CASA EX94/08 - Exemption - conduct of aerial application (fire fighting) operations by DC-10 aircraft

Administered by Department of Infrastructure, Transport, Regional Development, Communications, Sport and the Arts

Legislation au F2009L00062 Not in force Legislative Instrument

Legislation content

Explanatory Statement

Civil Aviation Regulations 1988

Civil Aviation Safety Regulations 1998

Exemption — conduct of aerial application (fire fighting) operations by DC-10 aircraft

 

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.

Exemption from provisions of CAR 1988

Subregulation 308 (1) of the Civil Aviation Regulations 1988 (CAR 1988) provides that CASA may, in relation to a particular aircraft or specified type or category of aircraft, exempt that aircraft, type or category from compliance with the regulations. Subregulation 308 (3) provides that the exemption is subject to the aircraft complying with any conditions specified by CASA as being necessary in the interests of safety.

 

Exemption from provisions of CASR 1998

Subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998) provides that CASA may grant an exemption from compliance with a provision of CASR 1998. Under regulation 11.160, CASA may grant an exemption on its own initiative.

 

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), CASA may impose conditions on an exemption if this is necessary in the interests of the safety of air navigation. Under regulation 11.210, it is an offence not to comply with a condition of an exemption.

 

Under regulation 11.125 of CASR 1998, an exemption must be published on the World Wide Web. Under subregulation 11.230 (1), an exemption ceases on the day specified within it (but no longer than 2 years after its commencement) or, if no day is specified, 2 years after its commencement.

 

CAR 1988 (157)

 Subregulation 157 (1) of CAR 1988 requires that the pilot in command of an aircraft must not fly the aircraft over:

 (a)any city, town or populous area, at a height lower than 1 000 feet; or

 (b)any other area at a height lower than 500 feet.

 For the purpose of carrying out fire fighting operations under this exemption, the DC‑10 aircraft to which it applies, which is registered in the United States of America and flown by a crew qualified in that country, is required to fly at a lower height than the minimum applicable under subregulation 157 (1) of CAR 1988. The instrument therefore exempts the operator from compliance with subregulation 157 (1).

 

 The exemption is subject to conditions. The flight crew must have undergone an annual proficiency check and whatever recurrent training is required to enable them to carry out such operations in the United States of America. They must also hold current licences and authorisations that permit them to carry out operations of the kind permitted under this exemption. In addition, the aircraft must be flown in accordance with the aircraft operator’s operations manual as considered acceptable by CASA. The aircraft operator is an Australian operator, A. G. Airwork, trading as AGFLITE and Super Spread Aviation (the operator).

 

CAR 1988 (217 (1))

Subregulation 217 (1) of CAR 1988 requires that the operator of an aircraft with a maximum take-off weight of more than 5 700 kg must provide a training and checking organisation. The DC-10 aircraft is a multi-engine aircraft with a maximum take-off weight in excess of 5 700 kg.

The nature of the short-term contract work for this aircraft makes it impractical to endorse CASA Flying Operations Inspectors on type to permit a CAR 217 organisation to be established by the Air Operator’s Certificate holder. However, an equivalent level of safety can be provided by ensuring that the flight crew meets the competency requirements stipulated in the exemption and follows the operator’s operations manual. In addition the exemption requires that a CASA Team Leader Flying Operations (TLFO), or a Flying Operations Inspector approved by a TLFO, assesses the crew’s competence in relation to compliance with the aircraft operator’s operations manual and operations in Australian airspace. The operator’s chief pilot must also sight, verify and keep copies of the crew’s licences, aircraft endorsements, medical certificates and proficiency check documents.

The instrument, therefore, exempts the operator from the requirement to have a training and checking organisation.

CAR 1988 (232)

Subregulation 232 (1) of CAR 1988 provides that the operator of an aircraft must establish a flight check system for each type of aircraft, setting out the procedures to be followed by the pilot in command and other crew members prior to and on take‑off, on landing and in emergency situations.

Subregulation 232 (2) of CAR 1988 provides that a flight check system is subject to prior approval of CASA and CASA may, at any time, require the system to be revised in a manner specified by CASA.

Subregulation 232 (5) of CAR 1988 provides that an aircraft must not be flown unless the flight check system has been approved by CASA and, if CASA has required the system to be revised, the system has been revised in a manner specified by CASA.

CASA considers that the requirement for the flight check system for this aircraft to be approved involves a significant resource impost on both CASA and the operator with no significant enhancement in safety.

This exemption, therefore, exempts the operator of this aircraft from the requirement to have the flight check system separately approved.

As a condition on the exemption, the flight crew must follow the flight check system for the aircraft that complies with Federal Aviation Administration of the United States of America standards.

 

CASR 1998 (Part 137)

Part 137 of CASR 1998 deals with aerial application operations. Aircraft used for aerial application operations, including fire fighting, must comply with its requirements unless exempted from doing so. Exemptions have been provided from the following provisions.


CASR 1998 (137.025)

Regulation 137.025 of CASR 1998 provides that for aerial application operations an aircraft must conform to a type certificate or a type acceptance certificate in the normal, restricted or utility category. The aircraft has been issued with a transport category certificate of airworthiness. Under the exemption, the certificate of airworthiness and all certificates, manuals and other documents that relate to the safe operation of the aircraft must be sighted and verified before the operator is allowed to carry out operations.

 

CASR 1998 (137.235)

Regulation 137.235 of CASR 1998 provides that an operator must not allow an aircraft to be used for an aerial application operation unless the pilot is authorised to do so. The pilots of an aircraft under regulation 137.235 of CASR 1998 are required to hold licences, agricultural pilot ratings and class endorsements issued under CAR 1988. The flight crew hold qualifications issued in the United States of America that CASA considers sufficient to ensure the safe operation of the aircraft the subject of the exemption.

 

CASR 1998 (137.240)

Regulation 137.240 (1) of CASR 1998 provides that an operator must not allow an aircraft to be used for an aerial application operation and the pilot in command must not commence such an operation unless the pilot holds a valid annual proficiency check. The proficiency check referred to is set out in regulation 137.240. The operator and pilots of the aircraft are exempted from compliance with those requirements on condition that the pilots satisfy whatever qualifications are required to enable them to carry out fire fighting operations in the United States of America during the duration of the exemption.

 

Legislative Instruments Act

Subregulation 308 (4) of CAR 1988, and regulation 11.215 of CASR 1998, declare any exemption to which they apply to be a disallowable instrument. 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. The exemption is, therefore, a legislative instrument and it 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 has not been undertaken in this case. The instrument is required by the operator to facilitate fire fighting operations. A similar exemption would be issued to any operator who requested it and could meet equivalent safety conditions.

The instrument commences on the day after it is registered and stops having effect at the end of 31 March 2009.

The exemption has been made by a delegate of CASA appointed under subregulation 7 (1) of CAR 1988 and regulation 11.260 of CASR 1998.

 

[Instrument number CASA EX94/08]

Overview

The Civil Aviation Regulations 1988 and Civil Aviation Safety Regulations 1998 (CAR 1988 and CASR 1998 respectively) provide for a comprehensive regulatory framework governing civil aviation in Australia. These regulations cover various aspects of aviation operations, including aircraft operations, flight crew qualifications, maintenance, and safety standards. Enacted by the Parliament of Australia, the overarching goal of these regulations is to ensure the safety and efficiency of air navigation while facilitating the growth of the aviation industry. This specific exemption instrument, introduced under section 98 of the Civil Aviation Act 1988, allows for the exemption of certain regulations for the conduct of aerial application (fire fighting) operations by DC-10 aircraft. The instrument exempts an Australian operator, A. G. Airwork trading as AGFLITE and Super Spread Aviation, from specific provisions in the CAR 1988 and CASR 1998 that would otherwise apply to their DC-10 aircraft engaged in fire fighting operations. This exemption is subject to various conditions to ensure safety, such as the flight crew undergoing annual proficiency checks and recurrent training, holding current licenses and authorisations, and flying in accordance with the operator's operations manual. The exemption also addresses the impracticality of establishing a training and checking organisation for the short-term contract work of the aircraft, instead relying on a CASA Team Leader Flying Operations or a Flying Operations Inspector to assess the crew's competence. The exemption is subject to tabling and disallowance in the Parliament under the Legislative Instruments Act 2003.

Scope and Application

The instrument under the Civil Aviation Regulations 1988 and the Civil Aviation Safety Regulations 1998 provides exemptions for a specific operation conducted by a DC-10 aircraft registered in the United States and operated by an Australian company, A. G. Airwork, trading as AGFLITE and Super Spread Aviation. This exemption primarily applies to the conduct of aerial application (fire fighting) operations, allowing the aircraft to fly at lower altitudes than the standard regulations permit, specifically subregulation 157(1) of CAR 1988, which mandates a minimum flight height over cities, towns, populous areas, and other areas. The exemption is subject to several conditions designed to ensure safety, including annual proficiency checks for the flight crew, adherence to the operator’s operations manual, and assessment of the crew’s competency by a CASA Team Leader Flying Operations or an approved Flying Operations Inspector. Furthermore, the exemption exempts the operator from requirements under subregulation 217(1) of CAR 1988, which mandates the provision of a training and checking organisation, and subregulation 232(1) of CAR 1988, which requires the establishment of a flight check system. Under CASR 1998, the exemption also exempts the operator from certain provisions of Part 137, including requirements for aircraft type certificates, pilot authorisations, and annual proficiency checks, provided the crew meets US qualifications. This exemption is in force until 31 March 2009 and is subject to tabling and disallowance in the Parliament under the Legislative Instruments Act 2003.

Key Provisions

This legislation primarily addresses exemptions for the conduct of aerial application operations, particularly fire-fighting, by DC-10 aircraft registered in the United States of America and operated by Australian company A. G. Airwork, trading as AGFLITE and Super Spread Aviation. The exemption is provided under section 98 of the Civil Aviation Act 1988, empowering the Governor-General to make regulations in the interests of safety of air navigation. Subregulation 308(1) of the Civil Aviation Regulations 1988 (CAR 1988) and subregulation 11.160(1) of the Civil Aviation Safety Regulations 1998 (CASR 1998) allow the Civil Aviation Safety Authority (CASA) to exempt certain aircraft from compliance with specific regulations and safety provisions, provided it does not compromise safety. These exemptions are subject to conditions deemed necessary by CASA, such as the flight crew undergoing annual proficiency checks and recurrent training, holding current licences and authorisations, and following the aircraft operator's operations manual as approved by CASA. The exemption exempts the operator from several regulatory requirements to facilitate fire-fighting operations. For instance, subregulation 157(1) of CAR 1988 mandates that aircraft must not be flown over cities, towns, or populous areas below 1,000 feet or over other areas below 500 feet. This exemption allows the DC-10 aircraft to fly at lower altitudes necessary for fire-fighting operations, provided the flight crew meets the competency requirements and the aircraft follows the approved operations manual. Similarly, subregulation 217(1) of CAR 1988 requires operators of aircraft weighing more than 5,700 kg to provide a training and checking organisation. The exemption acknowledges the impracticality of endorsing CASA inspectors for this specific short-term contract work but mandates that CASA assess the crew's competence and that the operator verifies crew credentials. Subregulation 232(1) of CAR 1988 requires operators to establish a flight check system for each aircraft type, but the exemption allows compliance with FAA standards instead of separate CASA approval. Under CASR 1998, the exemption allows the DC-10 aircraft to be used for aerial application operations without conforming to specific type certificates or acceptance certificates (regulation 137.025), provided the aircraft's airworthiness certificate and related documents are verified. Regulation 137.235 requires pilots to hold specific licences and endorsements, but the exemption allows pilots with US qualifications to operate if they meet safety standards. Regulation 137.240 mandates that pilots hold a valid annual proficiency check, but the exemption allows compliance with US qualification requirements. These exemptions are subject to CASA's paramount consideration of safety preservation and may be subject to conditions to ensure safety. Failure to comply with an exemption condition is an offence under regulation 11.210 of CASR 1998. The exemption is a disallowable instrument under subregulation 308(4) of CAR 1988 and regulation 11.215 of CASR 1998, making it subject to tabling and disallowance in Parliament under the Legislative Instruments Act 2003. The exemption is effective from the day after registration until the end of March 2009 and has been issued by a CASA delegate under subregulation 7(1) of CAR 1988 and regulation 11.260 of CASR 1998.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.