Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — weight limitations in aerial application operations
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.
Aerial application operations under CASR Part 137
Subregulation 137.190 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998), states:
The pilot in command of an aeroplane engaged in an application operation must not commence a take-off if the aeroplane’s gross weight exceeds:
(a) the maximum gross weight shown in the aeroplane’s flight manual; or
(b) any maximum gross weight that:
(i) has been established for that type of aeroplane by a flight test supervised by CASA; and
(ii) is shown on a placard, approved by CASA and displayed in the aeroplane’s cockpit; or
(c) the maximum gross weight shown on the type certificate, or type certificate data sheet, that is issued for the aeroplane by the NAA of the State of Design (within the meaning given in Annex 8 to the Chicago Convention) of the aeroplane.
Under subregulation 137.190 (2) of CASR 1998, a pilot must calculate the take-off weight by a method that includes calculating the weight of:
(a) the crew and any equipment carried; and
(b) the aeroplane’s fuel load.
Under the definitions in regulation 137.010 of CASR 1998, an aerial application operation means, among other things, a flight to apply application material. Application material means, among other things, material such as fertilizer, baits and pesticides. Apply means to drop or spray the material onto the ground or water.
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 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.
Background
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 26 May 2007. CASR Part 137 establishes a new regulatory framework for aerial application operations.
Application provisions have the effect of phasing in the operation of CASR Part 137. Self-employed pilots are subject to CASR Part 137 from its commencement. Each new relevant AOC applicant and their pilots are subject to CASR Part 137 from its 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, all relevant operators and their pilots would be subject to CASR Part 137.
Aeroplane weight limitations as set out in regulation 137.190 of CASR 1998, above, are part of the framework.
Under normal principles of interpretation, the effect of the alternatives specified in subregulation 137.190 (1) of CASR 1998 (above) is that the aeroplane must not commence a take-off if the aeroplane’s gross weight exceeds any of the specified weights, meaning in effect the lowest of them.
However, this is contrary to CASA’s original intention for these operations which was that the aeroplane in an application operation must not commence a take-off if the aeroplane’s gross weight exceeds the highest of the specified weights. This is consistent with the preservation of an acceptable level of safety and reflects previous and existing practice for these kinds of operations.
To correct the problem, CASA has issued an exemption which exempts pilots in application operations from the weight limitations expressed in subregulation 137.190 (1) of CASR 1998, but subject to conditions that, in effect, replace subregulation 137.190 (1) in the form in which it was originally intended, namely that the key weight is the highest of the 3 specified weights.
Details of exemption instrument
The exemption instrument applies to each pilot in command of an aeroplane engaged in an application operation under Part 137 of CASR 1998 (an operation).
The instrument exempts the pilot from compliance with subregulation 137.190 (1) of CASR 1998.
The exemption is subject to the condition that the pilot must not commence a take-off for an operation if the aeroplane’s gross weight exceeds whichever is the highest of certain weights set out in the condition. These weights are the same 3 weights as are mentioned in subregulation 137.190 (1).
It is necessary for a second condition to repeat subregulation 137.190 (2) of CASR 1998 in relation to how the weight is to be calculated so that the same calculation procedure also applies for the purposes of the exemption.
Under another condition, the aeroplane must have a permanently installed jettison system to allow the pilot in command to jettison in flight the contents of a hopper or vessel permanently installed in the aeroplane.
CASR amendment
The exemption is required immediately to facilitate aerial application operations on the basis originally intended by CASA and expected by industry. An amendment to subregulation 137.190 (1) of CASR 1998 will be prepared to correct the error in the subregulation.
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 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 occurred in this case. The exemption corrects an error to bring the operation of Part 137 of CASR 1998 into line with CASA’s original intentions, and industry’s original expectations, for it.
Commencement
The instrument commences on the day after it is registered.
The exemption has been made by the Deputy Chief Executive, Strategy and Support, a delegate of CASA, in accordance with subregulation 7 (1) of CAR 1988.
[Instrument number CASA EX56/07]