Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — from provisions in Part 173 of CASR 1998
Legislation
Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides that the Governor‑General may make regulations for the Act and in the interests of the safety of air navigation.
Terminal instrument flight procedure design
Under subregulation 173.035 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998), it is an offence for a person to carry out design work on a terminal instrument flight procedure (a TIFP) for use by an Australian aircraft operating under the Instrument Flight Rules (IFR), or for use by a foreign aircraft operating under the IFR in Australian territory, unless the person is a certified designer authorised by a procedure design certificate to design such a TIFP.
Under subregulation 173.045 (1) of CASR 1998, a person must apply to CASA for the grant of a procedure design certificate. Under regulation 173.050, the applicant must be able to show that if a procedure design certificate were granted, he or she would be able to comply with the requirements that certified designers must comply with (the criteria). Under regulation 173.350, decisions on applications must be made within 6 months of receipt unless the time is extended by CASA’s requests for further information.
Under subregulation 173.335 (1) of CASR 1998, CASA must grant the certificate if the applicant meets the criteria, otherwise complies with the requirements of the regulations and the granting of the certificate would not be likely to have an adverse effect on the safety of air navigation. Under regulation 173.340, in deciding whether any such adverse effect would be likely, CASA may take various matters into account (for example, the applicant’s record, experience and knowledge). Under subregulation 173.345, CASA may grant a procedure design certificate subject to conditions necessary in the interests of the safety of air navigation.
Under subregulation 173.065 (1) of CASR 1998, a procedure design certificate comes into force on the date stated in it and remains in force unless it is cancelled. Under subregulation 173.085 (1), a certified designer must ensure that a TIFP designed under his or her procedure design certificate is designed in accordance with the standards in the relevant CASA Manual of Standards and also in accordance with the standards promulgated by the International Civil Aviation Organization (ICAO) in ICAO Doc. 8186 (PANS-OPS).
Under regulation 173.090, a certified designer must have verification procedures involving 2 qualified designers independently checking the design of each TIFP designed under the certificate. For this purpose, a qualified designer means the holder, or the employee of the holder, of a procedure design certificate who has successfully completed an approved course of training in the methods and practices contained in ICAO Doc. 8186 (PANS-OPS).
Under subregulation 173.100 (1), a certified designer must ensure that each TIFP is given to the Aeronautical Information Service for publication in the Aeronautical Information Publication (AIP) together with a certificate by the chief designer certifying that the TIFP is designed and validated in accordance with the applicable standards set out in ICAO Doc. 8186 (PANS-OPS).
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 regulation 11.165, a person may apply for an exemption.
Under subregulation 11.170 (3) of CASR 1998, 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 of CASR 1998, an exemption must be published on the internet. 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.
Naverus Inc.
Naverus Inc. (Naverus), based in Seattle in the USA, is an international consulting corporation which designs terminal instrument flight procedures. Naverus has developed design criteria, not available in the public domain, which differ from the criteria set out in ICAO Doc. 8186 (PANS-OPS). The Naverus design rules accommodate the use of advanced navigation capabilities available on modern transport aircraft, such as the Boeing 737, and provide substantially increased safety over procedures designed using conventional criteria of the kind found in ICAO Doc. 8186 (PANS-OPS). For reference purposes, the special Naverus TIFP is known as Area Navigation (Required Navigation Performance — Authorisation Required) (an RNAV (RNP-AR)).
Safety evaluation
The Federal Aviation Administration of the United States of America (FAA) has issued a number of documents that enable the design of a TIFP based largely on the same design concepts as the Naverus design criteria. The FAA criteria are designated Special Aircrew, Aircraft and Authorization Required procedures. This has led to FAA Order 8260.52 which makes advanced RNAV (RNP-AR) approach design criteria available in the public domain in the USA. ICAO, through its Instrument Flight Procedure Panel, has developed similar design criteria which harmonises with the FAA Order 8260.52. While both the FAA and the ICAO approach criteria are similar in concept to the Naverus design criteria, Naverus also incorporates several features which permit additional safety and operational benefits.
CASA conducted an independent evaluation of the Naverus design criteria by considering Civil Aviation Authority New Zealand (CAA NZ) RNAV (RNP) operations at Queenstown, New Zealand, and by consulting with Transport Canada, the FAA and CAA NZ about the safety aspects of procedures designed using Naverus design criteria. CASA has concluded that the trial use of the Naverus design criteria instead of ICAO Doc. 8186 (PANS-OPS) for a TIFP in Australia would preserve a level of aviation safety that was at least comparable to that which would be provided by use of ICAO Doc. 8186 (PANS-OPS). CASA also concluded that the level of safety was at least acceptable to it.
Foreign aircraft under the IFR in Australian territory
On the basis of the foregoing evaluation, Naverus was already a certified designer and had been designing TIFP for use by Australian aircraft, namely aircraft operated by Qantas Airways Limited (Qantas) in a trial of the use of Naverus-designed RNAV (RNP-AR) approach and departure procedures at suitable airports.
Because Naverus designs a TIFP to the Naverus design criteria and not ICAO Doc. 8186 (PANS-OPS), it was exempt from certain requirements in Part 173 of CASR 1998 (instrument CASA EX 61/07).
Until recently, there has been no opportunity for Naverus TIFP to be used by foreign aircraft operating under the IFR in Australian territory. However, this is changing as a result of proposals by Air New Zealand in its own right, and other foreign operators through use of Airservices Australia, to use Naverus designs in Australian territory.
Naverus, therefore, wishes to extend the scope of its design work so that its TIFP may be used by foreign aircraft operating under the IFR in Australian territory. Consequently, Naverus has, applied to CASA to extend its procedure design certificate under Part 173 of CASR 1998 to include use by such foreign aircraft.
For this purpose it is necessary for a new exemption to be issued, revoking the previous exemption (CASA EX61/07) and revising and extending it so that its scope includes TIFP designed for use by a foreign aircraft operating under the IFR in Australian territory. This is, in effect, the only change to the exemption.
On the basis of this exemption it is possible for CASA to re-issue Naverus with a new procedure design certificate and chief designer certificate whose effects are to permit TIFP designs for use by relevant foreign aircraft in Australian territory. (These will replace the previous Naverus certificate, CASA 316/06, and the previous chief designer certificate, CASA 445/06.)
Exemption — for the application
The new exemption instrument, therefore, re-exempts Naverus, as an applicant for a procedure design certificate, from compliance with regulation 173.050 of CASR 1998. These are essentially that the applicant must demonstrate the capacity to meet the requirements of Division 173.B.2 of CASR 1998. However, as Naverus will be exempted from some of these, exemption from this threshold requirement for the application is also required.
Exemption — from requirements to be complied with for designing
The new exemption instrument also re-exempts Naverus from compliance with those aspects of the regulations and the related Manual of Standards (MOS) that refer to ICAO Doc. 8186 (PANS-OPS).
The TIFP in which Naverus specialises is designated as RNAV (RNP-AR), a procedure that is not included in the TIFP listed in the MOS. The instrument, therefore, also re-exempts Naverus from compliance with those aspects of the MOS that refer to the other TIFPs that are not relevant for Naverus purposes.
There is also a re-exemption from the requirements of regulation 173.100 of CASR 1998 to publish a TIFP in the AIP. Normally, TIFPs are published in the AIP to be made available to other operators for the situational awareness of other pilots. However, as RNAV (RNP-AR) TIFPs are authorisation‑required (AR) they may not be used by other operators until CASA is satisfied that they are safe to be used by other operators. This is the rationale behind the Qantas trial mentioned above. In addition, the dynamic or ongoing updating of RNP-AR TIFP makes them unsuitable for publication in the AIP at this stage. For these reasons, publication in the AIP is not required.
Conditions
The exemptions made by the instrument are subject to conditions. These are similar to the conditions that applied under the previous exemption. For example, Naverus must comply with the relevant provisions of Part 173 of CASR 1998 and the MOS from which it is not exempt. Naverus may design only in accordance with both the new procedure design certificate issued to it by CASA, its CASA-approved design criteria and the Naverus operations manual over which CASA has directive control. This means also that Naverus may only design RNAV (RNP-AR) TIFPs and no other forms of TIFP. Designs must be certified by the chief designer and provided to CASA at least 28 days before they are used. They must be clearly marked “FOR CASA-APPROVED OPERATORS ONLY”. The chief designer, all supervisory staff, design staff and design verification staff must be trained in CASA-approved training. The Naverus operations manual must contain the approved design criteria, this instrument and any other CASA directions.
The Naverus safety management system must cover compliance with the safety standards in the design criteria. Responsibility for maintaining an RNAV (RNP-AR) may not be transferred without CASA’s written approval. Naverus must permit inspectors to exercise their powers under the regulations.
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 of this kind 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 been undertaken in this case. The instrument is to enable Naverus to design TIFP for use by foreign aircraft operating under the IFR in Australian territory.
Commencement and making
The instrument commences on the day after it is registered and stops having effect at the end of 31 July 2011.
The exemption has been made by a delegate of CASA, in accordance with subregulation 7 (1) of the Civil Aviation Regulations 1988.
[Instrument number CASA EX68/09]