Civil Aviation Legislation Amendment and Repeal (Australian Technical Standard Orders) Instrument 2017

Explanatory Statement

Civil Aviation Safety Regulations 1998

Civil Aviation Legislation Amendment and Repeal (Australian Technical Standard Orders) Instrument 2017

Purpose

The purpose of the Civil Aviation Legislation Amendment and Repeal (Australian Technical Standard Orders) Instrument 2017 is to amend the Part 21 Manual of Standards (Part 21 MOS) by inserting provisions that prescribe the minimum performance standards, known as Australian Technical Standard Orders (ATSOs), for specified articles used on civil aircraft. Those articles are relevant to a range of provisions in the aviation safety scheme, summarised in the Legislation section below.

The instrument also repeals the separate legislative instruments that contain the corresponding standards and other standards that are no longer required. It also makes consequential amendments to several other legislative instruments to reflect the repeal of those separate instruments.

Legislation

Civil Aviation Act 1988 (the Act)

Under section 9 of the Act, CASA has the function of conducting the safety regulation of various types of civil air operations, including by developing and promulgating appropriate, clear and concise aviation safety standards.

Division 2 of Part III of the Act relates to Air Operators’ Certificates (AOCs), which are required for operators to conduct specified operations in aircraft, including regular public transport, charter and aerial work operations. Under paragraph 28BA (1) (b) of the Act, an AOC has effect subject to any conditions specified in the regulations or the Civil Aviation Orders (CAOs).

Section 98 of the Act empowers the Governor-General to make regulations for the Act and in the interests of the safety of air navigation. Subsection 98 (4A) of the Act empowers CASA to issue CAOs with respect to any matter in relation to which regulations may be made for section 28BA. Under subsection 98 (5A) of the Act, the regulations may empower CASA to issue instruments in relation to the airworthiness of, and design standards for, aircraft.

Under subsection 98 (5D) of the Act, a legislative instrument made under the Act or the regulations may apply, adopt or incorporate any matter contained in any instrument or other writing as in force or existing at a particular time or as in force or existing from time to time.

Civil Aviation Safety Regulations 1998 (CASR)

Under regulation 11.160 of CASR, CASA may grant an exemption from compliance with a provision of CASR, the Civil Aviation Regulations 1988 (CAR) or the CAOs. Under regulation 11.205 of CASR, CASA may impose conditions on an exemption if this is necessary in the interests of the safety of air navigation.

Regulation 11.280 of CASR requires CASA to publish a notice of its intention to issue or amend a Manual of Standards (MOS) and to specify the period during which comments on the draft MOS may be lodged. Subregulation 11.280 (3) requires the period during which comments may be lodged to be reasonable in the circumstances, but not less than 28 days.

Part 21 of CASR deals with certification and airworthiness requirements and includes rules dealing with the approval of aircraft engines, propellers and certain materials, parts, processes, and appliances.

Schedule 2 to the Civil Aviation Legislation Amendment (Airworthiness and Other Matters —2015 Measures No. 1) Regulation 2015 (the amendment regulation) commenced on 1 June 2016. It amended CASR to empower CASA to issue a MOS for Part 21 of CASR. Regulation 21.010D of CASR allows CASA, for subsection 98 (5A) of the Act, to issue a MOS prescribing matters:

• required or permitted by the regulations to be prescribed by the Part 21 MOS; or
• necessary or convenient to be prescribed for carrying out or giving effect to Part 21 of CASR.

Subpart 21.H of CASR prescribes requirements for the issue of certificates of airworthiness (except provisional certificates) and special flight permits.

Regulation 21.184 sets out the requirements that an applicant must meet to be entitled to a special certificate of airworthiness in relation to a primary category aircraft and sets out the requirements for a number of different kinds of primary category aircraft. Regulation 21.184A sets out the requirements that an applicant must meet to be entitled to a special certificate of airworthiness in relation to intermediate category aircraft and sets out the requirements for a number of different kinds of intermediate category aircraft.

Before the commencement of the amendment regulation, subparagraphs 21.184 (4) (a) (ii) and 21.184A (2) (a) (ii) contained criteria by reference to section 101.55 of the CAOs (CAO 101.55).

The amendment regulation amended subparagraphs 21.184 (4) (a) (ii) and 21.184A (2) (a) (ii) to replace the references to CAO 101.55 with references to the requirements prescribed in the Part 21 MOS. Accordingly, on and after 1 June 2016, CAO 101.55 was no longer the direct source of the requirements the aircraft would have to meet for the issue of a special certificate of airworthiness in relation to primary and intermediate category aircraft mentioned in subregulations 21.184 (4) and 21.184A (2). As a temporary measure, section 8.5 of the Part 21 MOS prescribed the relevant requirements by incorporating CAO 101.55 into the Part 21 MOS by reference so that, in practice, the CAO continued to be the source of those requirements.

Subpart 21.O (regulations 21.601 to 21.621) of CASR prescribes requirements for issuing an ATSO authorisation, the rules governing the holders of ATSO authorisations and requirements for the issue of a letter of ATSO design approval. Before the commencement of the amendment regulation, paragraph 21.601 (2) (a) of CASR provided that an ATSO is a minimum performance standard issued by CASA for specified articles used on civil aircraft. The amendment regulation substituted paragraph 21.601 (2) (a) of CASR so that it now provides that an ATSO is a minimum performance standard prescribed by the Part 21 MOS for specified articles used on civil aircraft.

Under regulation 21.605 of CASR, an article manufacturer may apply to CASA for an ATSO authorisation for the article. Subject to regulation 11.055, CASA must issue an ATSO authorisation for the article if CASA is satisfied that the design of the article complies with the applicable ATSO and the applicant has established and can maintain a quality system to ensure that each article manufactured by the applicant will comply with the applicable ATSO.

Under subregulation 21.605 (2) of CASR, an application for an ATSO authorisation relating to an ATSO must include:

(a) a statement of conformance certifying that the applicant has met the requirements of Subpart 21.O and that the article concerned meets the applicable ATSO that is effective on the date of application for that article; and

(b) a copy of the technical data required in the applicable ATSO; and

(c) a description of the applicant’s quality system.

Under paragraph 21.607 (1) (a) of CASR, where an ATSO authorisation relating to an ATSO has been issued, the article manufacturer must ensure that an article is manufactured in accordance with Part 21 of CASR and the applicable ATSO, including any deviations approved under subregulation 21.609 (3).

Under paragraph 21.607 (1) (c) of CASR, where an ATSO authorisation relating to an ATSO has been issued, the article manufacturer must ensure that an article is permanently and legibly marked with specified information, including the name and address of the manufacturer, and the ATSO number with the prefix “ATSO”.

Regulation 21.609 of CASR empowers CASA to approve an article manufacturer deviating from a performance standard of an ATSO for an article to be manufactured by the article manufacturer.

Under paragraph 21.617 (1) (b) of CASR, a letter of ATSO design approval may be issued for an appliance that is manufactured in a foreign country only if the article manufacturer has submitted to CASA a copy of the technical data required in the applicable performance standard through the national aviation authority of that country.

Part 92 of CASR relates to the carriage of dangerous goods on aircraft. Regulation 92.010 of CASR defines the term Technical Instructions to mean, at a particular time, the edition that is valid at that time of the document entitled Technical Instructions for the Safe Transport of Dangerous Goods by Air, issued by the International Civil Aviation Organization.

Under regulation 200.002, privately built single-place aeroplanes that meet specified requirements are exempt from CASR if the conditions in section 95.10 of the CAOs (CAO 95.10) are complied with. CAO 95.10 provides exemptions, subject to compliance with specified conditions, facilitating the operation of certain low-momentum ultralight aeroplanes.

Civil Aviation Regulations 1988 (CAR)

If CASA is empowered or required under the regulations to issue a direction, instruction or notification or to give a permission, approval or authority, regulation 5 of CAR allows CASA to do so in a CAO.

Regulation 207 of CAR allows CASA to approve and direct that Australian aircraft used in a class of operation must be fitted with instruments, and fitted with or carrying equipment. CASA may also give directions about how the instruments and equipment are to be fitted, carried and used.

Regulation 209 of CAR allows CASA, in the interest of safety, to direct conditions with which the operator and the pilot in command of an aircraft engaged in private operations must comply.

Part 21 Manual of Standards

Section 1.10 of the Part 21 MOS contains definitions for terms appearing in the Part 21 MOS.

Part 13 of the Part 21 MOS is made under paragraph 21.601 (2) (a) of CASR. The purpose of Part 13 of the Part 21 MOS is to prescribe minimum performance standards for articles (such as life preservers and airborne air traffic control (ATC) transponder equipment) for use on civil aircraft and manufactured by an article manufacturer. Before the commencement of this instrument, section 13.1 incorporated by reference the ATSOs contained in other instruments issued by CASA.

Acts Interpretation Act 1901

Under subsection 33 (3) of the Acts Interpretation Act 1901 and section 13 of the Legislation Act 2003 (the LA), where an Act or legislative instrument confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by‑laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.

Background

Subsection 1.5 (1) of the Part 21 MOS provided that the Part 21 MOS commenced on 1 June 2016.

From that commencement, section 8.5 incorporated CAO 101.55 by reference into the Part 21 MOS for the purposes of subparagraphs 21.184 (4) (a) (ii) and 21.184A (2) (a) (ii) of CASR. The CAO was incorporated as it was in force immediately before 1 June 2016.

Also, on commencement, section 13.1 of the Part 21 MOS prescribed the ATSOs by incorporating by reference the existing ATSOs which had been issued by CASA, as in force immediately before 1 June 2016.

Before the commencement of this instrument, subsection 1.5 (2) provided that sections 8.5 and 13.1 of the Part 21 MOS are repealed at the end of 30 November 2017. CASA intended to replicate the requirements of CAO 101.55 and the ATSOs in the Part 21 MOS with appropriate changes to clarify, streamline and simplify the relevant requirements. Subsection 1.5 (2) allowed time for the drafting of, and consultation on, amendments to the Part 21 MOS to include the standards in CAO 101.55 and the ATSOs.

The standards in CAO 101.55 were available for applications for special certificates of airworthiness for primary category and intermediate category aircraft. Following consultation with industry, CASA has formed the view that the standards in CAO 101.55 are not currently used, and are unlikely to be used in the future, for new aircraft. Accordingly, CASA has decided to omit the requirements in CAO 101.55 from the Part 21 MOS.

The standards previously in CAO 101.55 will remain available as an historical standard for the purposes of modification and repair of aircraft originally certified to those standards. When an application is made under Division 21.M of CASR for a modification/repair design approval, the applicant must show that the design complies with the applicable airworthiness standards for the design. The applicable airworthiness standards include the standards that applied to the original certification of the aircraft, aircraft engine, propeller or appliance.

Instrument

Section 1 provides that the name of the instrument is the Civil Aviation Legislation Amendment and Repeal (Australian Technical Standard Orders) Instrument 2017.

Section 2 provides that the instrument commences on 30 November 2017.

Section 3 clarifies that any instrument that is referred to in one of the schedules to the instrument is amended or repealed as specified in the applicable item in the relevant schedule.

Section 4 provides that a reference in the instrument to a CAO identified by a specified number is taken to include a reference to the section of the CAOs with that number. The purpose of this subsection is to address the different ways in which CAOs are described. As the Note explains, some existing CAOs are referred to as a CAO followed by a number (e.g. Civil Aviation Order 95.12), while others are referred to as a section of the CAOs (e.g. section 20.16.3 of the CAOs).

The instrument contains 3 Schedules. Schedule 1 amends the Part 21 MOS. Schedule 2 repeals obsolete legislative instruments. Schedule 3 makes consequential amendments to various legislative instruments to reflect the repeals made by Schedule 2.

Schedule 1 – Amendments to Part 21 Manual of Standards

Schedule 1 of the instrument amends the Part 21 MOS.

Item 1 of Schedule 1 repeals section 1.5 of the Part 21 MOS. That section provided for the repeal of sections 8.5 and 13.1 of the Part 21 MOS at the end of 30 November 2017. Given the amendments made by items 3 and 4 of Schedule 1, the repeal of those sections at that time is no longer required.

Item 2 of Schedule 1 amends section 1.10 of the Part 21 MOS by inserting 3 new definitions. The definitions include abbreviations for the European Organisation for Civil Aviation Equipment (EUROCAE) and RTCA, Inc. (RTCA), which are organisations which publish standards that are mentioned in the ATSOs.

Item 3 of Schedule 1 repeals section 8.5 of the Part 21 MOS, which prescribed requirements for subparagraphs 21.184 (4) (a) (ii) and 21.184A (2) (a) (ii) of CASR by reference to CAO 101.55 as in force immediately before 1 June 2016. As noted above, CASA is not incorporating the standards prescribed in CAO 101.55.

Item 4 of Schedule 1 is the main provision of this instrument. It replaces section 13.1 of the Part 21 MOS with new sections 13.1 and 13.2, Part 14 and Schedules 1 to 28 of the Part 21 MOS.

New section 13.1 provides an overview of the legislative basis and purpose of Part 13 of the MOS. Subsection 13.1 (1) explains that the term “ATSO” is short for Australian Technical Standard Order. Subsection 13.1 (2) refers to Subpart 21.O of CASR, noting that it sets out the requirements that must be met for CASA to issue an ATSO authorisation or a letter of ATSO design approval. Subsection 13.1 (3) notes the definition of ATSO in paragraph 21.601 (2) (a) of CASR, being a minimum performance standard prescribed by the Part 21 MOS for specified articles used on civil aircraft, and that Part 13 of the Part 21 MOS prescribes those minimum performance standards.

New subsection 13.2 (1) of the Part 21 MOS prescribes the minimum performance standard for specified articles used on civil aircraft. It contains a table that refers to the ATSOs set out in Schedules 21 to 28 of the Part 21 MOS. Column 1 of the table lists 8 articles used on civil aircraft. Column 2 of the table specifies the Schedule of the Part 21 MOS that prescribes the minimum performance standard for each article and includes an ATSO number and title.

Subsection 13.2 (2) provides for the citation of the ATSOs set out in the Schedules to the Part 21 MOS that are listed in the table. It provides that a Schedule may be cited as the ATSO number mentioned in relevant item of the table. It includes an example of how Schedule 21 may also be cited as ATSO-1C13a.

New Part 14 is inserted to contain transitional provisions for the Part 21 MOS as it is amended from time to time. A place marker is included for Divisions 14.1 to 14.12 in the event that any transitional provisions are required in the future for Parts 1 to 12 of the Part 21 MOS respectively.

Division 14.13 is inserted to contain transitional provisions for Part 13 of the Part 21 MOS. New subsection 14.130 is a transitional provision for the purpose of recognising the ATSO authorisations and letters of ATSO design approval, and the related ATSO, that were in force for an article immediately before the commencement of this instrument. It provides that the ATSO authorisations and letters of ATSO design approval continue in force according to their terms as if Part 13, as in force on 29 November 2017, had not been amended. Part 13, as in force on 29 November 2017, incorporated by reference the ATSOs issued by CASA as in force immediately before 1 June 2016. This transitional provision will allow the relevant minimum performance standard to continue to be recognised as the applicable ATSO for articles manufactured by the article manufacturer, despite the repeal and substitution of section 13.1 made by this instrument.

Schedules 1 to 20

The instrument inserts placeholders for Schedules 1 to 20 of the Part 21 MOS to facilitate future amendments to the MOS if Schedules are required for provisions in Parts 1 to 12 of the MOS.

Schedules 21 to 28

These Schedules contain the ATSOs. In accordance with subsection 98 (5D) of the Act, each of the ATSOs applies, adopts or incorporates matters contained in other standards and documents as in force or existing at a particular time or from time to time. The issue of incorporating matters by reference is discussed later in this Explanatory Statement.

Schedule 21: ATSO-1C13a — Life preservers

This ATSO prescribes the minimum performance standards that a manufacturer of a life preserver must meet in order for the life preserver to be identified with the applicable ATSO marking and for the life preserver to be an approved article for the purpose of meeting the provisions of the regulations that require the article to be approved.

Clause 3 of Schedule 21 prescribes the minimum performance standards. The life preserver must be of an inflatable type. Unless the life preserver is for an infant, it must be fitted with a whistle in suitable stowage.

The life preserver must also meet additional performance standards described by reference to a Technical Standard Order (TSO) issued by the Federal Aviation Administration of the United States of America (FAA). FAA TSO-C13f and FAA TSO-C13g describe minimum performance standards for life preservers. FAA TSO‑C13f was issued in 1992. FAA TSO-C13g was issued with an effective date of 3 February 2017 and states that TSO-C13f will remain in force until 3 August 2018, after which applications for TSO-C13f will no longer be accepted.

The standards in paragraphs 3 (1) (c) and (d) of Schedule 21 reflect this transitional arrangement. The applicable standards depend of the date on which the relevant application for an ATSO authorisation or submission relating to a letter of ATSO design approval is received by CASA. For applications received by CASA after 3 August 2018, the life preserver must meet the performance standards mentioned in FAA TSO-C13g. For applications received by CASA by that date, the life preserver must meet the performance standards either in FAA TSO-C13g or as described in paragraph 3 (2) (b). The performance standards described in paragraph 3 (2) (b) are intended to reflect the standards previously contained in ATSO-1C13, which is superseded by this Schedule.

The FAA TSOs contain several references to legislative provisions and administrative arrangements that are specific to the American context. Subclauses 3 (4) and (5) deem references in the FAA TSOs to American provisions and arrangements to be references to specified Australian provisions and arrangements.

Schedule 22: ATSO-1C74c — Airborne ATC transponder equipment

This ATSO prescribes the minimum performance standards that a manufacturer of airborne air traffic control transponder equipment must meet in order for the equipment to be identified with the applicable ATSO marking and for the equipment to be an approved article for the purpose of meeting the provisions of the regulations that require the article to be approved.

On 31 January 2001, CASA issued ATSO‑1C74c. That issue of ATSO‑1C74c replicated the details of FAA TSO-C74c and contained a note stating that it is identical with FAA TSO‑C74c with the “Environmental Conditions and Test Procedures for Airborne Equipment” revised from RTCA DO‑138 to RTCA DO‑160D. Rather than set out the details in TSO-C74c, the minimum performance standards in clause 3 of Schedule 22 require the equipment to meet the requirements of FAA TSO-C74c, other than the requirements mentioned in paragraph (e) of FAA TSO-C74c, which paragraph relates to previously approved equipment.

FAA TSO-C74c contains several references to RTCA Document No. DO‑138, which was superseded by RTCA Document No. DO‑160D. Subclause 3 (2) deems those references to be references to corresponding provisions of RTCA Document No. DO‑160D, or a later version of RTCA Document No. DO‑160 as existing from time to time. FAA TSO-C74c also contains several references to legislative provisions and administrative arrangements that are specific to the American context. Subclause 3 (2) deems references in the FAA TSO to American provisions and arrangements to be references to specified Australian provisions and arrangements.

The minimum performance standards in Schedule 22 are intended to be the same in substance as the minimum performance standards in ATSO‑1C74c as issued by CASA on 31 January 2001.

Schedule 23: ATSO-1C112 — Air traffic control radar beacon system/mode select (ATCRBS/MODE S) airborne equipment

This ATSO prescribes the minimum performance standards that a manufacturer of ATCRBS/MODE S airborne equipment must meet in order for the equipment to be identified with the applicable ATSO marking and for the equipment to be an approved article for the purpose of meeting the provisions of the regulations that require the article to be approved.

The minimum performance standards in Schedule 23 are intended to be the same in substance as the minimum performance standards in ATSO‑1C112 as issued by CASA and dated 30 May 2006.

Clause 2 contains definitions of the various standards published by RTCA, Inc. and EUROCAE that are referred to in the Schedule.

Under subclause 3 (1), the equipment must meet the requirements of either section 2 of DO-181 called “Minimum Operational Performance Standards for Air Traffic Control Radar Beacon System/Mode Select (ATCRBS/Mode S) Airborne Equipment” published by RTCA, Inc., or ED‑73 called “Minimum Operational Performance Specification for Secondary Surveillance Radar MODE S Transponders” published by EUROCAE.

Under subclause 3 (2), the equipment must have a design assurance level commensurate with its failure condition classification as “major”. The concept of a design assurance level is extensively described in the document DO-178C published by RTCA, Inc. called Software Considerations in Airborne Systems and Equipment Certification. The concept of failure condition classification is described in the appropriate certification specification guidance material (section XX.1309). For example, EASA AMC 25.1309 classifies failure conditions according to the severity of their effects as catastrophic, hazardous, major, minor or “no safety effect”. EASA AMC 25.1309 can be found in Book 2 of EASA Certification Specifications CS‑25 at: https://www.easa.europa.eu/certification-specifications/cs-25-large-aeroplanes. The concepts of design assurance level and failure condition classification are well understood by designers working on aviation software projects or complex electronic hardware projects.

Clause 4 prescribes minimum performance standards relating to the test conditions required for the testing of the equipment. Equipment that meets the requirements of section 2 of RTCA/DO‑181 is to be tested in accordance with RTCA/DO‑160D. Equipment that meets the requirements of ED‑73 is to be tested in accordance with ED‑14.

Clause 5 contains minimum performance standards relating to fire protection properties of the material used in the equipment.

Clause 6 contains minimum performance standards relating to marking the equipment and components of the equipment. These requirements are additional to those in paragraph 21.607 (1) (c) of CASR.

Clause 7 prescribes the technical data that must accompany an application for an ATSO authorisation for the purposes of paragraph 21.605 (2) (b) of CASR.

Clause 8 prescribes the data and information that must be included with the equipment when it is supplied by an article manufacturer, including information necessary for the proper installation, use and continued airworthiness of the equipment.

Schedule 24: ATSO-C1001 — Dispatcher’s restraint strap

This ATSO prescribes the minimum performance standards that a manufacturer of a dispatcher’s restraint strap must meet in order for the strap to be identified with the applicable ATSO marking and for the strap to be an approved article for the purpose of meeting the provisions of the regulations that require the article to be approved.

The term dispatcher’s restraint strap is defined in clause 2. It is an adjustable restraint line attached to an aircraft and an occupant, who is not seated with a seat belt or harness fastened while the cabin door or hatch is open, to prevent the wearer from falling from the aircraft when carrying out duties. The strap would typically be used by a camera operator or dispatcher.

The minimum performance standards in Schedule 24 are intended to be the same in substance as the minimum performance standards in ATSO‑C1001 as issued by CASA and dated 16 June 2000.

The minimum performance standards prescribed in clause 3 are based on the joint Australian and New Zealand standard, AS/NZS 1891.1:1995, as it relates to restraint lines. That document provides standards for industrial arrest systems and devices, including safety belts and harnesses. Subclauses 3 (2) to (6) provide exceptions and alternative requirements to some of the design, testing and other requirements of AS/NZS 1891.1:1995.

Clause 4 prescribes an additional minimum performance standard requiring the strap to incorporate a quick-release device that meets the specified standards.

Clause 5 contains minimum performance standards relating to marking of the strap with instructions for its adjustment for the purpose of ensuring its safe use. This requirement is additional to the requirements in paragraph 21.607 (1) (c) of CASR.

Clause 6 prescribes the technical data that must accompany an application for an ATSO authorisation for the purposes of paragraph 21.605 (2) (b) of CASR.

Clause 7 prescribes the information that must be included with the strap when it is supplied by an article manufacturer, including information requiring the user of the strap to refer to approved data for approved harness types and hard points.

Schedule 25: ATSO-C1002 — Refrigerated cargo unit load container

This ATSO prescribes the minimum performance standards that a manufacturer of a refrigerated cargo unit load container must meet in order for the container to be identified with the applicable ATSO marking and for the container to be an approved article for the purpose of meeting the provisions of the regulations that require the article to be approved.

The minimum performance standards in Schedule 25 are intended to be the same in substance as the minimum performance standards in ATSO‑C1002 as issued by CASA and dated 12 January 2001.

Clause 2 contains definitions of the various standards published by the Aerospace Industries Association of America, Inc., RTCA, Inc. and the International Air Transport Association that are referred to in the Schedule.

Clauses 3 to 6 contain general minimum performance standards that require the container to meet requirements in various specified standards.

Subclause 7 (1) contains minimum performance standards relating to fire protection properties of the material used in the container prescribed by reference to requirements in the FARs. The term FARs is defined in the Dictionary in CASR to mean the Federal Aviation Regulations in Chapter 1 (Federal Aviation Administration, Department of Transportation) of Title 14 of the Code of Federal Regulations as published by the Office of the Federal Register National Archives and Records Administration of the United States of America.

Subclause 7 (2) contains minimum performance standards relating to the design of the container relating to protection from overheating and activation of fire detection systems.

Clause 8 contains minimum performance standards relating to dangerous goods by reference to the Technical Instructions for the Safe Transport of Dangerous Goods by Air (Technical Instructions), issued by the International Civil Aviation Organization. Special Provision A26 in Part 3, Chapter 3 of the Technical Instructions excludes specified refrigerating machines and components from being subject to the Technical Instructions. Subclause 8 (1) requires that the refrigeration unit for the container must not be excluded from being subject to the Technical Instructions because of Special Provision A26. Subclause 8 (2) requires that lubricating oils used in the container not be a flammable liquid within the meaning of Part 2, Chapter 3 of the Technical Instructions. That Part contains a technical definition of what is a flammable liquid by reference to its flash point under specified test conditions.

Clause 9 contains minimum performance standards relating to marking of the container. These requirements are additional to the requirements in paragraph 21.607 (1) (c) of CASR.

Clause 10 prescribes the technical data that must accompany an application for an ATSO authorisation for the purposes of paragraph 21.605 (2) (b) of CASR.

Clause 11 prescribes the information that must be included with the container when it is supplied by an article manufacturer, including instructions on installation, servicing, operation, maintenance and repair of the container.

Schedule 26: ATSO-C1003 — Helicopter external personnel lifting devices

This ATSO prescribes the minimum performance standards that a manufacturer of a helicopter external personnel lifting device must meet in order for the device to be identified with the applicable ATSO marking and for the device to be an approved article for the purpose of meeting the provisions of the regulations that require the article to be approved. A helicopter external personnel lifting device may be either a winchman’s or rescue harness or a rescue or retrieval strop combination.

The minimum performance standards in Schedule 26 are intended to be the same in substance as the minimum performance standards in ATSO‑C1003 as issued by CASA and dated 28 January 2003.

The minimum performance standards prescribed in clause 3 are based on the joint Australian and New Zealand standard, AS/NZS 1891.1:1995 Amdt 4, as it relates to fall-arrest harnesses or retrieval straps. That document provides standards for industrial arrest systems and devices, including safety belts and harnesses.

Subclauses 3 (3) to (6) provide exceptions and alternative requirements to some of the testing and other requirements of AS/NZS 1891.1: 1995 Amdt 4.

Subclauses 3 (7) to (9) contain additional minimum performance standards for a helicopter external personnel lifting device. Subclause 3 (7) prescribes requirements for a quick-release device if one is incorporated into a helicopter external personnel lifting device when attached to the winch hook. Subclause 3 (8) requires compliance with the requirements in § 29.865 of the FARs, which contains detailed requirements relating to systems used for carrying external loads. Subclause 3 (9) requires that the helicopter external personnel lifting device must be designed to minimise the possibility of unintentional disengagement during all modes of operation.

Clause 4 prescribes the technical data that must accompany an application for an ATSO authorisation for the purposes of paragraph 21.605 (2) (b) of CASR. They include conformity inspection reports for the tested components of the device. In this context, the tested components are the components or sub-assemblies that are tested for compliance with the applicable functional requirements outlined in the ATSO. Conformity requires demonstration that the component corresponds to approved design in all required aspects.

Clause 5 prescribes the documents and information that must be included with the device when it is supplied by an article manufacturer, including instructions on installation, operation and maintenance of the device.

Schedule 27: ATSO-C1006 — Restraint system automated release device

This ATSO prescribes the minimum performance standards that a manufacturer of a restraint system automated release device (RSARD) must meet in order for the device to be identified with the applicable ATSO marking and for the device to be an approved article for the purpose of meeting the provisions of the regulations that require the article to be approved.

An RSARD is defined in clause 2 to mean an add-on dual-purpose restraint‑release device used in conjunction with a restraint and an anchor point in the aircraft that keeps a person or item restrained inside the aircraft during flight and automatically activates to release the person or item from the anchor point if the aircraft ditches or crashes into water. For this Schedule, an RSARD must not be aircraft type specific.

The minimum performance standards in Schedule 27 are intended to be the same in substance as the minimum performance standards in ATSO‑C1006 (F2012L00641) as issued by CASA and dated 9 March 2012.

Clause 3 sets out the testing standards that must be met by the RSARD for specified environmental conditions mentioned in RTCA Document RTCA/DO‑160G.

Clauses 4 and 5 prescribe minimum performance standards for an RSARD in restraint mode and release mode, respectively. Clause 6 prescribes a minimum performance standard requiring any electrical circuitry for the RSARD to be capable of self-diagnosing internal faults and clearly indicating to the end user the presence of the faults.

Clause 7 contains minimum performance standards relating to marking the RSARD. These requirements are additional to those in paragraph 21.607 (1) (c) of CASR.

Clause 8 prescribes the technical data that must accompany an application for an ATSO authorisation for the purposes of paragraph 21.605 (2) (b) of CASR.

Clause 9 prescribes the documents and information, being the operating instructions and limitations and the component maintenance manual for the RSARD, that must be included with the device when it is supplied by an article manufacturer.

Schedule 28: ATSO-C1007b — Flight data recorder interface unit

This ATSO prescribes the minimum performance standards that a manufacturer of a flight data recorder interface unit (FDRIU) must meet in order for the unit to be identified with the applicable ATSO marking and for the unit to be an approved article for the purpose of meeting the provisions of the regulations that require the article to be approved. An FDRIU is a unit mounted on an airframe of an aircraft that functions as the interface between analogue aircraft systems and digital flight recorders.

The minimum performance standards in Schedule 28 are intended to be the same in substance as the minimum performance standards in ATSO‑C1007b (F2014L01625) as issued by CASA and dated 27 November 2014.

Clause 3 specifies the parameters that the FDRIU must process and the parameters that are optional for it to process. It also contains a table specifying the required range, accuracy and maximum recording intervals for each parameter. These standards reflect Appendix I of CAO 103.19, which specifies applicable airworthiness standards for flight data recorders. The accuracy standards in the table specify a figure for the maximum acceptable error for each parameter. The data, when recorded and subsequently output, must be correct to a figure within the specified margin.

Clause 4 prescribes minimum performance standards for the signal characteristic of the FDRIU by reference to the document ARINC Characteristic 717‑15 Flight Data Acquisition and Recording System published by Aeronautical Radio Inc.

Under clause 5, the FDRIU must have a design assurance level commensurate with its failure condition classification as “minor”. The concept of a design assurance level is extensively described in the document DO-178C published by RTCA, Inc. called Software Considerations in Airborne Systems and Equipment Certification. The concept of failure condition classification is described in the appropriate certification specification guidance material (section XX.1309). For example, EASA AMC 25.1309 classifies failure conditions according to the severity of their effects as catastrophic, hazardous, major, minor or “no safety effect”. EASA AMC 25.1309 can be found in Book 2 of EASA Certification Specifications CS‑25 at: https://www.easa.europa.eu/certification-specifications/cs-25-large-aeroplanes. The concepts of design assurance level and failure condition classification are well understood by designers working on aviation software projects or complex electronic hardware projects.

Clauses 6 to 9 prescribe minimum performance standards for environmental testing, electronic software and hardware of the FDRIU, and fire protection properties of the material used in the manufacture of the FDRIU. The standards are prescribed by reference to standards in various document published by RTCA, Inc.

Clause 10 contains minimum performance standards relating to marking components of the FDRIU. These requirements are additional to those in paragraph 21.607 (1) (c) of CASR.

Clause 11 prescribes the documents and information that must be included with the FDRIU when it is supplied by an article manufacturer. It requires the supply of the technical data mentioned in paragraphs 12 (a) to (f) of the Schedule and any other data or information necessary for the proper installation, use and continued airworthiness of the FDRIU.

Clause 12 prescribes the technical data that must accompany an application for an ATSO authorisation for the purposes of paragraph 21.605 (2) (b) of CASR. It includes the installation procedures for the FDRIU and limitations, including descriptions of the extent to which the FDRIU, when installed according to the installation procedures, will continue to meet the requirements of Schedule 28. This requires a statement that the FDRIU can be expected to continue to meet the ATSO performance specifications over time. The installation procedures must also include descriptions of any unique aspects of the installation. This requires a description of any aspect of the installation that is not representative of a typical installation of equipment of this kind.

Schedule 2 — Repeal of instruments

Item 1 of Schedule 2 of the instrument repeals 6 legislative instruments containing ATSOs.

The ATSOs mentioned in paragraphs (a) and (b) of item 1 of the Schedule (ATSO‑C1004a and ATSO‑C1005a) are no longer required. No authorisations have been issued in relation to those ATSOs and CASA anticipates that they will not be used in the future.

The ATSO mentioned in paragraph (c) of item 1 of the Schedule (ATSO C1006) is no longer required because the standards in that ATSO are reflected in new Schedule 27 of the Part 21 MOS, as inserted by item 4 of Schedule 1 of this instrument.

The ATSOs mentioned in paragraphs (d) and (e) of item 1 of the Schedule (ATSO‑C1007 and ATSO‑C1007a) are no longer required. No authorisations have been issued in relation to those ATSOs and they have been superseded. The appropriate standards for the specified articles, being flight data recorder interface units, are reflected in new Schedule 28 of the Part 21 MOS (ATSO‑1007b), as inserted by item 4 of Schedule 1 of this instrument.

The ATSO mentioned in paragraph (f) of item 1 of the Schedule (ATSO C1007b) is no longer required because the standards in that ATSO are reflected in new Schedule 28 of the Part 21 MOS, as inserted by item 4 of Schedule 1 of the instrument.

The minimum performance standards that relate to articles mentioned in new Schedules 21 to 26 of the Part 21 MOS were contained in ATSOs that had been issued by CASA and published on CASA’s website, but had not been registered on the Federal Register of Legislation. Those ATSOs are being repealed by a separate instrument that is not a legislative instrument.

Item 2 of Schedule 2 of the instrument repeals Civil Aviation Amendment Order (No. R94) 2004. To avoid doubt, item 3 of Schedule 2 of the instrument also repeals CAO 101.55, which appears on the Federal Register of Legislation as a Schedule to Civil Aviation Amendment Order (No. R94) 2004. The standards in that Order were available for applications for special certificates of airworthiness for primary category and intermediate category aircraft, but, in practice, are no longer in use for new aircraft. Therefore, CASA has decided to omit the requirements in CAO 101.55 from the Part 21 MOS. Under Division 21.M of CASR, the standards previously in CAO 101.55 will remain available as an historical standard for the purposes of modification and repair of aircraft originally certified to those standards.

Schedule 3 — Amendments

Schedule 3 of the instrument makes consequential amendments to 10 legislative instruments.

Items 1 to 10 of Schedule 3 make consequential amendments to reflect the repeal of ATSO‑C1004a and ATSO‑C1005a by item 1 of Schedule 2 of the instrument.

Relevantly to those amendments:

• instrument CASA 61/14 was made under regulation 209 of CAR and relates to foreign aircraft engaged in private operations
• CAO 20.18 was made under regulation 207 of CAR and relates to all Australian registered aircraft
• CAOs 82.1, 82.3 and 82.5 were made under paragraph 28BA (1) (b) and subsection 98 (4A) of the Act and relate to aircraft operated under an AOC and engaged in regular public transport, charter or aerial work operations.

Each of those instruments contains provisions which require ADS-B transmitting equipment on the aircraft to be of a type that is authorised in a specified way. In each case, an option was for the ADS-B transmitting equipment to be of a type that is authorised by CASA in accordance with ATSO‑C1004a or ATSO‑C1005a. No equipment has been authorised by CASA in accordance with those ATSOs and they are being repealed by Schedule 2 of this instrument.

Items 2, 4, 6, 8 and 10 of Schedule 3 amend CASA 61/14 and CAOs 20.18, 82.1, 82.3 and 82.5 respectively, to reflect the repeal of ATSO‑C1004a and ATSO‑C1005a. They remove the option for the required ADS-B transmitting equipment to be of a type that is authorised by CASA in accordance with those ATSOs. As no equipment has been authorised by CASA in accordance with those ATSOs, items 2, 4, 6, 8 and 10 merely remove redundant provisions.

Items 1, 3, 5, 7 and 9 of Schedule 3 repeal the definition of ATSO in each of the instruments amended by this Schedule. Those definitions are no longer required because all references to the ATSOs in those instruments are omitted by the amendments in items 2, 4, 6, 8 and 10 of Schedule 3.

Items 11 to 17 of Schedule 3 make consequential amendments to reflect the repeal of CAO 101.55 by items 2 and 3 of Schedule 2 of the instrument. Those items replace references to specified provisions of CAO 101.55 with reference to those provisions as in force on 31 May 2016, being the day before the commencement of the amendment regulation.

The instruments amended by items 11 to 17 are CAOs 95.10, 95.12, 95.12.1, 95.32 and 95.55. Those CAOs include exemptions made under regulation 11.160 of CASR (or its predecessor regulation 308 of CAR) and apply to specified gyroplanes, small aeroplanes and ultralight aeroplanes. Each CAO contains conditions that must be met for the aircraft to fly in Class A, B, C or D airspace. The amended conditions were linked to compliance with provisions in CAO 101.55. Following the repeal of CAO 101.55, those conditions instead refer to the provisions of CAO 101.55 as it was in force on 31 May 2016.

Incorporation of standards by reference

Subsection 98 (5D) of the Act provides that, despite section 14 of the LA, an instrument made under the Act or the regulations may apply, adopt, or incorporate any matter contained in any instrument or other writing as in force or existing at a particular time or as in force or existing from time to time. In accordance with subsection 98 (5D) of the Act, the ATSOs in the Part 21 MOS apply, adopt or incorporate matters contained in standards and other documents as in force or existing at a particular time or from time to time. The standards come from a variety of sources, including national aviation authorities and private organisations.

In accordance with paragraph 15J (2) (c) of the LA, the following table contains a description of the documents incorporated by reference into the ATSOs, the organisation responsible for each document and how they may be obtained.

The documents that are not freely available are publicly available but subject to copyright. The cost of obtaining a copy of a standard is a matter for the article manufacturer that elects to use the standard. CASA has no effective control over those costs. However, by prior arrangement with CASA, copies of those documents can be made available for viewing free of charge at any office of CASA.

Legislation Act 2003

Under paragraph 98 (5A) of the Act, the regulations may empower CASA to issue instruments in relation to matters affecting the safe navigation and operation, or the maintenance, of aircraft and in relation to the airworthiness of, or design standards for, aircraft.

Under subsections 98 (5AA) to (5BA) of the Act, an instrument issued under subsection 98 (5A) is a legislative instrument unless it is expressed to apply in relation to a particular person, aircraft or aeronautical product. The provisions of the Part 21 MOS, issued under subsection 98 (5A) of the Act, are expressed to apply in relation to various classes of persons, aircraft or aeronautical products. Therefore, the Part 21 MOS is a legislative instrument.

Under subsection 8 (5) and paragraph 10 (1) (d) of the LA, an instrument is a legislative instrument if it includes a provision that amends or repeals another legislative instrument. This instrument amends the Part 21 MOS and other legislative instruments and repeals several legislative instruments.

Therefore, the instrument is a legislative instrument subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.

Consultation

For section 17 of the LA and regulation 11.280 of CASR, CASA conducted the following consultation for the instrument.

CASA’s consultation for the Part 21 MOS was made an integral part of the consultation undertaken for the amendment regulation which inserted the Part 21 MOS heads of power in CASR. The Explanatory Statement for the amendment regulation (see F2015L01980 ES) notes that the amendments to Part 21 of CASR were first considered by the Certification and Manufacturing Standards Sub‑committee of the Standards Consultative Committee in October 2014 and by the rest of industry and the public in March 2015. The Part 21 amendments were supported by the Sub-committee and industry.

On 11 October 2017, CASA published a consultation draft of this instrument, and a Summary explaining the proposed content of the instrument, on the CASA website (reference: CD 1706MS‑1). On 13 October 2017, an email was sent to relevant stakeholders alerting them to the publication of the Summary of the proposal and the draft instruments on the CASA website. CASA sought comments from the public on the draft instrument by 8 November 2017.

CASA received one submission from an industry participant on the Consultation Draft of the instrument. The submission was taken into account in finalising the instrument.

The instrument is largely machinery in nature. It makes changes to incorporate requirements and standards that were previously contained in other instruments that were incorporated by reference in the Part 21 MOS. It also repeals obsolete legislative instruments and makes consequential amendments.

CASA is satisfied that no further consultation is appropriate or reasonably practicable for this instrument for section 17 of the LA.

Office of Best Practice Regulation (OBPR)

The proposed instrument would have no impact on industry. Existing approval holders would continue business as usual under the existing ATSO arrangements. A Regulatory Impact Statement (RIS) is not required because the instrument is covered by a standing agreement between CASA and OBPR under which a RIS is not required for minor or machinery amendments to a MOS (OBPR id: 14507).

Statement of Compatibility with Human Rights

The Statement of Compatibility with Human Rights at Attachment 1 has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. This legislative instrument is compatible with human rights as it does not raise any human rights issues.

Making and commencement

The instrument has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.

The instrument commences on 30 November 2017 and is repealed, in accordance with section 48A of the LA, on the day after it commences.

[Civil Aviation Legislation Amendment and Repeal (Australian Technical Standard Orders) Instrument 2017]

Attachment 1

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011

Civil Aviation Legislation Amendment and Repeal
(Australian Technical Standard Orders) Instrument 2017

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

Part 21 of Civil Aviation Safety Regulations 1998 (CASR) deals with certification and airworthiness requirements for aircraft. The Part 21 Manual of Standards Instrument 2016 (the Part 21 MOS) prescribes matters:

• required or permitted by the regulations to be prescribed by the Part 21 MOS; or
• necessary or convenient to be prescribed for carrying out or giving effect to Part 21 of CASR.

The primary purpose of the Civil Aviation Legislation Amendment and Repeal (Australian Technical Standard Orders) Instrument 2017 is to amend the Part 21 MOS by inserting provisions that prescribe the minimum performance standards, known as Australian Technical Standard Orders (ATSOs), for specified articles used on civil aircraft. The standards inserted into the Part 21 MOS by this instrument were previously incorporated into the Part 21 MOS by reference to ATSOs contained in other instruments that had been issued by CASA.

Eight of the 10 ATSOs that were previously incorporated by reference in the Part 21 MOS are set out in new Schedules 21 to 28 of the Part 21 MOS that have been inserted by this legislative instrument.

The other 2 ATSOs (ATSO‑C1004a and ATSO‑C1005a) relate to ADS‑B equipment and are no longer required. No authorisations have been issued in relation to those ATSOs and CASA anticipates that they would not be used in the future.

New Schedule 21 of the Part 21 MOS will update the standards for life preservers used in civil aircraft so that they refer to a new Technical Standard Order issued by the Federal Aviation Administration of the United States of America.

Otherwise, the amendments largely reflect the previous standards in the ATSOs.

The instrument also repeals 6 legislative instruments containing ATSOs that are either reproduced in new Schedules 21 to 28 of the Part 21 MOS or are no longer required. The instrument also amends 5 other legislative instruments that are consequential to the repeal of ATSO‑C1004a and ATSO‑C1005a.

The instrument also repeals Civil Aviation Order (CAO) 101.55, which contained aircraft certification requirements for certain aeroplanes with a maximum take-off weight of up to 480 kg. The standards in that CAO were available for applications for special certificates of airworthiness for primary category and intermediate category aircraft, but, in practice, are no longer in use for new aircraft. The instrument amends 5 other CAOs as a consequence of the repeal of CAO 101.55.

Human rights implications

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. It 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