Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — from requirement to carry serviceable ADS-B transmitting equipment when operating in defined airspace
Purpose
Automatic dependent surveillance – broadcast (ADS-B) avionics is a modern aircraft surveillance system for air traffic control (ATC) using ground stations to receive radio signals transmitted by equipped aircraft. Using ADS-B avionics, an aircraft is able to broadcast its identity, position, altitude, velocity and many other flight parameters with a degree of accuracy, integrity and reliability that is better than more conventional secondary surveillance radar (SSR).
CASA EX53/16 replaces CASA EX155/15 after the latter expires at the end of March 2016. CASA EX53/16 is made in identical terms, but commences on 1 April 2016 and expires at the end of August 2016.
Legislation
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.
Exemptions
Subpart 11.F of the Civil Aviation Safety Regulations 1998 (CASR 1998) deals with exemptions. Under subregulation 11.160 (1), and for subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from a provision of the Civil Aviation Regulations 1988 (CAR 1988), CASR 1998 or a Civil Aviation Order (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, 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 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.).
Background
Under paragraph 9B.8 of CAO 20.18, on and after 12 December 2013, if an aircraft operates at or above flight level (FL) 290 (that is, at or above an altimeter height of 29 000 feet at international standard atmosphere (ISA)), it must carry serviceable ADS‑B transmitting equipment that complies with the approved equipment configuration specified in Appendix XI of the CAO.
Subregulation 207 (2) of CAR 1988 provides that a person must not use an Australian aircraft in a class of operation if the aircraft is not fitted with instruments and fitted with, or carrying, equipment (including emergency equipment) that CASA has approved and directed.
The same ADS-B carriage requirement applies to the aircraft of foreign operators in Australia as follows:
- for the aircraft of an operator who holds a foreign registered aircraft AOC issued by CASA for charter operations or aerial work operations (under clause 7 in Appendix 3 of CAO 82.1)
- for the aircraft of an operator who holds a foreign registered aircraft AOC issued by CASA for regular public transport operations in other that high capacity aircraft (under clause 7 in Appendix 6 of CAO 82.3)
- for the aircraft of an operator who holds a foreign registered aircraft AOC issued by CASA for regular public transport operations in high capacity aircraft (under clause 7 in Appendix 4 of CAO 82.5)
- for foreign registered aircraft engaged in private operations into or out of, or in, Australian territory under clause 7 in Schedule 1 of the CASA Direction under regulation 209 of CAR 1988 (originally CASA 521/09, but more recently, CASA 61/14).
This Australian mandate for the carriage of ADS-B equipment enhances the safety and efficiency of air traffic management (ATM). It will enable ATM to better manage both increasing air traffic in upper airspace, and increased use of flexible routing for trans‑continental flights. Thus, in time, ADS-B will become the primary surveillance system for flight over much of the Australian continent.
However, for some time to come, SSR will remain the primary surveillance system used by Airservices Australia (AA) in controlled terminal areas, and in the special east-coast radar area (the radar J-curve area, extending from 200 nautical miles north of Cairns to 200 nautical miles west of Adelaide). In addition, most of the Australian-administered airspace outside Australian territory (with the exception of the airspace over the Great Australian Bight, some of Bass Strait and the Gulf of Carpentaria) will remain without surveillance. The air traffic separation service will continue to be provided procedurally in that airspace.
As the 12 December 2013 mandate date approached, several of the major overseas manufacturers of business jet aircraft advised that there would be delays in providing factory supported supplemental type certificates (STCs) for the installation of ADS-B equipment. Manufacturers had been urged to speed-up the availability of installation kits.
For a number of aircraft types, particularly those with highly integrated avionics suites, it was evident that operators would not be able to meet the 12 December 2013 compliance date.
To assist in the management of this contingency, and following consultations with AA, CASA decided to issue a geographically-limited exemption from the relevant ADS-B carriage requirement to cover both Australian and foreign aircraft operators, subject to compliance with requirements and conditions of the exemption (CASA EX113/13 and CASA EX56/14 refer). This would enable non-ADS-B equipped aircraft to operate at or above FL 290 in certain restricted areas of airspace, pending availability and installation of ADS-B equipment.
Instrument
Subject to certain flight planning conditions, CASA EX53/16 continues the exemption policy to exempt the operator from the requirement to carry serviceable ADS-B transmitting equipment in defined airspace provided the operation is an exempted operation occurring during the exemption period. Each of the expressions in italics is defined in the exemption instrument.
The new exemption period provided by CASA EX53/16 (which originally commenced on 12 December 2013 and continues unbroken) is from 1 April 2016 to the end of August 2016. The reason for the extension of the exemption period until the end of August 2016 is because the manufacturer of the operator’s Cessna 560XL aircraft will not be able to provide aircraft operators with a service bulletin needed to enable the use of the ADS-B solution until the third quarter of 2016. Homada Pty Ltd is an operator of Cessna 560XL aircraft and, while a non‑manufacturer’s ADS-B solution for Cessna 560XL aircraft is available on the market, the operator has asked that the exemption be extended until such time that the manufacturer’s ADS-B solution can be assessed and implemented.
An exempted operation means 1 or more aircraft operations of which CASA has been notified in writing by the operator, before the operation commences, of the operator’s intention to operate in exempted airspace during the exemption period. The type, model, and nationality and registration marks of each aircraft must be included in the notification.
Exempted airspace is Australian-administered airspace at or above FL 290 in the SSR radar J-curve area; airspace over external territories or outside the territorial seas. Airspace is not exempted over most of mainland Australia (and Tasmania) or within the 12 mile territorial limit (except the radar J-curve); or over specific parts of the Gulf of Carpentaria, Bass Strait and the Great Australian Bight.
The requirement to carry serviceable ADS-B transmitting equipment means the requirement imposed on operators under the provisions of CAO 20.18, CAO 82.1, CAO 82.3, CAO 82.5 and the CASA Direction, as mentioned above.
A number of conditions apply to the operator. The operator must confine exempted operations to defined airspace, the flight plan for each exempted operation must include a description on the ADS-B exemption, and the operator must provide CASA with evidence, if requested to do so, of the operator’s intention to carry serviceable ADS-B transmitting equipment on the aircraft. In addition, the operator is not permitted to operate in ADS-B mandatory airspace defined by paragraph 9B.11 of CAO 20.18 unless the operator carries serviceable ADS-B transmitting equipment or has otherwise been directed by ATC to operate in that airspace.
Schedule 1 and Attachments 1 and 2 to Schedule 1 provide the coordinate details and pictorial representations of the east coast SSR coverage area and the area of defined airspace for the purpose of the exemption.
Legislation Act 2003 (the LA)
For subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from compliance with a provision of the regulations or the CAOs. Under subparagraph 57A (b) (i) of the LA, an instrument is a legislative instrument for subsection 8 (5) of the LA if it is declared to be a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 (the AIA) under legislation in force before the commencement of the LA.
Where CASA has issued a CAO that is not an airworthiness directive, and CASA later issues an exemption that affects the operation of the CAO, regulation 5A of CAR 1988 provides that the exemption is a disallowable instrument for the purposes of section 46A of the AIA.
CASA EX53/16 exempts the operator from specified requirements of CAO 20.18, CAO 82.1, CAO 82.3 and CAO 82.5 and, therefore, is declared to be a disallowable instrument. Accordingly, this instrument is subject to tabling and disallowance in Parliament under sections 38 and 42 of the LA.
Consultation
For section 17 of the LA, CASA previously consulted with AA and the Australian Strategic Air Traffic Management Group (ASTRA) (an industry group). On 26 August 2013, CASA also published the first exemption of this kind (CASA EX113/13) on its website for public information and comment by close of business on 20 September 2013. By the closing date, CASA had received responses from industry, and all comments were taken into account. In June 2015, CASA consulted AA on the continuation of the ADS-B exemption policy for Homada Pty Ltd with feedback that, while the general exemption renewal was not supported, AA would not oppose limited extension of the ADS-B exemption policy on a case-by-case basis.
CASA EX113/13, and its successor CASA EX56/14, applied broadly to industry, whereas CASA EX53/16 and its predecessor EX155/15 apply only to 1 operator for the operation of 1 aircraft. The reason why CASA EX53/16 applies only to Homada Pty Ltd is that, for the operator’s Cessna 560XL aircraft, there is still no service bulletin for the ADS-B solution available from the manufacturer.
Having regard to the circumstances, CASA considers that no further consultation for CASA EX53/16 was required because the changes are administrative in effect and take account of CASA 61/14.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement is not required for OBPR in this case because the exemption 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 1 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.
Making and commencement
The instrument has been made by a delegate of CASA under subregulation 11.260 (1) of CASR 1998.
The exemption commences on 1 April 2016 and expires at the end of August 2016, as if it had been repealed by another instrument.
[Instrument number CASA EX53/16]
Appendix 1
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 — from requirement to carry serviceable ADS B transmitting
equipment when operating in defined airspace
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
Under the Civil Aviation Orders and a related Direction instrument, by 12 December 2013, Australian and foreign-registered aircraft in Australian-administered airspace must carry serviceable ADS-B transmitting equipment when operating at or above flight level 290 (that is, at or above an altimeter-related height of 29 000 feet). This is to improve the safety and efficiency of air traffic management.
There are uncontrollable delays associated with the overseas manufacture and supply of some relevant ADS-B equipment and, as a result, some Australian and foreign-registered aircraft operators were not able to meet the 12 December 2013 compliance date.
To assist in the management of this contingency, and following consultations with Airservices Australia (AA) and others, CASA issued a geographically-limited exemption (CASA EX113/13 and its successor CASA EX56/14) from the relevant ADS-B carriage requirement to cover both Australian and foreign aircraft operators, subject to compliance with the requirements and conditions of the exemption. As exemptions, CASA EX113/13 and CASA EX56/14 were entirely beneficial, although safety conditions were attached, for example, timely operational notification to CASA.
Secondary surveillance radar (SSR) (which ADS-B will in time replace) will remain the primary surveillance system used by AA in controlled terminal areas, and in a defined east‑coast radar area. Most of the Australian-administered airspace outside Australian territory (with some exceptions) will remain without surveillance. The areas in which exemption from the ADS-B carriage requirement applied were, therefore, restricted and defined in terms of continuing availability of SSR or procedural air traffic separation.
CASA EX53/16 is an instrument which continues the exemption policy for Homada Pty Ltd (the operator). The operator operates a Cessna 560XL aircraft which has not been provided with a service bulletin needed to enable the use of the manufacturer’s ADS-B solution. It is expected that the manufacturer will be able to provide this solution by the third quarter of 2016 and, therefore, CASA EX53/16 has effect until the end of August 2016.
Human rights implications
The exemption in the 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. 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