Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption – Part 173 of CASR 1998 – Airservices Australia
Legislation
Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides that the Governor-General may make regulations for the Act and in the interests of the safety of air navigation.
Terminal instrument flight procedure design
Under subregulation 173.035 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998), it is an offence for a person to carry out design work on a terminal instrument flight procedure (a TIFP) for use by an Australian aircraft operating under the Instrument Flight Rules (I.F.R.), or for use by a foreign aircraft operating under the I.F.R. in Australian territory, unless the person is a certified designer authorised by a procedure design certificate to design such a TIFP.
Under subregulation 173.045 (1) of CASR 1998, a person must apply to CASA for the grant of a procedure design certificate. Under regulation 173.050, the applicant must be able to show that if a procedure design certificate were granted, he or she would be able to comply with the requirements that certified designers must comply with (the criteria). Under regulation 173.350, decisions on applications must be made within 6 months of receipt unless the time is extended by CASA’s requests for further information.
Under regulation 173.335 of CASR 1998, CASA must grant the certificate if the applicant meets the criteria, otherwise complies with the requirements of CASR 1998 and the granting of the certificate would not be likely to have an adverse effect on the safety of air navigation. Under subregulation 11.055 (4), in deciding whether any such adverse effect would be likely, CASA may take various matters into account (for example, the applicant’s record, experience and knowledge). Under regulation 11.056, CASA may grant a procedure design certificate subject to conditions necessary in the interests of the safety of air navigation, which must be set out in the certificate.
Under regulation 173.065 of CASR 1998, a procedure design certificate remains in force unless it is cancelled. Under subregulation 173.085 (1), a certified designer must ensure that a TIFP designed under his or her procedure design certificate is designed in accordance with the standards in the relevant CASA Manual of Standards (the MOS) and also in accordance with the standards promulgated by the International Civil Aviation Organization (ICAO) in ICAO Doc. 8168 (PANS-OPS).
Under subregulation 173.075 (1), a certified designer must maintain an operations manual that meets the standards for operations manuals set out in the MOS. Under regulation 173.090 of CASR 1998, a certified designer must have verification procedures involving 2 qualified designers independently checking the design of each TIFP designed under the certificate. For this purpose, a qualified designer means the holder, or the employee of the holder, of a procedure design certificate who has successfully completed an approved course of training in the methods and practices contained in ICAO Doc. 8168 (PANS-OPS).
Under subregulation 173.100 (1) of CASR 1998, a certified designer must ensure that each TIFP is given to the Aeronautical Information Service (the AIS) for publication in the Aeronautical Information Publication (the AIP) together with a certificate by the chief designer certifying that the TIFP is designed and validated in accordance with the applicable standards set out in ICAO Doc. 8168 (PANS-OPS) and the MOS.
Exemptions from CASR 1998
Under subregulation 11.160 (1) of 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), 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 to fail to comply with a condition of an exemption. Under regulation 11.225, an exemption must be published on the internet. Under subregulation 11.230 (1), an exemption ceases on the day specified within it (but no longer than 3 years after its commencement), or if no day is specified, 3 years after commencement.
Procedure design certificate — listed TIFP
Based on the expertise of relevant Airservices Australia (AA) personnel and CASA’s own inspection of facilities and operations, CASA has decided to issue AA with a procedure design certificate to authorise 2 categories of TIFP design.
The first category is for the design of a standard range of TIFPs (listed TIFP) whose design criteria are provided for in CASR Part 173 and the MOS because they are based on conventional design criteria found in ICAO Doc. 8168 (PANS-OPS). The term type of terminal instrument flight procedure is defined in regulation 173.010 to mean a type of TIFP mentioned in the MOS. These TIFPs are:
(a) Non-precision Approach (Ground-based); and
(b) Non-precision Approach (RNAV); and
(c) Precision Approach (Ground-based); and
(d) Precision Approach (RNAV); and
(e) Approach with Vertical Guidance (APV); and
(f) Departure; and
(g) Helicopter (Off-shore) — Airborne Radar; and
(h) Helicopter (Off-shore) — Non-directional Beacons (NDB).
Procedure design certificate — RNP-AR
The second category of TIFP for which AA will be authorised is Required Navigation Performance — Authorisation Required (RNP-AR).
This is available because the design criteria in ICAO Doc. 8168 (PANS-OPS), on which Part 173 of CASR 1998 and the MOS are based, have been supplemented by new area navigation procedures known as RNP-AR and based on ICAO Doc. 9905 (RNP-AR Procedure Design Manual). However, this has not yet been specifically mentioned in Part 173 of CASR 1998 or in the MOS.
RNP-AR TIFP accommodate the use of advanced navigation capabilities available on modern transport aircraft, such as the Boeing 737-800, and in appropriate circumstances for properly equipped aircraft, and provides substantially increased safety over procedures designed using conventional criteria of the kind found in ICAO Doc. 8168 (PANS-OPS).
CASA has concluded that the use of ICAO Doc. 9905 (RNP-AR Procedure Design Manual), design criteria specifically for RNP-AR TIFP in Australia, would preserve a level of aviation safety that was at least comparable to that which would be provided by use of ICAO Doc. 8168 (PANS-OPS). CASA also concluded that the level of safety was at least acceptable to it.
The new exemption instrument, therefore, implicitly exempts AA, as an applicant for a procedure design certificate, from compliance with regulation 173.050 of CASR 1998. These requirements are essentially that the applicant must demonstrate the capacity to meet the requirements of Division 173.B.2 of CASR 1998. However, as AA will be exempted from some of these for RNP-AR design purposes, exemption from this threshold requirement for the application is also required.
Exemption — from requirements to be complied with for designing
The new exemption instrument exempts AA, for the purpose of RNP-AR design work, from compliance with those aspects of CASR 1998 and the related MOS that refer to ICAO Doc. 8168 (PANS-OPS). However, this does not extend to exemption from the requirements for qualified designers within the meaning of regulation 173.090 of CASR 1998. Designers working on RNP-AR must also be qualified designers for ICAO Doc. 8168 (PANS‑OPS) purposes. RNP-AR is an advanced design and may only be designed by those already experienced in more conventional designing under ICAO Doc. 8168 (PANS-OPS).
Legislative Instruments Act
Exemptions issued under regulation 11.160 are issued under subsection 98 (5A) of the Act. Paragraph 98 (5A) (a), states that the regulations may empower CASA to issue an instrument relating to the safe navigation and operation, or the maintenance, of aircraft. Subsection (5AA) of the Act states that an instrument issued under paragraph 98 (5A) (a) of the Act is a legislative instrument if it applies to a class of persons. This exemption is, accordingly, a legislative instrument.
As a legislative instrument, it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the Legislative Instruments Act 2003 (the LIA).
Consultation
Consultation under section 17 of the LIA has not been undertaken in this case. The instrument has been applied for by an individual organisation and is to enable AA to design TIFP for use by Australian and foreign aircraft operating under the I.F.R. in Australian territory.
Commencement and making
The instrument commences on the day after registration and stops having effect at the end of 31 August 2014.
The exemption has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Civil Aviation Act 1988.
[Instrument number CASA EX98/11]