Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — operations without an approved digital flight data recorder
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations. Under subsection 98 (5A) of the Act, the regulations may empower the Civil Aviation Safety Authority (CASA) to issue instruments in relation to matters affecting the safe navigation and operation, maintenance, and airworthiness of aircraft, and design standards for aircraft.
Subregulation 207 (2) of the Civil Aviation Regulations 1988 (CAR 1988) provides that an Australian aircraft must not be used in any class of operations unless it is fitted with such instruments and is fitted with or carries such equipment, including emergency equipment, as CASA approves or directs.
Subregulation 5 (1) of CAR 1988 provides that whenever CASA is empowered by CAR 1988 to give directions or approvals, it may do so in Civil Aviation Orders (the CAOs).
Civil Aviation Order 20.18 (CAO 20.18) sets out instruments and equipment required for Australian aircraft engaged in certain classes of operations. Subsection 6 of CAO 20.18 requires installation of flight data recorders (FDRs) on certain types of aircraft and that FDRs must comply with the requirements of Civil Aviation Order 103.19 (CAO 103.19). Appendix I of CAO 103.19 sets out the parameters, ranges, accuracy and recording intervals for FDRs.
Before it was repealed on 27 June 2011, subregulation 21A (1) of CAR 1988 allowed CASA to issue a design standard for an aircraft component for which no appropriate design standard was in force. CAO 103.19 was made under subregulation 21A (1) of CAR 1988 before 27 June 2011. By operation of subregulation 202.049A of the Civil Aviation Safety Regulations 1998 (CASR 1998), from 27 June 2011 onwards, CAO 103.19 is taken to be an applicable airworthiness standard for regulation 21.017 of CASR 1998.
Exemption
Subregulation 11.160 (1) of CASR 1998 allows CASA to grant an exemption from compliance with a provision of CAR 1988, CASR 1998 or the CAOs in relation to a matter mentioned in subsection 98 (5A) of the Act.
National Jet Express Pty Ltd, trading as Cobham Aviation Services Australia – Regional Services (the operator), operates aircraft which do not fully comply with CASA regulations because the aircraft had only to comply with United Kingdom regulations at the time of manufacture. At certain altitudes, the FDR records at 2 second intervals, instead of 1 second intervals as required by CAO 103.19. CASA has issued an exemption as the operator and manufacturer of the aircraft cannot provide viable service bulletins and kits to modify the aircraft. In addition to the CAO requirements, this instrument mandates compliance with the United Kingdom Civil Aviation Authority FDR standard as current at the time of aircraft manufacture.
This instrument revokes and replaces CASA 51/11. This instrument correctly identifies the altitudes at which the FDR records at 2 second intervals, instead of 1 second intervals, as being between 14 000 ft and 14 600 ft, and between 29 400 ft and 30 600 ft. It also takes account of amendments to CAR 1988 and CASR 1998 that took effect on 27 June 2011, including the repeal of regulations 21A and 308 of CAR 1988.
Legislative Instruments Act
Under regulation 5A of CAR 1988, if CASA has issued a direction in the form of a CAO and later issues another direction or an exemption which has the effect of amending, repealing, or otherwise affecting the operation of, anything in the CAO, the later instrument is a disallowable instrument. This instrument affects the operation of subsection 6 of CAO 20.18 and Appendix I of CAO 103.19. 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. As a legislative instrument, this instrument 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 was undertaken with the Australian Transport Safety Bureau, which agreed to the issue of CASA 51/11. No consultation under section 17 of the LIA was undertaken in relation to this instrument as it merely corrects a reference to an altitude that appeared in CASA 51/11 and makes other minor technical changes. The instrument is for a particular operator and mandates compliance with the recording of additional parameters in lieu of the standard published in CAO 103.19.
The instrument commences on the day after registration and stops having effect at the end of 30 September 2012.
The instrument has been issued by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
[Instrument number CASA EX71/11]
Overview
The Civil Aviation Safety Regulations 1998, as amended by F2011L01534, address the problem of aircraft operated by National Jet Express Pty Ltd, trading as Cobham Aviation Services Australia – Regional Services, which do not fully comply with the Civil Aviation Safety Regulations 1998 and associated Civil Aviation Orders due to the aircraft being manufactured to meet United Kingdom regulations. These regulations require flight data recorders (FDRs) that do not meet the Australian requirements for recording intervals at specific altitudes. This discrepancy arose because the aircraft were manufactured when the Australian regulations did not exist in their current form. The instrument provides an exemption from compliance with certain provisions of the Civil Aviation Safety Regulations 1998 and associated Civil Aviation Orders for the specified operator, allowing operations to continue without the need for modifications that would render the aircraft non-viable for service. The policy objective is to ensure the safety of air navigation and aircraft operations while recognising the practical constraints faced by the operator in modifying their aircraft to meet current Australian standards. The instrument was enacted by the Civil Aviation Safety Authority (CASA) in accordance with its powers under the Civil Aviation Act 1988.
Scope and Application
The Civil Aviation Safety Regulations 1998 provide a framework for ensuring the safe navigation and operation of aircraft in Australia. Section 98 of the Civil Aviation Act 1988 allows the Governor-General to make regulations concerning the safe navigation and operation, maintenance, and airworthiness of aircraft, as well as design standards for aircraft. These regulations are enforced by the Civil Aviation Safety Authority (CASA) through Civil Aviation Orders (CAOs) and other instruments. Subregulation 207(2) of the Civil Aviation Regulations 1988 requires that Australian aircraft used in certain operations must be fitted with instruments and equipment approved by CASA. However, subregulation 11.160(1) of the Civil Aviation Safety Regulations 1998 allows CASA to grant exemptions from these requirements if compliance is not feasible. This is applicable to specific operators like National Jet Express Pty Ltd, trading as Cobham Aviation Services Australia, whose aircraft do not fully comply with Australian standards due to their initial compliance with United Kingdom regulations. CASA has issued an exemption as the operator and manufacturer cannot provide viable service bulletins and kits to modify the aircraft. This instrument revokes and replaces CASA 51/11, correcting technical errors and ensuring compliance with current standards. It is subject to tabling and disallowance in Parliament under the Legislative Instruments Act 2003.
Key Provisions
The Civil Aviation Safety Regulations 1998, specifically under subregulation 11.160 (1) of CASR 1998, empower the Civil Aviation Safety Authority (CASA) to grant exemptions from compliance with certain provisions of the Civil Aviation Regulations 1988 (CAR 1988), the Civil Aviation Safety Regulations 1998 (CASR 1998), or Civil Aviation Orders (CAOs). In this instance, the exemption pertains to an operation conducted by National Jet Express Pty Ltd, trading as Cobham Aviation Services Australia – Regional Services, which involves aircraft that do not fully comply with CASA's requirements because they were originally designed to meet United Kingdom regulations. Specifically, the flight data recorders (FDRs) on these aircraft record data at 2-second intervals instead of the required 1-second intervals as stipulated by CAO 103.19, particularly at certain altitudes. CASA has issued this exemption as it is not feasible for the operator and manufacturer to provide modifications to the aircraft. Additionally, the exemption mandates that the FDRs must comply with the United Kingdom Civil Aviation Authority standard as it was at the time of manufacture.
The obligations imposed by this Act on the parties governed include ensuring that any aircraft operated under the exemption adheres to the specified conditions outlined in the exemption. The operator must ensure that the FDRs on their aircraft comply with the United Kingdom standards and that all other operational requirements are met to the extent possible. The manufacturer must provide any available documentation or guidance to support compliance with the exemption. CASA, as the regulatory authority, is responsible for monitoring compliance with the exemption and ensuring that the safety standards are maintained.
There are no specific offences or penalties outlined in this instrument for breaches of the exemption. However, any non-compliance with the conditions of the exemption could potentially lead to further regulatory action by CASA, including the possibility of the exemption being revoked. Such revocation would necessitate that the aircraft either be modified to comply with the FDR requirements or be grounded until compliance is achieved. Additionally, CASA may take enforcement action under the Civil Aviation Act 1988 if non-compliance is deemed to pose a significant risk to aviation safety. The potential consequences of such actions could include fines, suspension of operations, or other regulatory penalties as deemed appropriate by CASA.