Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — from certain low-level rating requirements
Purpose
This instrument exempts the holder of a low-level rating from certain recency and flight review requirements provided alternative requirements are met.
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 the Civil Aviation Safety Regulations 1998 (CASR 1998) sets out flight crew licensing requirements.
Regulation 61.1040 provides that the holder of a pilot licence with a low-level rating is authorised to conduct low-level operations but this is subject to, among other things, regulations 61.1055 and 61.1060.
Regulation 61.1055 makes the exercise of the privileges of a low-level rating subject to a recent experience requirement (recency). Thus, 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 makes the exercise of the privileges of a low-level rating subject to a fight review requirement. Thus, 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 he or she:
(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.
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
Part 61 of CASR 1998 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, although a change for rotorcraft, were considered optimal.
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 feed-back 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 has, therefore, decided on its own initiative to issue a conditional exemption for certain low-level operations, to be effective until Part 61 is amended.
The exemption
The exemption would exempt the holder of a low-level rating from compliance with the requirements of regulations 61.1055 and 61.1060, subject to safety conditions.
Thus, the new flight review requirement (or, for this purpose only, flight review equivalent requirement) for all low-level rating holders would be that the holder must not exercise privileges unless, within the preceding 24 months, he or she:
(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 1998; 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 1998.
In other words, 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.
The new recency requirement would only apply to the holder of a low-level rating with an aerial mustering endorsement. In this case, the holder must not engage in an aerial mustering operation unless, within the 12 months before the operation, he or she:
(a) has completed 20 hours of aerial mustering operations; or
(b) has been assessed as competent to conduct aerial mustering operations by a flight instructor who holds a low-level training endorsement; or
(c) has successfully completed an operator proficiency check in low-level operations covering aerial mustering operations; or
(d) has successfully completed a low-level flight review covering aerial mustering operations.
Thus, a holder with an aerial mustering endorsement could carry out aerial mustering operations without the required recent experience but only if he or she had demonstrated recent competency in aerial mustering 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.
The specific technical details of the exemption are set out in Appendix 1.
Duration
The exemption is expressed to operate until expiry at the end of 30 April 2017, as if it had been repealed by another instrument. It is expected that before the exemption expires appropriate amendments will be made to Part 61 of CASR 1998 to reflect the intent of the exemption and, thereby, make its continuation unnecessary.
Legislative Instruments Act 2003 (the LIA)
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 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 applies to a class of persons (holders of low-level ratings) and is, therefore, a legislative instrument subject to registration, and tabling and disallowance in the Parliament, under sections 24, and 38 and 42 of the Legislative Instruments Act 2003.
Consultation
By providing alternative compliance mechanisms for a holder or operator, an exemption of its nature is always beneficial and does not require statutory consultation. However, for section 17 of the LIA, CASA did consult the Flight Crew Licensing Subcommittee of the Standards Consultative Committee, a CASA/Industry consultation forum. A number of helicopter operators were also consulted about the general proposals at 2 meetings in December 2014 and April 2015. Following on from these meetings, and taking into account representations made, CASA decided to formulate the proposals now embodied in the exemption.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement is not required for OBPR in this case because the exemption is of beneficial effect to those who fall within its scope and comply with its conditions. A preliminary assessment of business compliance costs in the context of the nature of the instrument indicates that it will have a nil negative impact on business.
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.
Commencement and making
The exemption commences on the day after registration and expires at the end of 30 April 2017, as if it had been repealed by another instrument.
The exemption has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
[Instrument number CASA EX92/15]
Appendix 1
Exemption — from certain low-level rating requirements
1 Duration
Under this section, the instrument commences on the day after registration and expires at the end of 30 April 2017, as if it had been repealed by another instrument.
2 Definitions
Under this section, some key words and phrases are defined.
3 Application
Under this section, the instrument applies to the holder of a low-level rating.
4 Exemptions
Under this section, the holder of a low-level rating is exempted from compliance with regulations 61.1040 (but only to the extent that it is made subject to regulations 61.1055 and 61.1060), 61.1055 and 61.1060. However, the exemptions are subject to the conditions.
5 Conditions
This section sets out the conditions that a holder must comply with to obtain the benefit of the exemption.
First, a flight review requirement would apply so that the holder of a low-level rating must not exercise the privileges of the rating unless, within the 24 months before exercising the privileges, he or she:
(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 1998; 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 1998.
Secondly, a recency requirement would apply for aerial mustering operations only so that the holder of a low-level rating with an aerial mustering endorsement must not engage in an aerial mustering operation unless, within the 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.
Appendix 2
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Civil Aviation Safety Regulations 1998
Exemption — from certain low-level rating requirements
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 instrument exempts the holder of a low-level rating from certain recency and flight review requirements provided alternative requirements are met.
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