Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX73/20 — Low-level Rating Exemption 2020
Purpose
CASA EX73/20 — Low-level Rating Exemption 2020 (the instrument) exempts the holder of a low-level rating from certain recent experience (recency) and flight review requirements provided alternative requirements are met.
The exemption is a reissue of CASA EX48/17 that expires on 30 April 2020, with minor technical changes for clarity but no substantive changes.
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and in the interests of the safety of air navigation. Relevantly, the Governor-General has made the Civil Aviation Safety Regulations 1998 (CASR). Part 61 of CASR sets out flight crew licensing requirements.
Regulation 61.1040 of CASR provides that the holder of a pilot licence with a low-level rating is authorised to conduct low-level operations, subject to Subpart 61.E and regulations 61.1045 to 61.1060.
Regulation 61.1055 of CASR makes the exercise of the privileges of a low-level rating subject to a recency requirement. Under subregulation 61.1055 (1), the holder of a low-level rating is authorised to exercise the privileges of the rating only if the holder has, within the previous 6 months, completed at least 2 hours of low-level operations, or been assessed as competent to conduct low-level operations by a flight instructor who holds a low-level training endorsement.
Under subregulation 61.1055 (2), the holder is taken to meet the requirements of subregulation (1) if the holder has successfully completed an operator proficiency check in low-level operations within the previous 6 months, or has successfully completed a flight review for the rating within the previous 6 months.
Regulation 61.1060 of CASR makes the exercise of the privileges of a low-level rating subject to a flight review requirement. The holder of a low-level rating is authorised to exercise the privileges of the rating only if the holder has, within the previous 12 months, successfully completed a flight review for the rating.
Under subregulation 61.1060 (2), the holder is taken to meet the requirements of subregulation (1) if the holder:
(a) has passed a low-level rating flight test within the previous 12 months; or
(b) has passed a low-level endorsement flight test within the previous 12 months (but more than 6 months after passing the rating flight test); or
(c) has successfully completed an aerial application proficiency check within the previous 12 months; or
(d) within the previous 12 months, has successfully completed an operator proficiency check covering operations under the low-level rating or aerial application rating; or
(e) is successfully participating in a relevant operator’s approved training and checking system.
The requirements in regulations 61.1055 and 61.1060 do not distinguish between aerial mustering operations and other low-level operations.
Subpart 11.F of CASR provides for the granting of exemptions from particular provisions of the regulations. Subregulation 11.160 (1) of CASR provides that, for subsection 98 (5A) of the Act, the Civil Aviation Safety Authority (CASA) may grant an exemption from a provision of the regulations.
Under subregulation 11.160 (2), an exemption may be granted to a person or a class of persons, and may specify the class by reference to membership of a specified body or any other characteristic.
Under subregulation 11.160 (3), an exemption may be granted on application by a person or on CASA’s own initiative.
Under subregulation 11.175 (4) of CASR, in deciding whether to reissue an exemption, CASA must regard as paramount the preservation of at least an acceptable level of aviation safety. CASA has regard to the same test when deciding whether to grant an exemption on its own initiative.
Regulation 11.205 of CASR provides that CASA may impose conditions on an exemption if necessary in the interests of the safety of air navigation. Under regulation 11.210, it is a strict liability offence not to comply with the obligations imposed by a condition.
Regulation 11.225 of CASR requires an exemption to be published on the Internet. Under subregulation 11.230 (1) of CASR, the maximum duration of an exemption is 3 years.
Background
Part 61 of CASR commenced on 1 September 2014. Before that, under Civil Aviation Order 29.10 (CAO 29.10), a person authorised for aerial mustering operations had a recency requirement of at least 20 hours in the 12 months before a relevant operation. A flight test could also satisfy the requirement. Not to have such recent experience of an aerial mustering operation was considered unsafe. Because of its inherent dangers, aerial mustering was a special case and other low-level rating operations did not have this requirement, apart from a general requirement to have a current aeroplane or helicopter flight review as applicable to the category of aircraft being operated.
In developing the Part 61 flight review requirements for low-level operations, the differing nature and requirements of rotorcraft and aeroplane operations presented difficulty in determining optimal flight review frequency (or the frequency of flight review equivalents). In the event, 12-monthly flight reviews were considered optimal, although this constituted a change for rotorcraft.
Since 1 September 2014, CASA has had the opportunity to re-examine the safety implications of the recency and flight review requirements for low-level operations in the light of experience and operator feedback and concluded that, in some conditional circumstances, there may be equally effective alternative requirements.
Further consideration has been given to the different levels of safety risk associated with aerial mustering operations as compared to other low-level operations, and the consequential need to have more stringent requirements in place such as checks and recent experience.
CASA decided on its own initiative to issue a conditional exemption for certain low-level operations, to be effective until Part 61 is amended. The first such exemption was issued on 25 May 2015 with a duration of approximately 2 years; see instrument number CASA EX92/15. CASA EX92/15 was remade as instrument number CASA EX48/17 in 2017.
CASA has provided drafting instructions to the Office of Parliamentary Counsel for amendments to Part 61 of CASR to reflect the requirements in CASA EX48/17.
Overview of instrument
The exemption reissues instrument number CASA EX48/17 with minor technical changes for clarity but not substantive changes.
The exemption exempts the holder of a low-level rating from compliance with the requirements of regulations 61.1040 (to the extent that it requires compliance with regulations 61.1055 and 61.1060), 61.1055 and 61.1060, subject to the conditions mentioned in sections 6 and 7 of the instrument.
The exemption in combination with the conditions set out in section 6 has the effect that the recurrence period for the range of options available (a flight review or a flight review equivalent) would be set at 24 months instead of 12 months.
The exemption in combination with the conditions set out in section 7 has the effect that a pilot who is the holder of a low-level rating with an aerial mustering endorsement can carry out aerial mustering operations without the required recent experience but only if the pilot has demonstrated recent competency in aerial mustering, for example through an operator proficiency check or a low-level flight review within the 12 months before the operation.
The 12-month recurrence period for recency is consistent with that which applied for aerial mustering under subsection 11 of CAO 29.10 before 1 September 2014.
CASA has assessed the impact on aviation safety of continuing to grant the exemptions in section 5 of the instrument, subject to the conditions in sections 6 and 7, and is satisfied that it has no adverse impact.
Content of instrument
Section 1 sets out the name of the instrument.
Section 2 sets out the duration of the instrument. The instrument commences on 1 May 2020 and will be repealed at the end of 30 April 2023.
Section 3 sets out definitions used in the instrument.
Section 4 sets out the application of the instrument. The instrument applies to a holder of a pilot licence with a low-level rating.
Section 5 exempts the holder of a pilot licence with a low-level rating from compliance with regulations 61.1040 (to the extent that it requires compliance with regulations 61.1055 and 61.1060), 61.1055 and 61.1060 of CASR, subject to the conditions set out in sections 6 and 7.
Section 6 states that the holder must not exercise the privileges of the low-level rating unless, within 24 months before exercising the privileges, the holder:
(a) has successfully completed a flight review for the rating; or
(b) has passed a flight test for the rating; or
(c) has passed a flight test for the grant of a low-level endorsement (as long as it is more than 6 months after passing the flight test for the rating); or
(d) has successfully completed an aerial application proficiency check under regulation 61.1110 of CASR; or
(e) has successfully completed an operator proficiency check that covers:
(i) operations under the rating; or
(ii) operations under the aerial application rating; or
(f) is successfully participating in an operator’s training and checking system for an operation under the rating, being a system for which the operator holds an appropriate approval under regulation 61.040 of CASR.
Section 7 states that if the low-level rating has an aerial mustering endorsement, the holder must not engage in an aerial mustering operation unless, within 12 months before the operation, the holder has:
(a) completed 20 hours of aerial mustering operations; or
(b) been assessed as competent to conduct aerial mustering operations by a flight instructor who holds a low-level training endorsement; or
(c) successfully completed an operator proficiency check in low-level operations covering aerial mustering operations; or
(d) successfully completed a low-level flight review covering aerial mustering operations.
Legislation Act 2003 (the LA)
Paragraph 98 (5A) (a) of the Act provides that CASA may issue instruments in relation to matters affecting the safe navigation and operation or the maintenance of aircraft. Additionally, paragraph 98 (5AA) (a) of the Act provides that an instrument issued under paragraph 98 (5A) (a) is a legislative instrument if the instrument is expressed to apply in relation to a class of persons. The instrument exempts a class of persons from complying with the provisions in regulations 61.1040, 61.1055 and 61.1060 of CASR, being the holder of a pilot licence with a low-level rating. The instrument is, therefore, a legislative instrument, and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
Aviation industry participants supported the renewal of the exemption in CASA EX48/17 at Technical Working Group meetings held in November 2019 and March 2020. CASA has not undertaken any further consultation in relation to the instrument as the instrument is a reissuing of rules which have previously been consulted about and have not been altered. Reissuing the exemption will ensure that continued relief is provided in relation to the particular low-level rating requirements in the absence of the making of the proposed amendments to Part 61 to give effect to the policy within the CASR. The proposed amendments to Part 61 have been temporarily delayed due to CASA focusing on its COVID‑19 response.
In these circumstances CASA is satisfied that no further consultation is appropriate or reasonably practicable for this instrument for section 17 of the LA.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required in this case, as the exemption is covered by a standing agreement between CASA and OBPR under which a RIS is not required for exemptions (OBPR id: 14507).
Statement of Compatibility with Human Rights
The Statement of Compatibility with Human Rights at Attachment 1 has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The instrument does not engage any of the applicable rights or freedoms, and is compatible with human rights, as it does not raise any human rights issues.
Making and commencement
The instrument has been made by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR.
The instrument commences on 1 May 2020 and is repealed at the end of 30 April 2023.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX73/20 — Low-level Rating Exemption 2020
The 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 instrument exempts aircraft pilots with a rating that authorises low-level operations from certain recent experience and flight review requirements provided alternative requirements are met. The instrument is a reissue of CASA EX48/17 with minor technical changes for clarity but no substantive changes.
Human rights implications
The instrument does not engage any of the applicable rights or freedoms.
Conclusion
The instrument is compatible with human rights as it does not raise any human rights issues.
Civil Aviation Safety Authority