Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — aeronautical experience for an NVIS rating or endorsement
Purpose
The central purpose of this instrument is to exempt applicants for a night vision imaging system (NVIS) rating or endorsement from the requirement under Part 61 of the Civil Aviation Safety Regulations 1998 (CASR 1998) to have at least 20 hours of flight time at night as pilot in command (PIC) of a helicopter. To achieve the central purpose, there are additional consequential exemptions.
Part 61 replaced the aspects of Civil Aviation Order (CAO) 82.6 dealing with authorisation to use night vision goggles (NVG). Before Part 61 commenced on 1 September 2014, the specific requirement for use of NVG under the CAO was for 20 hours of unaided flight time at night as a helicopter pilot, of which 10 were to be as PIC or co-pilot in a helicopter. (Unaided means without the use of NVG or an NVIS.)
In the light of experience, and feedback from the aviation industry, CASA now considers that the additional PIC requirement is erroneous and unnecessary, provided an applicant has at least 20 hours of unaided aeronautical experience at night as pilot of a helicopter.
Legislation — CASR Part 61
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and the safety of air navigation.
Part 61 of CASR 1998 sets out flight crew licensing requirements. (References below to provisions that commence with the numerals “61” are to Part 61 of CASR 1998.)
Under paragraph 61.165 (c), CASA, or an examiner or a CASA approval holder must grant a flight crew rating to an applicant if he or she meets, among other things, the requirements mentioned in Part 61 for the grant of the rating.
Under paragraph 61.170 (c), relevantly, CASA, or an examiner, or a CASA approval holder must grant a flight crew endorsement to an applicant if he or she meets, among other things, the requirements mentioned in Part 61 for the grant of the endorsement.
Under subparagraph 61.235 (4) (a) (iii), an applicant for a flight crew rating is eligible to take a flight test for the rating only if a person mentioned in subregulation 61.235 (5), (6) or (7) has certified in writing that the applicant has, among other things, met the aeronautical experience requirements for the rating. These persons are an approval holder, or the head of operations or another responsible flight trainer in a Part 141 or Part 142 operator (these are flight training organisations).
Under regulation 61.240, an applicant for a flight crew rating is taken not to have passed a flight test if, when the applicant took the flight test, he or she was not eligible under regulation 61.235 to take the flight test.
Under paragraph 61.1020 (b), an applicant for an NVIS rating must, among other things, meet the requirements for the grant of at least 1 NVIS endorsement.
Regulation 61.1025 sets out the requirements for holding a Grade 1 or a Grade 2 NVIS endorsement, including, among other things, the requirement to have at least 20 hours of (unaided) flight at night as PIC in a helicopter.
Under paragraph 61.1035 (2) (b), an applicant for an NVIS endorsement must, among other things, meet the aeronautical experience requirements mentioned in regulation 61.1025, in particular the requirement to have at least 20 hours of (unaided) flight at night as PIC in a helicopter.
Under subparagraph 61.1035 (4) (b) (ii), an applicant for an NVIS endorsement must hold at least half of the 20 hours of (unaided) flight at night as PIC in a helicopter before embarking on the required 5 hours of dual flight using NVG.
Under subparagraph 61.1300 (4) (b) (iii), a flight examiner commits an offence if the examiner conducts a flight test for a rating or endorsement on a pilot licence and when the test begins, the examiner is not satisfied that the applicant has met the aeronautical experience requirements for the rating or endorsement.
Under paragraph 141.210 (1) (b), a Part 141 operator and the operator’s head of operations (HOO) each commit an offence if a person is recommended for a flight test by the HOO or a person named in the operator’s operations manual as responsible for the authorised Part 141 flight training to which the flight test relates, and the person is not eligible under regulation 61.235 to undertake the test.
Under paragraph 142.245 (1) (b), a Part 142 operator and the operator’s HOO each commit an offence if a person is recommended for a flight test by the HOO or a person named in the operator’s operations manual as responsible for the Part 142 activity to which the flight test relates, and the person is not eligible under regulation 61.235 to undertake the test.
Legislation — exemptions
Subpart 11.F of CASR 1998 deals with exemptions. Under subregulation 11.160 (1), and for subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from a provision of CASR 1998 in relation to a matter mentioned in subsection 98 (5A). Subsection 98 (5A) matters are, in effect, those affecting the safety, airworthiness or design of aircraft.
Under subregulation 11.160 (2), an exemption may be granted to a person or a class of persons. Under subregulation 11.160 (3), CASA may grant an exemption on application, or on its own initiative. For an application for an exemption, CASA must regard as paramount the preservation of an acceptable level of safety.
For making a decision on its own initiative, CASA is guided by the requirement in subsection 9A (1) of the Act that in exercising its powers and functions CASA must regard the safety of air navigation as the most important consideration.
Under regulation 11.205, 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. Under regulation 11.225, CASA must, as soon as practicable, publish on the Internet details of all exemptions under Subpart 11.F.
Under subregulation 11.230 (1), an exemption (but not an exceptional circumstances exemption for regulation 11.185 about major emergencies) may remain in force for 3 years or for a shorter period specified in the instrument.
Under subregulation 11.230 (3), an exemption, in force in relation to a particular aircraft owned by a particular person, ceases to be in force when the aircraft ceases to be owned by that person. Under regulation 11.235, an exemption is not transferable (as between operators, aircraft etc.).
Background
As mentioned above, before Part 61 commenced on 1 September 2014, 10 hours of flight time at night in a helicopter as PIC or co-pilot, as the case may be, was part of the aeronautical experience requirement for use of NVG under CAO 82.6. In transitioning to Part 61, it had not been intended that the flight time at night, and specifically as PIC, should be increased.
CASA has re-examined the general requirement for PIC experience at night as against experience regardless of pilot role, to determine whether the former might in fact add significantly to aviation safety in the use of NVIS. CASA has concluded that it does not add significantly to aviation safety. The previous requirement for at least 20 hours of flight time at night, with at least 10 hours as PIC is not regarded as a significant safety enhancement as against 20 hours pilot, that is non-role specific, experience.
This opinion has been arrived at after considering feedback from industry as well as the overall Grade 1 and Grade 2 NVIS rating and endorsement aeronautical experience requirements as set out in regulation 61.1025. For both the Grade 1 and Grade 2 NVIS endorsements, in addition to a quantum of unaided flight time at night in a helicopter, the following are required:
- at least 250 hours of flight time in a helicopter
- at least 5 hours of dual flight using NVG in a helicopter
- at least 20 hours of instrument time, including 5 hours of dual instrument flight time in a helicopter
- hold a helicopter night VFR endorsement.
For the higher level Grade 1 NVIS endorsement, an instrument rating is also required (but not for the Grade 2 NVIS endorsement).
CASA is satisfied that an exemption from the current Part 61 requirement for 20 hours of flight time at night as PIC in a helicopter, subject to the condition of having 20 hours of aeronautical experience at night as pilot in a helicopter, would preserve an acceptable level of aviation safety. Consideration has also been given to permitting full-flight simulators to be used to acquire unaided night flying experience. CASA is satisfied that simulator experience can be used as long as a pilot has at least 9 hours of flight time at night in helicopters. Safety in such a matter is the most important consideration.
The exemption
To achieve this outcome, the exemption is necessarily somewhat technical in identifying relevant provisions of Part 61 and formulating exemptions from them to the extent necessary. Consequently, the details of the provisions of the exemption are set out in Appendix 1. The 9 individual exemptions in section 4 of the instrument use interpolated italic text to explain, in simplified form, the effect of each provision from which a relevant person is exempted. This simplified text is not part of the instrument.
As noted above, under paragraphs 61.165 (c) and 61.170 (c), CASA, an examiner, or an approval holder (as the case requires), must grant a (NVIS) flight crew rating or endorsement to an applicant if he or she meets, among other things, the requirements mentioned in Part 61 for the grant of the (NVIS) rating or endorsement. The exemptions in subsections 4 (1) and 4 (2) of the exemption instrument are not expressed to apply to CASA as such, because it is not expected that CASA, rather than examiners or approval holders (as the case requires) will be involved in granting these ratings or endorsements. It is possible that, in urgent circumstances, a CASA employee, who is an examiner or approval holder (as the case requires), would act under the exemption if necessary.
(Although paragraph 61.170 (c) also refers to “instructors” granting endorsements, this class is not relevant for the exemption instrument because the effect of paragraph 61.150 (3) (c) is that instructors may only grant design feature and flight activity endorsements, not NVIS endorsements.)
Duration
The exemption is expressed to operate until the end of 31 August 2018. It is expected that before the exemption is repealed, appropriate amendments will have been made to Part 61 of CASR 1998 to reflect the intent of the exemption and, thereby, make its continuation unnecessary.
Legislation Act 2003 (the LA)
As noted above, exemptions under Subpart 11.F of CASR 1998 are “for subsection 98 (5A)” of the Act, that is, for regulations which empower the issue of certain instruments, like exemptions, in relation to “(a) matters affecting the safe navigation and operation, or the maintenance, of aircraft”, and “(b) the airworthiness of, or design standards for, aircraft”.
The exemption instrument is clearly one in relation to matters affecting the safe navigation and operation of aircraft. Under subsection 98 (5AA) of the Act, an exemption issued under paragraph 98 (5A) (a), for such matters, is a legislative instrument if expressed to apply in relation to a class of persons, a class of aircraft or a class of aeronautical products (as distinct from a particular person, aircraft or product).
The exemption instrument applies to classes of persons (applicants, examiners, approval holders) and is, therefore, a legislative instrument subject to registration, and tabling and disallowance in the Parliament, under sections 15G, and 38 and 42, of the LA.
Consultation
CASA considers that exemptions from regulatory requirements are beneficial for those to whom they apply, who voluntarily elect to take advantage of them, and who comply with their conditions. In this context, CASA considers that it is rarely necessary to engage in extensive public consultation on a proposed exemption. However, except in urgent circumstances, it is CASA’s policy to consult in an appropriate way with those parts of the aviation industry most likely to avail themselves of, or be affected by, an exemption so that they may have the opportunity to comment on the possible or likely terms, scope and appropriateness of the exemption.
In this case, in April and May 2016, CASA consulted with the Australian Helicopter Industry Association, and helicopter operators involved in NVG operations. Separate online forum discussions were conducted with the Industry Advisory Panel and the Standards Consultative Committee’s Flight Crew Licensing Subcommittee. Support was given to the proposal which is reflected in the exemption.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required because the exemption instrument is covered by a standing agreement between CASA and OBPR under which a RIS is not required for an exemption (OBPR id: 14507).
Statement of Compatibility with Human Rights
The Statement in Appendix 2 is 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 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 the day after registration and is repealed at the end of 31 August 2018.
[Instrument number CASA EX77/16]
Appendix 1
Exemption — aeronautical experience for an NVIS rating or endorsement
1 Duration
Under this section, the instrument commences on the day after registration, and is repealed at the end of 31 August 2018.
2 Definitions
This section provides essential definitions. In particular, 20 night hours PIC requirement means the requirement in paragraph 61.1035 (2) (b) of CASR 1998 that an applicant for an NVIS endorsement must have at least 20 hours of flight time at night as pilot in command of a helicopter.
Also, this section provides that a reference to a provision that includes the numeral 61 is a reference to the provision in Part 61 of CASR 1998.
3 Application
Under this section, the instrument is expressed to apply, according to its terms, to the persons or organisations listed who are the recipients of the benefit of the exemption, namely, applicants for NVIS ratings or endorsements, relevant examiners and approval holders, relevant Part 141 and Part 142 operators, relevant heads of operations and responsible flight trainers.
4 Exemptions
Section 4 lists the 9 individual exemptions that make up the instrument in order to achieve its purpose.
(1)Under this subsection, an examiner and an approval holder are each exempt from paragraph 61.165 (c) (to grant a rating to an applicant, the applicant must meet the requirements of Part 61 for the rating) — but only to the extent of the 20 night hours PIC requirement that would otherwise arise under paragraph 61.1020 (b) for the grant of an NVIS rating to an applicant (an applicant for an NVIS rating must meet the requirements for an NVIS endorsement).
(2)Under this subsection, an examiner and an approval holder are each exempt from paragraph 61.170 (c) (to grant an endorsement to an applicant, the applicant must meet the requirements of Part 61 for the endorsement) — but only to the extent of the 20 night hours PIC requirement that would otherwise arise under paragraph 61.1035 (2) (b) for the grant of an NVIS endorsement to an applicant (an applicant for an NVIS endorsement must meet the aeronautical experience requirements for an NVIS endorsement mentioned in column 3 of table 61.1025).
(3)Under this subsection, an applicant for an NVIS rating with an NVIS endorsement is exempt from subparagraph 61.235 (4) (a) (iii) (eligibility to take a flight test for a rating only if a Part 141 or 142 HOO, or a Part 141 or 142 flight trainer, or a Part 141 or 142 approval holder certifies that aeronautical experience requirements for the rating are met) — but only to the extent of the 20 night hours PIC requirement that would otherwise arise under paragraph 61.1020 (b) for the grant of an NVIS rating to the applicant.
(4)Under this subsection, an applicant for an NVIS rating or endorsement is exempt from regulation 61.240 (applicant taken not to have passed a flight test if not eligible for it under regulation 61.235) — but only to the extent of the 20 night hours PIC requirement that would otherwise arise under paragraph 61.1020 (b) or 61.1035 (2) (b) for the applicant’s eligibility for a flight test for the rating or endorsement.
(5)Under this subsection, an applicant for an NVIS rating is exempt from paragraph 61.1020 (b) (an applicant for an NVIS rating must meet the requirements for an NVIS endorsement) — but only to the extent of the 20 night hours PIC requirement that would otherwise arise under paragraph 61.1020 (b) for the grant of the rating to the applicant.
(6)Under this subsection, an applicant for an NVIS endorsement is exempt from paragraph 61.1035 (2) (b) (an applicant for an NVIS endorsement must meet the aeronautical experience requirements for an NVIS endorsement, mentioned in column 3 of table 61.1025) — but only to the extent of the 20 night hours PIC requirement that would otherwise arise under paragraph 61.1035 (2) (b) for the grant of the endorsement to the applicant.
(7)Under this subsection, an applicant for an NVIS endorsement is exempt from subparagraph 61.1035 (4) (b) (ii) (the applicant must have completed at least half of the 20 night hours PIC requirement before starting the 5 hours dual flight using night vision goggles under paragraph 61.1035 (2) (d)).
(8) Under this subsection, an examiner is exempt from subparagraph 61.1300 (4) (b) (iii) (an examiner would commit an offence if he or she conducts a flight test for a rating or endorsement without being satisfied, when the test begins, that the applicant has met the aeronautical experience requirements for the rating or endorsement) — but only to the extent that the absence of satisfaction exclusively concerns the 20 night hours PIC requirement that arises under paragraph 61.1020 (b) or 61.1035 (2) (b) for an applicant for an NVIS rating or endorsement.
(9)Under this subsection, a Part 141 operator and a Part 142 operator, and their respective Part 141 and 142 HOOs, are each exempt from paragraphs 141.210 (1) (b) and 142.245 (1) (b), as applicable (an offence would be committed by the relevant operator and its HOO if a person were recommended for a flight test and the person was not eligible under regulation 61.235 to take the test) — but only to the extent that a recommended person’s (the applicant’s) lack of eligibility to undertake a flight test is caused exclusively by the absence of the 20 night hours PIC requirement that arises under subparagraph 61.235 (4) (a) (iii) and paragraphs 61.1020 (b) and 61.1035 (2) (b) for an applicant for an NVIS rating or endorsement.
5 Conditions
(1)Under this section, the 9 exemptions mentioned above are made subject to compliance with the following specific safety conditions.
(2)Under this subsection, it is a condition of each exemption that the applicant must have completed at least 20 hours of unaided aeronautical experience at night as pilot of a helicopter (relevant experience).
(3)Under this subsection, not more than 11 hours of the 20 hours may be completed in an approved flight simulator for the purpose of completing relevant experience.
(4)Under this subsection, a relevant Part 141 or 142 HOO, or Part 141 or 142 flight trainer, or Part 141 or 142 approval holder, must certify in writing that the applicant has completed at least 20 hours of unaided flight time at night as pilot of a helicopter, of which not more than 11 hours may be completed in an approved flight simulator.
Appendix 2
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — aeronautical experience for an NVIS rating or endorsement
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 central purpose of this legislative instrument is to exempt applicants for a night vision imaging system rating or endorsement from the requirement under Part 61 of the Civil Aviation Safety Regulations 1998 to have at least 20 hours of flight time at night as pilot in command of a helicopter, provided the applicant has at least 20 hours of unaided aeronautical experience at night as pilot of a helicopter. The additional pilot in command role requirement is not considered necessary to aviation safety. (Unaided means without the use of night vision goggles or a night vision imaging system.) To achieve the central purpose, there are additional consequential exemptions.
Human rights implications
The exemption in the 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. The 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