Explanatory Statement
Civil Aviation Order 82.6
Exemption — initial NVG pilot flight training prerequisites
Purpose
This is a legislative instrument which exempts certain trainee pilots registered with Becker Helicopter Services Pty Ltd (Becker) from initial NVG pilot flight training prerequisites on the basis of compensating safety mitigators embodied in a safety case prepared by Becker.
Background
Night vision goggles (NVG) are a head mounted night vision enhancement device. They use image intensifying technology to amplify the available ambient light sufficiently for images to be seen through the NVG eyepieces as a monochromatic green image.
Civil Aviation Order 82.6 (CAO 82.6) provides for operational and airworthiness standards and approval requirements for the use of NVG in specialised helicopter aerial work operations, namely, search and rescue, law enforcement, aerial fire fighting, aerial fire fighting support, emergency medical services, marine pilot transfers, training for any of these, and demonstration and positioning flights.
Instrument CASA 288/07 (the Direction) directed that night vision devices must not be used in private operations as the primary means of terrain avoidance for safe air navigation by means of visual surface reference external to an aircraft.
Thus together, CAO 82.6 and the Direction make unlawful any non-approved use of NVG as a primary means of terrain avoidance when using external visual surface reference.
Initial NVG pilot flight training prerequisites
Under subclause 29.1 in Appendix 3 of CAO 82.6, before commencing NVG training for an initial NVG pilot qualification, a trainee pilot must, as a minimum, meet certain requirements.
These requirements, which are set out in detail in Appendix 2 of this Explanatory Statement, include all of the following: a current commercial pilot (helicopter) licence or air transport pilot (helicopter) licence; a current night V.F.R. rating for helicopters; at least 250 hours of aeronautical experience as a helicopter pilot; endorsement on the aircraft type intended for training; at least 10 hours’ experience as pilot, or co-pilot, in command at night (unaided) under the night visual flight rules (NVFR); a current command helicopter instrument rating or completion of at least 10 hours helicopter dual instrument training.
There are additional prerequisites if the trainee pilot is to undergo NVG training for an advanced operational sequence, for example, winching, or if the trainee pilot is to conduct low flying.
Discretion based on safety case
Under subclause 29.2 in Appendix 3 of CAO 82.6, CASA may, by legislative instrument, exempt a trainee pilot from a requirement mentioned in subclause 29.1 if a safety case, prepared by the trainee pilot or other relevant person, is given to CASA, documenting and demonstrating that an acceptable level of safety for NVG training and NVG operations will be preserved in spite of exemption from the requirement.
Exemption for Becker trainees under subclause 29.2
Becker is engaged in helicopter pilot training of members of the Saudi Arabian National Guard (SANG) and the United Arab Emirates Presidential Guard (UAE PG) (collectively referred to as the exempt trainees). An aspect of that training is NVG training.
The exempt trainees do not meet the initial NVG pilot flight training prerequisites. In order for initial NVG pilot flight training to commence for them, they must either meet these requirements or obtain an exemption from them. It is not intended that, apart from their participation in the training course, any of the exempt trainees will fly in Australia.
Becker, therefore, prepared a safety case to the effect that off-setting safety mitigators would make it safe to train the exempt trainees notwithstanding that they did not meet the requirements of subclause 29.1.
CASA conducted a risk assessment of the proposed training and concluded that the safety case documented and demonstrated that an acceptable level of safety for NVG training and NVG operations would be preserved in spite of exemption from the requirements of subclause 29.1.
CASA, therefore, decided to issue an exemption, subject to safety conditions. The critical conditions relate to the additional expertise and experience required of the NVG flight instructors and the pre-NVG training that the exempt trainees must undergo. Details of the exemption are set out in Appendix 1 of this Explanatory Statement.
This exemption replaces the current exemption (CASA EX110/09; F2009L04613) so that the exemption now applies to members of the UAE PG as well as members of the SANG. In addition, the qualification and experience requirements of flight instructors have been modified to allow for the introduction of additional instructors.
Legislative Instruments Act
Paragraph 28BA (1) (b) of the Civil Aviation Act 1988 (the Act) provides that an Air Operator’s Certificate (AOC) has effect subject to any conditions “specified in the regulations or Civil Aviation Orders”. CAO 82.6, and amendments to it, take effect as conditions on AOCs. By providing that an AOC has effect subject to any conditions specified in the CAOs, paragraph 28BA (1) (b) of the Act empowers the making of CAO 82.6. Therefore, CAO 82.6 is an instrument made under an Act.
Under subsection 15AE (6) of the Acts Interpretation Act 1901 (the AIA), the term law in section 15AE is defined as an Act, or regulations, “or any other instrument made under an Act”. As an instrument made under an Act, CAO 82.6 is, therefore, a law for section 15AE of the AIA.
Under subsection 15AE (1) of the AIA, if a provision of a law requires or permits the making of an instrument that is described as a legislative instrument, then the instrument is a legislative instrument for the Legislative Instruments Act 2003 (the LIA).
Therefore, the exemption, made under subclause 29.2 in Appendix 3 of CAO 82.6, is a legislative instrument. As such, 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 because the exemption is beneficial in effect and applies only to 1 operator who has applied for it.
Office of Best Practice Regulation (OBPR)
The exemption relieves of obligations, subject to conditions. OBPR does not require preparation of a Regulation Impact Statement in this case because a preliminary assessment of business compliance costs in the context of the nature of the instrument indicates that it will have only a nil to low impact on business.
Commencement and making
The instrument commences on the day after it is registered and stops having effect at the earlier of: the end of July 2013; or the exempt trainee ceasing to be an exempt trainee with Becker.
The exemption has been made by the Executive Manager, Operations Division, an authorised person of CASA.
[Instrument number CASA EX94/11]
Appendix 1
Details of exemption
1 Revocation
Under this section, CASA EX110/09 is revoked.
2 Application
Under this section, the instrument applies to each member of the SANG or the UAE PG who is registered as a trainee NVG pilot with Becker.
3 Exemption
Under this section, each exempt trainee is exempt from the initial NVG pilot flight training prerequisites of paragraphs 29.1 (a) to (e) (inclusive) in Appendix 3 of CAO 82.6.
4 Conditions
Under this section, each exemption of an exempt trainee is subject to the conditions mentioned in Schedule 1.
5 Duration
Under this section, the instrument:
(a) commences on the day after registration; and
(b) stops having effect for an exempt trainee at the earlier of:
(i) the end of July 2013; or
(ii) the exempt trainee ceasing to be an exempt trainee with Becker.
Schedule 1 Conditions for the exemption to apply
Under this Schedule, Becker and the exempt trainees must comply, as applicable, with 3 groups of conditions as follows.
Safety case
1 Becker must comply with the applicable procedures, requirements and undertakings in its safety case dated 1 August 2011.
2 Subject to this instrument, Becker must comply with, or ensure compliance with, all applicable provisions of CAO 82.6 for NVG pilot training.
3 Becker must ensure that CASA remains satisfied that its safety case continues to be appropriate in relation to the NVG training of each exempt trainee.
4 Becker must comply with any written direction of CASA intended to ensure the continuing safety of the NVG training of each exempt trainee.
Note Subject to this instrument, a written direction must be consistent with CAO 82.6.
NVG flight instructors
5 Each NVG flight instructor for an exempt trainee must have, as a minimum, the qualifications and experience set out in paragraphs 15.4 (a) to (h) (inclusive) in Appendix 3 of CAO 82.6.
6 Each NVG flight instructor for an exempt trainee must also have a minimum of 12 months of post-NVG qualification NVG flying experience and meet the requirements of either paragraph 6 (a) or 6 (b). To satisfy the requirements of paragraph 6 (a), the NVG flight instructor must have a minimum of 100 hours of post‑NVG qualification NVG flight time. If the NVG flight instructor does not meet this requirement, he or she must satisfy all of the following minimum requirements set out in paragraph 6 (b):
(i) 50 hours of post-NVG qualification NVG flight time;
(ii) 1 200 hours of aeronautical experience as a helicopter pilot;
(iii) a current grade 2 or higher flight instructor (helicopter) rating, including:
(A) 450 hours of helicopter instructing experience;
(B) 100 hours of instructing experience with exempt trainees, of which at least 25 hours has been within the previous 6 months;
(iv) NVFR training approval, including 100 hours NVFR training experience, of which at least 25 hours has been training exempt trainees;
(v) 50 hours of NVG flying experience using the same NVG type as approved for use by Becker;
(vi) a command (multi-engine helicopter) or command (single engine helicopter) instrument rating;
(vii) 100 hours aeronautical experience as a helicopter pilot on the same helicopter type with the same cockpit layout as used on the training course.
7 For clause 6, the NVG flight time and the NVG flying experience must be in 1 or more of the following capacities:
(a) as NVG pilot in command;
(b) as NVG pilot in command under supervision (known as ICUS);
(c) as NVG pilot under post-initial qualification dual training.
Exempt trainees
8 Before commencing NVG training (other than NVG training in a simulator, such as that required under paragraph 9 (d)), each exempt trainee must have completed with Becker at least 150 hours of helicopter flight training.
9For clause 8, the flight training must comprise at least the following flight training hours:
(a) 80 hours basic and tactical training in a Bell 206 JetRanger helicopter (Bell 206);
(b) 55 hours of helicopter instrument training, being:
(i) 30 hours in a Bell 206 simulator; and
(ii) 25 hours actual flight time in a Bell 206;
(c) 10 hours of NVFR training in a Bell 206;
(d) 5 hours of NVG training in a Bell 206 simulator separate from the hours mentioned in subparagraph (b) (i).
10 The exempt trainee must not conduct any solo NVG flying. The exempt trainee must at all relevant times fly in planned flight as a registered exempt trainee with a qualified NVG flying instructor who complies with clauses 5, 6 and 7.
Appendix 2
Details of initial NVG pilot flight training prerequisites in clause 29 of Appendix 3 of CAO 82.6
29 Initial NVG pilot flight training — prerequisites
29.1 Subject to subclause 29.2, before commencing NVG training for an initial NVG pilot qualification, a trainee pilot must, as a minimum, meet the following requirements:
(a) hold a current commercial pilot (helicopter) licence or air transport pilot (helicopter) licence;
(b) hold a current night V.F.R. rating for helicopters;
(c) have logged at least 250 hours of aeronautical experience as a helicopter pilot of which no more than 50 may be in an approved flight simulator representative of the aircraft category that will be used for NVG operations;
(d) be appropriately endorsed on the aircraft type intended for training;
(e) a total of at least 10 hours’ experience:
(i) for a command pilot — as pilot in command at night (unaided) under the NVFR; and
(ii) for a co-pilot — as a pilot in command at night (unaided) or as a co‑pilot at night (unaided) under the NVFR;
of which either of the following must be in the 3 months immediately before the initial award of the NVG endorsement:
(iii) at least 3 hours; or
(iv) an unaided check flight at night with an instructor qualified to instruct in a helicopter under the NVFR, that meets the requirements specified in paragraphs 2.1 (a) and (c) in Appendix 1 of CAO 40.2.2;
Note 1 Paragraphs 2.1 (a) and (c) of Appendix 1 in CAO 40.2.2 provide for the minimum handling requirements for instruments under the NVFR.
Note 2 If the pilot is already qualified under the NVFR, the alternative requirement provided for in subparagraph (e) (iv) would also satisfy the requirements of sub‑subparagraphs 29 (f) (ii) (C) and (D) if it were conducted within the 3 months immediately before commencing NVG training.
(f) either:
(i) hold a current command helicopter instrument rating; or
(ii) have completed at least 10 hours of dedicated helicopter dual instrument training of which:
(B) not more than 5 hours may be in a synthetic flight trainer; and
(C) at least 1.5 hours must be completed in a helicopter in the 3 months immediately before commencing NVG training, to a degree which ensures proficiency in the requirements specified in paragraphs 2.1 (a) and (c) of Appendix I in CAO 40.2.2, to the standard specified in clause 2.2 of that Appendix; and
(D) some time must be spent to ensure proficiency in recovery to V.M.C. flight after inadvertent I.M.C. penetration;
(g) if undergoing NVG training for an advanced operational sequence, for example, winching — be qualified and certified for the advanced operational sequence unaided before undergoing the NVG training;
(h) if the trainee pilot, during or after training, is to conduct low flying — have successfully completed low flying training that, as a minimum meets:
(i) the requirements of clause 3 in Appendix 1 of CAO 29.10 (the acceptable standard); or
(ii) a standard demonstrated by the trainee pilot to CASA’s satisfaction to be equivalent to the acceptable standard.
29.2CASA may by legislative instrument exempt a trainee pilot from a requirement mentioned in paragraph 29.1 if:
(a) a safety case prepared by the trainee pilot or other relevant person is given to CASA; and
(b) the safety case documents and demonstrates that an acceptable level of safety for NVG training and NVG operations will be preserved in spite of the exemption from the requirement.