Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX55/21 — Operation of Aircraft with Defect Beyond Designated Rectification Interval Exemption 2021
Purpose
The purpose of CASA EX55/21 — Operation of Aircraft with Defect Beyond Designated Rectification Interval Exemption 2021 (the instrument) is to enable operators of aircraft maintained under Part 42 of the Civil Aviation Safety Regulations 1998 (CASR) to fly aircraft with a defect after the rectification period for the defect specified in the aircraft’s minimum equipment list (MEL) has expired, provided CASA has approved the defect, under regulation 37 of the Civil Aviation Regulations 1988 (CAR), as a permissible unserviceability (CAR 37 PU) and the aircraft is used in accordance with any conditions imposed in a CASA direction to ensure the safety of air navigation.
Without the instrument, regular public transport (RPT) operators and other operators of aircraft maintained under Part 42 of CASR may be subject to significant constraint if they are unable to source parts to rectify a defect covered by their MEL, within the time frame mentioned in the MEL, resulting in the grounding of their aircraft.
The instrument will not be required after the commencement of the Civil Aviation Safety Amendment (Part 91) Regulations 2018 (Part 91 Amendment Regulations).
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and in the interests of the safety of air navigation. Relevantly, the Governor-General has made CASR and CAR.
Subpart 11.F of CASR provides for the granting of exemptions from particular provisions of the regulations. Subregulation 11.160 (1) of CASR provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the regulations.
Under subregulation 11.160 (2) of CASR, an exemption may be granted to a person or a class of persons. Under subregulation 11.170 (3) of CASR, in deciding whether to grant an exemption, CASA must regard as paramount the preservation of at least an acceptable level of aviation safety.
Regulation 11.205 provides that 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.
Regulation 11.225 of CASR requires an exemption to be published on the Internet. Under subregulation 11.230 (1), the maximum duration of an exemption is 3 years.
Subregulation 37 (1) of CAR empowers CASA to approve a defect in an Australian aircraft as a CAR 37 PU. Under subregulation 37 (2), CASA may, for the purpose of ensuring the safety of air navigation, direct that the use of an Australian aircraft with a CAR 37 PU is subject to such conditions as are set out in the direction.
Under subregulation 42.030 (1) of CASR, it is an offence for the registered operator of an aircraft to operate the aircraft for a flight, or permit it to be operated for a flight, if a requirement mentioned in subregulation 42.030 (2) is not met for the aircraft before the flight commences.
Paragraph 42.030 (2) (a) requires that the registered operator has ensured that the requirements mentioned in Division 42.C.2, which include regulations 42.110 and 42.115 described below, are met for the aircraft. Where there is a defect in the aircraft, paragraph 42.030 (2) (e) requires at least 1 of the several requirements listed under that paragraph to be met. Among other matters, these requirements include the circumstance where the operation of the aircraft for the flight with the defect is permitted by the MEL for the aircraft. These requirements also include the circumstance where the rectification of the defect is deferred in accordance with Subdivision 42.D.6.1, which includes regulation 42.360 described below.
Under subregulation 42.110 (1) of CASR, it is an offence if the person responsible for continuing airworthiness for an aircraft does not comply with regulation 42.115 in relation to the aircraft. Under subregulation 42.115 (1), if the person responsible for continuing airworthiness for an aircraft becomes aware that there is a defect in the aircraft, the person is generally required to ensure that the defect is rectified before the aircraft is next operated for flight. However, that requirement does not apply if operation of the aircraft for a flight with the defect is permitted by the MEL for the aircraft.
Regulation 42.360 of CASR deals with when a qualified individual may defer rectification of defects. A qualified individual commits an offence if they defer the rectification of a defect in an aircraft and the deferral is not permitted by subregulation 42.360 (3). Among other circumstances, deferral of the rectification of a defect is permitted if the operation of the aircraft for the flight with the defect is permitted by the MEL for the aircraft.
Subsection 98 (5D) of the Act provides that, despite section 14 of the Legislation Act 2003 (the LA), a legislative instrument made under the Act or the regulations may apply, adopt or incorporate any matter contained in any instrument or other writing as in force or existing from time to time, even if the other instrument or writing does not yet exist when the legislative instrument is made.
Background
Part 42 of CASR generally prevents RPT operators and some other operators of aircraft from flying their aircraft with certain defects covered by the MEL for the aircraft if the rectification period for the defect mentioned in the MEL has ended. The MEL designates a rectification interval for each defect listed in the MEL. The designated rectification interval for a defect will be specified as a Category A, B, C or D rectification interval, depending on the period within which the operation of the aircraft for the flight is permitted with the defect.
CASA has previously granted instruments CASA EX71/13, CASA EX100/16 and CASA EX64/18 to permit extended rectification intervals for specified kinds of defects, subject to meeting conditions designed to ensure the safety of air navigation. In deciding to renew the exemption, CASA has regarded as paramount the preservation of at least an acceptable level of safety.
The instrument will not be required after the commencement of the Part 91 Amendment Regulations. New Subpart 91.Y of CASR to be inserted by the Part 91 Amendment Regulations will provide for the approval of an extension of the rectification interval for an item specified in an MEL for an aircraft. Section 2 of the Part 91 Amendment Regulations states that they are to commence on 2 December 2021.
Regulation 91.945 of CASR will provide for the continuing airworthiness management organisation for an aircraft to approve an extension of the rectification interval for an item. The aircraft will then be able to be operated with the extended rectification interval for the item. This approval power is limited to defects listed in the MEL as having a designated rectification interval of “Category B” or “Category C”. Consistent with the instrument, for defects having a designated rectification interval of “Category A” or “Category D”, the approval must be given by CASA. Also, for aircraft that for which there is no continuing airworthiness management organisation, approval must be given by CASA.
Continuing airworthiness management organisation is defined in the CASR Dictionary as meaning a person who holds an approval under regulation 42.590 that is in force.
Instrument
This instrument ensures that a contravention of the requirements of paragraphs 42.030 (2) (a) and (e) and regulations 42.115 and 42.360 of CASR will not occur if the approval of a CAR 37 PU permits the operation of an affected aircraft beyond the designated rectification interval for the defect. An affected aircraft can only be operated beyond the designated rectification interval if a CAR 37 PU has been approved and if it is used in accordance with the conditions set out in any CASA direction relating to the defect. An affected aircraft is an aircraft to which Part 42 of CASR applies, that has an MEL that permits operation of the aircraft for a flight with a defect before the expiration of a designated rectification interval, and that has an affected defect.
Section 1 sets out the name of the instrument.
Section 2 provides for the duration of the instrument.
Section 3 sets out some definitions for the instrument. A key defined term is affected defect, for an aircraft, which is defined as meaning a defect which is included in the MEL for the aircraft and for which the designated rectification interval has expired. Designated rectification interval, for a defect in an aircraft, means the period within which the MEL permits the operation of the aircraft for a flight with the defect. An MEL, for an aircraft, is defined as meaning the minimum equipment list for the aircraft, as existing from time to time.
Section 4 exempts the registered operator of an affected aircraft from the CASR requirement not to operate the aircraft, or permit the aircraft to be operated, if the registered operator has not ensured that the requirements relating to an affected defect set out in the continuing airworthiness management tasks in Division 42.C.2 of CASR, and in paragraph 42.030 (2) (e) of CASR, have been complied with. Division 42.C.2 includes the requirement for rectification of defects to aircraft before flight. Paragraph 42.030 (2) (e) also sets out requirements relating to defects including, among other things, the requirement for permissions of certain kinds for operation of the aircraft for flight if there is a defect in the aircraft, or deferral of rectification of the defect.
The exemption is subject to the condition in subsection 4 (2) that the registered operator must ensure that the aircraft is operated with the affected defect beyond the designated rectification interval for the defect only if the operation is permitted by the approval of a CAR 37 PU. CASA has delegated its power to approve a defect as a CAR 37 PU to officers of CASA and other delegates, including named individuals employed by aircraft operators. As the condition requires the approval to have been given by an officer of CASA if the defect is listed in the MEL as having a designated rectification interval of “Category A” or “Category D” or if the extended rectification interval for the defect has expired, it limits the types of defects that can be approved as a CAR 37 PU by non-CASA officers.
Section 5 exempts the person responsible for continued airworthiness of an affected aircraft from the CASR requirement not to operate, or permit an aircraft to be operated, for a flight if this is not permitted in a specified way, or if the person has not ensured that the defect is rectified before flight. The specified ways are the aircraft’s configuration deviation list or MEL, or a special flight permit. This exemption is subject to the condition that the person must ensure that operation of the affected aircraft beyond the designated rectification interval for the defect is permitted by an approval of a CAR 37 PU.
Section 6 exempts a qualified individual for an affected defect in an aircraft from the CASR requirement that a qualified individual may defer the rectification of a defect in an aircraft only if it is permitted in a specified way. The specified ways include the aircraft’s instructions for continuing airworthiness, MEL or configuration deviation list. This exemption is subject to the condition that the qualified individual be satisfied, before deferring rectification of the defect, that operation of the affected aircraft beyond the designated rectification interval for the defect is permitted by an approval of a CAR 37 PU.
Incorporation by reference
The instrument incorporates matters contained in the minimum equipment list for an aircraft, as the list exists from time to time for the aircraft and operator (see the definition of designated rectification interval and MEL in section 3). Minimum equipment list is defined in the Dictionary in CASR as meaning a list of each defect in the aircraft that is approved as a permissible unserviceability under regulation 37 of CAR. In accordance with subsection 98 (5D) of the Act, the MEL, for an aircraft, is incorporated as it exists from time to time, and may not yet exist when the legislative instrument is made.
The MEL for an aircraft is developed and maintained by the operator of the aircraft to ensure that aircraft are maintained to safe standards while permitting an approved level of flexibility for non-essential aircraft systems. A copy of the MEL is carried in the aircraft for the information of flight crew and those involved with the continuing airworthiness of the aircraft (including qualified individuals) and so are available to those persons who receive the benefit of the exemption in this legislative instrument, subject to the conditions. If the MEL is not available, then a person may be obliged to comply with the law as unaffected by this legislative instrument, which is more onerous for the operator.
An MEL is an instrument of an operator who may not make it publicly available. However, CASA has incorporated by reference matters in the MEL because there are no other documents serving the relevant purpose, whether freely available or otherwise, and because it is necessary to apply, adopt or incorporate some aspects of an MEL for the safety regulatory purposes of the instrument. On request, CASA will endeavour to obtain a copy of an MEL from an operator for viewing free of charge at any office of CASA.
Legislation Act 2003
Paragraph 98 (5A) (a) of the Act provides that CASA may issue instruments in relation to matters affecting the safe navigation and operation or the maintenance of aircraft. Additionally, paragraph 98 (5AA) (a) of the Act provides that an instrument issued under paragraph 98 (5A) (a) is a legislative instrument if the instrument is expressed to apply in relation to a class of persons. The instrument exempts a class of persons from complying with subregulations 42.030 (1) and 42.110 (1) and regulation 42.360 of CASR, to the extent specified. The instrument is, therefore, a legislative instrument, and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
Consultation under section 17 of the LA has not been undertaken in this case. The instrument continues the existing arrangements which allow extension of a repair interval provided by an MEL for an aircraft. The instrument alleviates a burden on operators by avoiding the need to ground the aircraft until the defect can be repaired.
The policy supporting the exemption remains unchanged since CASA EX100/16 was made. No adverse feedback has been received on the expiring instrument and industry requires the instrument to be made to support aircraft operation.
CASA advised in the Explanatory Statement for the previous exemption instrument (CASA EX64/18) that CASA was developing regulatory amendments that would address the intent of this exemption within CASR. The subject matter of the instrument was consulted on in the development of Part 91 of CASR, and the amendments to commence on 2 December 2021 by the Part 91 Amendment Regulations will obviate the need for this exemption.
Given these circumstances, CASA is satisfied that no further consultation for section 17 of the LA is appropriate or reasonably practicable for this instrument.
Sector risk, economic and cost impact
Subsection 9A (1) of the Act states that, in exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration. Subsection 9A (3) states that, subject to subsection 9A (1), in developing and promulgating aviation safety standards under paragraph 9 (1) (c), CASA must:
(a) consider the economic and cost impact on individuals, businesses and the community of the standards; and
(b) take into account the differing risks associated with different industry sectors.
The cost impact of a standard refers to the direct cost (in the sense of price or expense) which a standard would cause individuals, businesses and the community to incur. The economic impact of a standard refers to the impact a standard would have on the production, distribution and use of wealth across the economy, at the level of the individual, relevant businesses in the aviation sector, and the community more broadly. The economic impact of a standard could also include the general financial impact of that standard on different industry sectors.
The instrument replaces a repealing instrument and there will be no change to the economic or cost impact on individuals, businesses or the community. Without the instrument, regular public transport operators and other operators of aircraft maintained under Part 42 of CASR may be subject to unnecessary operational constraints if they are unable to source parts to rectify a defect within the time mentioned in the MEL, resulting in costs arising from the grounding of their aircraft.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required in this case, as 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 of Compatibility with Human Rights at Attachment 1 has been 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 relying on the power of delegation under subregulation 11.260 (1) of CASR.
The instrument commenced on 1 June 2021 and is to be repealed immediately after the commencement of the Part 91 Amendment Regulations or the end of 31 May 2024, whichever is the earlier.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX55/21 — Operation of Aircraft with Defect Beyond Designated
Rectification Interval Exemption 2021
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
The purpose of this legislative instrument is to exempt specified people from some obligations relating to the management of aircraft defects, where the rectification period for the defect mentioned in the minimum equipment list (MEL) for the aircraft has expired. The instrument provides that these aircraft may only be operated with a defect if the defect is approved by CASA as a permissible unserviceability, and the aircraft is used in accordance with any conditions imposed in a CASA direction to ensure the safety of air navigation.
The instrument is made under regulations 11.160 and 11.205 of the Civil Aviation Safety Regulations 1988 (CASR) and provides exemptions from certain requirements of CASR for the registered operator of an affected aircraft, the person responsible for continuing airworthiness of an affected aircraft, and a qualified individual for an affected defect in an aircraft. An affected aircraft is an aircraft to which Part 42 of CASR applies, that has an MEL that permits operation of the aircraft for a flight with a defect before the expiration of a designated rectification interval, and that has an affected defect.
Without the instrument, regular public transport operators and other operators of aircraft maintained under Part 42 of CASR may be subject to unnecessary operational constraints if they are unable to source parts to rectify a defect within the time mentioned in the MEL, resulting in the grounding of their aircraft.
Human rights implications
This legislative 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