Explanatory Statement
Civil Aviation Regulations 1988
Civil Aviation Safety Regulations 1998
Exemption — agricultural rating – aerial baiting
Exemption — CASR Part 137 – aerial baiting
Purpose
The purpose of the exemption is to exempt operations for feral animal aerial baiting from certain pilot qualification and operator requirements.
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the safety of air navigation.
Exemption under CASR 1998
The exemption is issued under regulation 11.160 of the Civil Aviation Safety Regulations 1998 (CASR 1998).
Other legislation
Commercial agricultural operations
Under subsection 27 (9) of the Act and subparagraph 206 (1) (a) (iii) of the Civil Aviation Regulations 1988 (CAR 1988), commercial agricultural operations require an Air Operator’s Certificate (AOC).
Aerial baiting operations are considered to be agricultural operations within the meaning of subregulation 2 (1) of CAR 1988, that is “the broadcasting of chemicals, seeds, fertilisers and other substances from aircraft for agricultural purposes, including the purposes of pest and disease control”.
Agricultural purposes include both private and public agricultural purposes of all kinds (typically cropping, animal husbandry and plantations) and the protection of both private and public agricultural activities from feral pests.
Under paragraph 5.01 (2) (a) and regulation 5.14 of CAR 1988, and Civil Aviation Order (CAO) 40.6, a pilot conducting an agricultural operation must hold an agricultural pilot (aeroplane) rating, or an agricultural pilot (helicopter) rating, if applicable.
Dropping operations
Under paragraph 5.01 (2) (a) of CAR 1988, a flight crew rating is required for flying in agricultural operations.
Under regulation 150 of CAR 1988, the pilot in command of an aircraft may not permit anything to be dropped from the aircraft except in accordance with directions issued by CASA under subregulation 150 (2). This exemption exempts the pilot in command of an aerial baiting operation from compliance with directions applicable to agricultural operations issued under subregulation 150 (2).
CASA has issued dropping directions in CAO 29.5. However, these directions are expressed not to apply to aircraft engaged in agricultural operations or agricultural training operations.
Low flying
Under subregulation 157 (1) of CAR 1988, the pilot in command of an aircraft must not fly over a non-populous area at a height lower than 500 feet. Under paragraph 157 (4) (b), CASA may issue a general or specific permit to the owner or operator of an aircraft engaged in aerial work operations that require low flying, to permit flight below 500 ft while engaged in the operations.
CAO 20.21 applies to aircraft engaged in agricultural operations (and related inspection flights). Subject to paragraph 3.2, containing what are in effect conditions on flight patterns, building proximity, and height, paragraph 3.1 of CAO 20.21 grants a standing permission for flight at a height lower than 500 feet over any non-populous area for the purpose of agricultural operations authorised by an AOC.
Under subsection 7 of CAO 20.21, a relevant aircraft may, subject to conditions, take advantage of an exemption in relation to turning and maintaining track.
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 25 May 2007. CASR Part 137 establishes a new, integrated, regulatory framework for aerial application operations for aeroplanes. This replaced 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 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.
Aerial application operations
Under regulation 137.235 of CASR 1998, an operator must not allow an aeroplane to be used for an application operation unless the pilot in command is authorised to do so. An explanatory note reminds readers that for this purpose, the pilot must hold: a commercial pilot (aeroplane) licence or an air transport pilot (aeroplane) licence issued under regulation 5.09 of CAR1988; and an agricultural pilot (aeroplane) rating of grade 1 or 2, issued under regulation 5.14 of CAR 1988; and a single engine aeroplane class endorsement, and any special design feature endorsement required for the aeroplane, issued under regulation 5.23 of CAR 1988.
Background
This instrument replaces instrument CASA EX34/10. It is in similar terms and includes more details of the procedures required for the conduct of affected operations.
CASA considers that, provided alternative safety risk mitigators are in place, aerial baiting does not require the pilot in command or the aeroplane operator to satisfy all of the wide range of requirements mentioned above that arise from various legislative sources not directly related to the specific activity of aerial baiting.
CASR Part 137 requires that a pilot must be trained in low flying before conducting any aerial baiting. However, aerial baiting is not always conducted at low level. Aerial baiting does not have the same risks as the aerial application of agricultural materials, including, for example, the fact that aerial baiting operations are not conducted at heights typical of other aerial application operations.
The pilot will also be exempt from all of CASR Part 137. The pilot must, nevertheless, have a commercial pilot (aeroplane) licence or an air transport pilot (aeroplane) licence as required under regulation 5.09, 5.105 or 5.166 of CAR 1988. However, for flights, whether at, above or below 500 ft, an agricultural pilot (aeroplane) rating is not required.
The operator will also be exempt from CASR Part 137.
Safety conditions
Each exemption is subject to conditions.
The pilot exemption is subject to the condition that, for an operation below 500 ft, the operator for whom the pilot is flying must have a general or specific permit from CASA permitting aerial work in the form of aerial baiting below 500 ft.
The operator exemption is subject to the condition that the operator’s operations manual must have relevant procedures for the conduct of aerial baiting operations, and training for such operations, including for operations below 500 ft, if applicable.
In this exemption, risk management procedures have been included in the conditions to clarify the operator’s obligations in regard to relevant procedures.
Another condition specifies that for an operation below 500 ft, the operator must also
have a general or specific permit from CASA permitting aerial work in the form of aerial baiting below 500 ft. For low flying permits issued after the commencement of instrument CASA EX34/10, the permit must state the minimum height permitted.
Legislative Instruments Act 2003 (the LIA)
For subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from compliance with a provision of the regulations or CAOs. An instrument issued under paragraph 98 (5A) (a) of the Act is a legislative instrument if the instrument is expressed to apply to a class of persons or aircraft. The exemption applies to a class of persons. 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 been undertaken in this case. The instrument constitutes a beneficial extension in time of an existing exemption.
Human rights compatibility
This instrument does not engage any of the applicable rights or freedoms. It is compatible with human rights and does not raise any human rights issues.
Human rights implications
The instrument sets out an exemption from legislative requirements as described above. The instrument does not engage any of the applicable rights or freedoms.
Office of Best Practice Regulation (OBPR)
OBPR does not require a Regulation Impact Statement in this case because a preliminary assessment of business compliance costs, in the context of the nature of the instrument, indicates that it will have only a nil to low impact on business.
Commencement
The instrument commences on 1 May 2012, the day after the previous exemption, CASA EX34/10, expires. It stops having effect at the end of 30 April 2015.
The exemption has been made by the Director of Aviation Safety, on behalf of CASA, under subsection 73 (2) of the Act.
[Instrument number CASA EX63/12]