Explanatory Statement
Civil Aviation Regulations 1988
Exemption — design of modification or repair
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations.
Under subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (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) of CASR 1998, CASA may impose conditions on an exemption if this is necessary in the interests of the safety of air navigation.
Under paragraph 21.009 (1) (f) of CASR 1998, CASA or an authorised person must approve the technical data for a modification or repair design approval.
Under subregulation 21.437 (2) of CASR 1998, an authorised person must approve an application for a modification or repair design approval if the requirements of subregulation 21.437 (4) are met.
CASA authorised persons are often faced with the requirement to install temporary modifications and repairs, for example, ferry tank installations which will allow an aircraft to fly under the special flight permit provisions in CASR 1998. Also, they often need to test fly a configuration change under an experimental certificate before the change can be approved.
CASA recognises that it is often not possible or practicable for an operator to demonstrate strict compliance with all applicable design requirements in the case of temporary modifications or repairs for ferry flights and overweight operations and that some modifications need to be test flown before they can be approved.
The exemption allows an authorised person to approve the design of a modification or repair which does not fully comply with all the relevant design standards, subject to the condition that the safety of air navigation is not compromised. It is a condition that an authorised person must take into account any relevant consideration relating to the safe operation of the intended flight, including all hazards and risks, before approving the design of temporary modifications or repairs. Also, any aircraft fitted with such a modification or repair may only fly under a special flight permit or an experimental certificate.
An authorised person may impose limitations or conditions on the approval or require that a specified thing be done to ensure the safety of air navigation. An authorised person must ensure that an aircraft with temporary modification or repair made to it is only operated in accordance with the requirements of a special flight permit issued under regulation 21.200 of CASR 1998.
Legislative Instruments Act
For subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from compliance with a provision of the regulations or the Civil Aviation Orders. 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 a class of aircraft. The exemption applies to a class of persons, being authorised persons. The exemption is, therefore, a legislative instrument and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the Legislative Instruments Act 2000 (the LIA).
Consultation
Consultation under section 17 of the LIA has not been undertaken in this case. It is beneficial to industry. The instrument replaces a previous instrument that was issued under regulation 35 of the Civil Aviation Regulations 1988 which no longer exists.
The instrument commences on the day after registration and stops having effect at the end of 30 June 2014.
The exemption 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 EX84/11]