CASA EX28/11 – Exemption – recency flying at night by holders of night V.F.R. agricultural ratings

Overview

The Civil Aviation Regulations 1988 (CAR 1988) were updated through the instrument F2011L00338, issued in 2011, to address the specific issue faced by holders of a night Visual Flight Rules (VFR) agricultural rating. The problem stemmed from the stringent recency flying requirements at night, which many agricultural pilots found challenging to meet due to the nature of their operations. To ensure the safety of air navigation while accommodating the practical difficulties faced by these pilots, the Civil Aviation Safety Authority (CASA) introduced an exemption under subregulation 308(1) of CAR 1988, allowing holders of a night VFR agricultural rating to be exempt from the 20 hours' flying experience requirement at night, provided they meet alternative conditions. This exemption, which was enacted by the Director of Aviation Safety under subsection 73(2) of the Civil Aviation Act 1988, aims to maintain safety standards while recognising the operational constraints of agricultural pilots. The exemption was subject to consultation with relevant industry associations and was set to remain in effect until the end of February 2013.

Scope and Application

The Civil Aviation Regulations 1988, amended by the instrument CASA EX28/11, provide an exemption for holders of a night Visual Flight Rules (VFR) agricultural rating from the usual recency flying requirements at night. Specifically, these individuals are exempt from the necessity of having accumulated a minimum of 20 hours of flying experience at night in agricultural operations within the 12 months prior to the flight. Instead, they must satisfy a recency requirement option of 10 hours or practice the necessary manoeuvres by night in an unladen agricultural aircraft. This exemption applies to persons holding a night VFR agricultural rating, and its purpose is to accommodate the practical realities of agricultural flying where such recency may not be easily met due to the sporadic nature of the work. The exemption is issued under subregulation 308(1) of the Civil Aviation Regulations 1988, and it is contingent upon the person complying with any conditions specified by CASA to ensure safety. The instrument is a legislative instrument for the purposes of the Legislative Instruments Act 2003 and is subject to tabling and disallowance in the Parliament. This exemption is effective from 1 March 2011 until the end of February 2013.

Key Provisions

The Civil Aviation Regulations 1988 (CAR 1988) contain provisions that enable the Civil Aviation Safety Authority (CASA) to issue directions and set requirements for the issuance of flight crew ratings, as per subregulation 5.14(1) and subregulation 5.14(1A). One such direction, issued in Civil Aviation Order 40.2.2, specifies that holders of a night Visual Flight Rules (VFR) agricultural rating must obtain a minimum of 20 hours of flying experience at night in agricultural operations within the 12 months preceding the flight (subparagraph 5(1)(a) of Appendix II). However, due to the nature of agricultural operations, these pilots often find it difficult to meet this recency requirement. To address this issue, subregulation 308(1) of CAR 1988 allows CASA to exempt certain individuals from compliance with specified provisions of the regulations, provided that safety is not compromised. Under this authority, CASA has issued an exemption for holders of a night VFR agricultural rating from the requirement to have 20 hours of night flying experience in agricultural operations within the preceding 12 months. Instead, these pilots must meet an alternative recency requirement, which can be either 10 hours of night flying in an unladen agricultural aircraft or practice of the necessary manoeuvres by night in an unladen agricultural aircraft (subregulation 308(3)). CASA has determined that this alternative requirement will not compromise safety. The exemption is effective from 1 March 2011 until the end of February 2013 and has been made under subsection 73(2) of the Civil Aviation Act 1988 (the Act). In addition to the exemption, the instrument is subject to the Legislative Instruments Act 2003 (LIA) and must be tabled and is subject to disallowance in the Parliament under sections 38 and 42 of the LIA. The exemption is considered a legislative instrument under section 5 of the LIA. The process of consultation with stakeholders, including the Aerial Agricultural Association of Australia and a Part 137 post-implementation review workshop, has been undertaken in accordance with section 17 of the LIA. This exemption remakes a previous instrument, CASA EX22/09, which ceases to have effect at the end of February 2011. Failure to comply with the conditions of the exemption or any other provision of CAR 1988 may result in various civil or criminal consequences, including potential fines and imprisonment, as prescribed under the relevant sections of the Civil Aviation Act 1988 and other applicable legislation. The specific penalties for non-compliance with the exemption or the regulations are not detailed in the instrument but would be determined by the courts or other authorities based on the nature and severity of the breach.