell within the scope of CASR Part 137 and whether the operators would, therefore, be obliged to comply with it.
CASA considered that the operations did fall within the scope of CASR 137 and the operators would be obliged to comply with it. CASA withdrew the 2003 Ruling in November 2007 because of the commencement of CASR Part 137 (on 26 May 2007) and because the Ruling may not have been correct.
However, certain operators had relied on, and had continued to rely on, the 2003 Ruling up to, and beyond, its withdrawal.
Safety considerations — CASR Part 137
CASA understands that this history of confusion has resulted in circumstances in which the operators have insufficient time and opportunity to transition to compliance with CASR Part 137 before 26 May 2008.
CASA is satisfied that, in these circumstances, it would not prejudice the preservation of an acceptable level of safety if, for a further transitional period of 2 years, the relevant operators continued to operate as they have been doing, subject essentially to the regulatory regime in place before the commencement of CASR Part 137 and provided they also hold an AOC.
Safety considerations — agricultural pilot rating
An aspect of the 2003 Ruling, as of the previous regime for the operations, was that the pilots in operations that were thought (probably erroneously) not to be agricultural operations, were not required to have an agricultural pilot rating. Such a rating is normally required for agricultural operations by paragraph 5.01 (2) (a) of CAR 1988.
CASA is satisfied that taking into account the relevant considerations relating to the interests of safety, it would not prejudice safety if, during the extended transitional period, the pilots were exempted from the requirement to obtain the rating.
To achieve these outcomes, CASA issued this instrument which contains the 2 exemptions.
Details of CASR 1998 exemption instrument
The exemption instrument commences at the start of 26 May 2008 and stops having effect at the end of 25 May 2010. (An exemption may not last for longer than 2 years.)
The instrument applies to an operator who, immediately before the commencement of this instrument, holds an aerial work AOC that is expressed to cover operations for aerial baiting of feral animals (baiting operations) or the dropping of aerial incendiaries for firefighting (incendiaries operations).
The instrument also applies to an operator who, immediately before the commencement of this instrument, holds an AOC for aerial work operations and has an operations manual, accepted by CASA, that includes procedures for baiting or incendiaries operations.
The instrument also applies to an operator who, immediately before the commencement of this instrument, holds an AOC for aerial work or charter operations, has persuasive documentary evidence that during the period from 1 March 2003 (the date of the Ruling) until 26 May 2008 (the date of the commencement of phase 2 of CASR Part 137), he or she conducted baiting or incendiaries operations that were acceptable to CASA, and either, at the commencement of the instrument, has a suitable operations manual, accepted by CASA, or, has one by not later than 23 August 2008.
A Note explains that these operators have 90 days to develop and include in their operations manuals procedures, acceptable to CASA, for baiting and incendiaries operations. They may not conduct operations until the acceptable procedures are included in the manual (see Schedule 1 — Conditions).
Another note indicates that the operations need not have been continuous throughout the relevant 2003 to 2008 period.
CASA considers that, on safety grounds, if these operators do not have suitable procedures in their operations manuals, they must develop them and they may not operate until CASA accepts these procedures. The operators must develop acceptable procedures for their operations manuals within a reasonable time limit (90 days) to ensure some certainty in the administration of this “grandfathering” scheme.
Finally, the exemption also applies to pilots of aircraft in these operations and for these operators.
The exemption exempts each operator and each pilot from compliance with CASR Part 137.
Details of CAR exemption instrument
Under the exemption instrument, each pilot is exempt from compliance with paragraph 5.01 (2) (a) of CAR 1988 for an agricultural pilot rating.
Conditions
The exemption is subject to certain conditions.
The operator, and the pilot a far as applicable, must each observe the conditions and requirements expressed in the relevant AOC.
The exemption provides “grandfathering” protection only for relevant operations that are essentially the same as, or similar to, those conducted during the period from 1 March 2003 until 26 May 2008.
To this end, a condition requires that the relevant operators and pilots must comply with each provision of CAR 1988 (other than paragraph 5.01 (2) (a) of CAR 1988), CASR 1998 and the Civil Aviation Orders (the aviation legislation) that applied to the operation, the operator or the pilot immediately before the commencement of the exemption. They must also comply with each applicable provision of this aviation legislation as amended in the future —other than paragraph 5.01 (2) (a) of CAR 1988, and CASR Part 137.
Finally, an operator, without suitable procedures in his or her operations manual, may only conduct baiting or incendiaries operations after relevant procedures, acceptable to CASA, have been included in the manual (by not later than the end of 23 August 2008).
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 308 of CAR 1988 and regulation 11.215 of CASR 1998 each declare an exemption to be a disallowable instrument. The exemption instrument 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 occurred in this case by means of industry soundings to establish the extent to which operators may be adversely, and unforeseeably, affected by the absence of an exemption from CASR Part 137. The exemption provides 2 years of additional transition time for these operators (and their pilots) to modify their operations (and qualifications) in order to comply with CASR Part 137 (and paragraph 5.01 (2) (a) of CAR 1988).
Commencement
The instrument commences on 26 May 2008, the day of the full application of CASR Part 137 to all relevant operators and pilots.
The exemption has been made by the Deputy Chief Executive, Operations, a delegate of CASA, in accordance with subregulation 7 (1) of CAR 1988.
[Instrument number CASA EX27/08]