Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — from holding an aerial application rating for aerial baiting operations and from Part 137 of CASR 1998
Purpose
The purpose of the instrument is to exempt operations for feral animal aerial baiting from certain pilot qualification and operator requirements set out in Parts 61 and 137 of the Civil Aviation Safety Regulations 1998 (CASR 1998) and Part 11 of the Civil Aviation Regulations 1988 (CAR 1988) with respect to compliance with Civil Aviation Order (CAO) 20.21.
An operator taking advantage of the instrument will be required to hold an air operator’s certificate (AOC), but not comply with Part 137. Provided that the operator’s AOC authorises dropping operations, a pilot who is working for the operator may conduct aerial baiting operations below 500 ft if the pilot holds a low‑level rating.
Legislation
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. Subsection 98 (5A) of the Act provides that the regulations may empower CASA to issue instruments in relation to matters affecting the safe navigation and operation of aircraft.
Subregulation 11.160 (1) of CASR 1998 provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the regulations or a CAO in relation to a matter mentioned in that subsection. Under subregulation 11.160 (2), an exemption may be granted to a person, or to a class of persons, and may specify the class by reference to membership of a specified body or any other characteristic.
Under subregulation 11.205 (1) of CASR 1998, CASA may impose conditions on an exemption if this is necessary in the interests of the safety of air navigation. 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 3 years after its commencement) or, if no day is specified, 3 years after commencement.
Aerial baiting operations
Aerial baiting operations are 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”. Aerial baiting operations are also an aerial application operation within the meaning of Part 137 of CASR 1998, being a flight to apply application material. Regulation 137.010 of CASR 1998 defines application material as “fertiliser, trace elements, seeds, baits, water, pesticides or other material”. Some aerial baiting operations will involve elements of both definitions.
Aerial application rating
Flight crew licensing was previously regulated under Part 5 of CAR 1988. Under paragraph 5.01 (2) (a) and regulation 5.14 of CAR 1988, and CAO 40.6, a pilot conducting an agricultural operation or aerial application operation must hold an agricultural pilot (aeroplane) rating, or an agricultural pilot (helicopter) rating, if applicable.
On 1 September 2014, new arrangements dealing with flight crew licensing commenced under Part 61 of CASR 1998. These arrangements replaced the previous regulatory framework under Part 5 of CAR 1988. What was previously an agricultural rating is now referred to, under regulation 61.010 of CASR 1998, as an aerial application rating.
Under subregulation 61.065 (1) of CASR 1998, the holder of a flight crew licence commits an offence if the holder conducts an activity mentioned in Part 61 while, among other things, piloting a registered aircraft, and the holder is not authorised under Part 61 to conduct the activity.
Under subregulation 61.375 (7) of CASR 1998, the holder of a pilot licence is authorised to conduct an activity mentioned in Table 61.375 only if the holder also holds the rating mentioned for that activity. Item 5 of Table 61.375 states that for a low-level operation activity, the required rating is either a low-level rating or an aerial application rating. Item 6 of Table 61.375 states that for an aerial application operation below 500 ft above ground level, the required rating is an aerial application rating.
Subpart 61.R of CASR 1998 deals with aerial application ratings. Regulation 61.1100 provides that the holder of a pilot licence with an aerial application rating is authorised to conduct the activity mentioned in Table 61.1120, only if the holder also holds the corresponding endorsement mentioned in Table 61.1120.
Under regulation 61.1115, the applicant for an aerial application rating must, among other things, hold a commercial pilot licence or an air transport pilot licence and have passed the flight test mentioned in the Part 61 Manual of Standards for the aerial application rating.
Low-level rating
Subpart 61.Q of CASR 1998 deals with low-level ratings. Regulation 61.1050 provides that the holder of a pilot licence with a low-level rating is authorised to conduct an activity mentioned in Table 61.1075, only if the holder also holds the corresponding endorsement mentioned in Table 61.1075.
Table 61.1075 sets out, in column 3, the requirements for the corresponding endorsement. For Item 1 of Table 61.1075 (aeroplane low-level endorsement) allowing the holder to conduct a low-level operation in an aeroplane, the holder must have an aeroplane category rating and at least 5 hours of dual flight in an aeroplane while receiving training in low-level operations. For Item 2 of Table 61.1075 (helicopter low-level endorsement) allowing the holder to conduct a low-level operation in a helicopter, the holder must have a helicopter category rating and at least 5 hours of dual flight in a helicopter while receiving training in low-level operations.
Under regulation 61.1070, the applicant for a low-level rating must, among other things, hold a private pilot licence, a commercial pilot licence or an air transport pilot licence. Subregulation 61.1070 (3) provides that the holder of an aerial application rating is taken to meet the requirements for the grant of, and to have applied for, a low-level rating.
Dropping operations
Under regulation 150 of CAR 1988, contained in Part 11 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). CASA has issued dropping directions in CAO 29.5. However, these directions are expressed not to apply to aircraft engaged in agricultural or aerial application operations or training for such 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 ft. 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 29.5 includes a general low-flying permission for operations conducted in accordance with the CAO.
Instrument
The instrument would have the effect of replacing CASA EX70/15 which is expressed to expire, as though repealed by another instrument, at the end of April 2016.
The instrument would exempt pilots in command from the requirement to hold an aerial application rating (formerly an agricultural pilot rating) under regulation 61.375 (7) of CASR 1998, for the purpose of conducting aerial application operations under 500 ft. It would also exempt the pilot in command from subregulation 61.065 (1) of CASR 1998, being a general requirement that the holder of a flight crew licence must be authorised under Part 61 to conduct an activity. This means that under this exemption, pilots in command and operators may conduct aerial baiting operations below 500 ft without the pilot holding an aerial application rating. The requirement to hold an aerial application rating does not apply if aerial baiting operations are conducted above 500 ft, however, the instrument is required to apply to aerial baiting operations conducted above 500 ft as Part 137 of CASR 1998 applies to application operations which have no upper height limit.
The instrument would also exempt the pilot in command of an aerial baiting operation from compliance with directions applicable to agricultural operations issued under subregulation 150 (2) (a) (i) of CAR 1988 and CAO 20.21. Pilots and operators of aeroplanes conducting aerial baiting operations will also be exempt from all of Part 137 of CASR 1998. Part 137 requires a pilot to be trained in low flying and the delivery of application materials before conducting any aerial baiting operations. However, aerial bating operations are not always conducted at a low level. Furthermore, aerial baiting does not have the same risk profile as the aerial application of application materials such as dispersing pesticides, fertilizers and similar substances.
CASA considers that, provided alternative safety risk mitigators are in place and relevant processes are set out in the operator’s operations manual, aerial baiting does not require the pilot in command or the 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.
However, there are key differences under the new Part 61 of CASR 1998 framework compared to the previous Part 5 of CAR 1988 framework, which also mean changes to how this instrument will operate. Part 61 has more specific rating requirements, in the interests of aviation safety, that licence holders must meet before being granted a low‑level rating or an aerial application rating. By exempting pilots from the requirement to hold an aerial application rating, the pilots and operators are subject to conditions that CASA has imposed in the interests of aviation safety.
The pilot exemptions in sections 4 and 5 of the instrument are subject to the condition in section 7 that, for an operation below 500 ft, the operator for whom the pilot is flying must have a general (that is, a dropping authorisation in the operator’s AOC) or specific permit from CASA permitting aerial work in the form of aerial baiting below 500 ft. The pilot must also hold a low-level rating in accordance with Subpart 61.Q of CASR 1998 for the category of aircraft being operated. Meeting the requirements for the grant of a low‑level rating is less onerous, in terms of flight time requirements, than meeting the requirements for the grant of an aerial application rating (for which this instrument provides an exemption). Pilots who previously completed low-level training under Part 5 of CAR 1988 were transitioned across to hold the equivalent low-level rating under Part 61 of CASR 1998 on 1 September 2014. New pilots who intend to take advantage of this instrument will be required to complete low-level training as previously required under CAO 29.5 and to now apply for a low-level rating under Part 61 of CASR 1998.
The operator exemption in section 6 of the instrument is subject to conditions in Schedule 1. 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.
The instrument includes risk management procedures, which have been included in the conditions, to clarify the operator’s obligations with regard to relevant procedures. Paragraph 3 (e) of Schedule 1 includes a requirement to ensure that pilots hold a low‑level rating for the category of aircraft being operated, before conducting an aerial baiting operation below 500 ft. Clause 1 of Schedule 1 also specifies a condition that, for an operation below 500 ft, the operator must have a general or specific permit from CASA permitting aerial work in the form of aerial baiting below 500 ft, consistent with the requirements of CAO 29.5.
The instrument would require the operator to ensure that records in relation to the risk management processes identified in clause 4 of Schedule 1 are kept for at least 5 years and made available to CASA for inspection and audit.
The exemption will be in force for a period of 3 years. It is expected that during this time the operators will have completed transition to Part 137 or Part 138 in which this activity can be carried out as an aerial work dispensing operation. CASA will also, during this period, consider amending Part 61 or Part 137 to remove the requirement that a pilot engaged in baiting operations hold an aerial application rating, or to dis-apply Part 137 to baiting operations and allow this activity to continue under Part 138 of CASR 1998.
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. 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, being operators and pilots in command of aircraft that conduct aerial baiting operations. The exemption is, therefore, a legislative instrument and it is subject to tabling and disallowance in the Parliament under the LA.
Consultation
Industry has requested that instrument CASA EX70/15 be renewed in order to continue CASA’s policy in relation to aerial baiting operations until Part 138 of CASR 1998 is made and Part 137 post-implementation review has been completed. Part 138 has been extensively consulted with industry via aerial work specific consultation meetings and via a publically released Notice of Proposed Rulemaking (NPRM 1519OS).
Given the commencement of Part 61 of CASR 1998, which replaced Part 5 of CAR 1988 on 1 September 2014, the instrument reflects CASA’s continued approach to exempting pilots and operators of aircraft conducting aerial baiting from the requirement to hold an aerial application rating or to comply with agricultural operations directions issued by CASA under CAO 20.21 or to comply with aerial application requirements for aeroplanes under Part 137 of CASR 1998.
Pilots who previously operated below 500 ft before the introduction of Part 61 were required to complete low-level training. The transitional provisions of Part 61 recognise this previous training and operational experience and deem the pilot to hold a low-level rating with low-level endorsement under Part 61. New pilots seeking to operate below 500 ft and conduct aerial baiting operations in accordance with this exemption would be required to attain a low-level rating with low-level endorsement under Part 61. As this is a continuance of CASA policy to this type of operation updated to take account of the introduction of Part 61, it is CASA’s view that it is not necessary or appropriate to undertake any further consultation under paragraph 15J (2) (d) and (e) of the LA.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required because the instrument is covered by a standing agreement between CASA and OBPR under which a RIS is not required (OBPR id: 14507).
Making and commencement
The exemption has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
The exemption commences on 1 May 2016 and expires at the end of April 2019, as if it had been repealed by another instrument.
[Instrument number CASA EX69/16]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — from holding an aerial application rating for aerial baiting operations and from Part 137 of CASR 1998
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 the legislative instrument is to exempt operations for feral animal aerial baiting from certain pilot qualification and operator requirements set out in Parts 61 and 137 of the Civil Aviation Safety Regulations 1998 and Part 11 of the Civil Aviation Regulations 1988. Under this instrument, pilots and operators will be allowed to conduct aerial baiting operations below 500 ft, being aerial application operations, without the pilot holding an aerial application rating.
The instrument would have the effect of replacing CASA EX70/15 which expired at the end of April 2016. The exemption is subject to conditions that CASA has imposed in the interests of aviation safety.
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