Civil Aviation Order 82.0 Amendment Instrument 2012 (No. 1)

Explanatory Statement

Civil Aviation Act 1988

Civil Aviation Order 82.0 Amendment Instrument 2012 (No. 1)

Purpose

The purpose of Civil Aviation Order 82.0 Amendment Instrument 2012 (No. 1) (the CAO Amendment) is to give primacy to the use of flight simulators in training for “relevant activities”, including non-normal exercises, in certain aircraft.

CAO 82.0 — legislative background

Under section 27 of the Civil Aviation Act 1988 (the Act), CASA may issue Air Operators’ Certificates (AOCs) with respect to aircraft, for the purpose of safety regulation. Under section 28 of the Act, CASA must issue the AOC if satisfied that the applicant can comply with the requirements of Australian civil aviation safety legislation.

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 (the CAOs). Part 82 of the CAOs specifies conditions on AOCs for various kinds of operations. Civil Aviation Order (CAO) 82.0 contains general conditions on all AOCs and also some related definitions. Thus, if new safety conditions are required for generic operations, these are usually placed in CAO 82.0.

Relevant activities including non-normal exercises

There are always some risks associated with the conduct of training in aircraft. For this reason CASA encourages, and in some cases mandates, the use of flight simulators or flight training devices for certain training.

This is particularly the case for competency training, checking, non-normal exercises, co-pilot training (relevant activities, as defined) and conversion training.

A non-normal exercise is an aircraft operation for flight crew training, checking or testing, which involves a simulated system failure of a kind that affects, or would be likely to affect, the flying performance or handling characteristics of the aircraft beyond the parameters of normal operation.

Thus, for example, CASA would consider any exercise involving the use of an emergency checklist (e.g. engine failure) or other procedure (e.g. stall recovery) to recover from a situation specified in the aircraft flight manual, to be a non-normal exercise.

Competency training, checking, non-normal exercises, co-pilot training and, in some cases, conversion training, are an essential part of the on-going training and competency requirements of certain flight crews.

However, because of the potentially catastrophic consequences of in-flight pilot error in some of these relevant activities when carried put in an aircraft, it is considered safer but no less effective for pilots to conduct such relevant activities in a qualified synthetic training device (QSTD) (that is, generally, a flight simulator or a flight training device).

Therefore, in the interests of greater safety, CASA has decided to more closely regulate the conduct of relevant activities in the target group of large aircraft and smaller multi‑engine aircraft.

This has been done principally by imposing additional conditions on AOCs to the effect that relevant activities may not be conducted in certain aeroplanes or helicopters if a QSTD is available, in Australia or overseas, in which to conduct the activity.

Conversion training

The CAO Amendment is made simultaneously with related amendments to CAO 40.1.0 and CAO 40.3.0 (concerning aircraft endorsements).

With respect to aeroplanes and helicopters, respectively, these other 2 CAO amendments provide that for the similar kinds of aircraft as are covered by this CAO Amendment, from 1 April 2013, conversion training (which can have similar risks of in‑flight pilot error as relevant activities) must be conducted in an available QSTD. The key definition of available is the same as in this CAO Amendment (see below).

The CAO Amendment

The CAO Amendment addresses relevant activities in 3 kinds of aircraft operated by AOC holders (for example, regular public transport operators, operators of larger aircraft, or operators specified by CASA) who are required to have a training and checking organisation under regulation 217 of the Civil Aviation Regulations 1988 (CAR 1988) (for this Explanatory Statement only, the 3 kinds of aircraft are descriptively called category (A), (B) and (C)):

(A) multi-engine aircraft for at least 10 passengers (passenger seating capacity, as defined); and

(B) any aircraft for at least 20 passengers; and

(C) any other aircraft specified in a new Schedule 8 that is reserved for future inclusions through further CAO amendments.

Unless an operator makes a convincing safety case to CASA for alternative arrangements, from 1 April 2013:

• operators of (A) category aircraft must use an appropriate QSTD in relevant activities if one is available in Australia; and
• operators of (B) category aircraft must use an appropriate QSTD in relevant activities if one is available, either in Australia or in a recognised foreign State (one of 19 States, as defined); and
• (for the future) operators of (C) category aircraft must use an appropriate QSTD in relevant activities if one is available, in accordance with the requirements of Schedule 8.

Available

For the CAO Amendment, “available” means that the QSTD:

(a)      exists in Australia or a recognised foreign State, as the case requires; and

(b)      is offered for use on a commercial basis; and

(c)      is serviceable and available to an operator to use or reserve for the operator’s use.

Recognised foreign State

For the CAO Amendment, recognised foreign State is defined as a foreign State approved by CASA for the CAO Amendment, and includes the following:

(a) Canada;

(b) Hong Kong (Special Administrative Region of China);

(c) New Zealand;

(d) United States of America;

(e) the following European Aviation Safety Agency (EASA) member States:

 (i) Belgium;

 (ii) Czech Republic;

 (iii) Denmark;

 (iv) Finland;

 (v) France;

 (vi) Germany;

 (vii) Ireland;

 (viii) Italy;

 (ix) Netherlands;

 (x) Norway;

 (xi) Portugal;

 (xii) Spain;

 (xiii) Sweden;

 (xiv) Switzerland;

 (xv) United Kingdom.

Non-application where actual flight is essential (except non-normal exercises)

The QSFD requirements do not apply if an operator requires a flight crew member to conduct an aircraft operation to determine competency or gain experience, and the operation does not involve a non-normal exercise.

Training and checking manuals

An operator who is required to use a QSTD for a relevant activity must include in its training and checking manual (TCM) details of course outlines, syllabuses and completion standards for the activity in the QSTD.

Mandatory training and checking in QSTD

An operator, required to use a QSTD for a relevant activity, must include in its TCM provision for each relevant flight crew member to undertake particular training and checks in the QSTD, every calendar year (that is, the year starting from 1 January).

Thus, if a QSTD for the operator’s aircraft type is available in Australia:

• for (A) category operators’ aircraft — 2 sessions of training and 2 checks; and
• for (B) category operators’ aircraft — 2 sessions of training and 2 checks; and
• for (C) category operators’ aircraft — Appendix 8 training and checks.

If a QSTD for the operator’s aircraft type is only available in a recognised foreign State:

• for (A) category operators’ aircraft — not applicable; and
• for (B) category operators’ aircraft — 2 sessions of training and 2 checks; and
• for (C) category operators’ aircraft — dependent on what Appendix 8 may in future prescribe.

Each session of training, and each check, must be at an interval of not less than 4 months from the other. A Note explains that nothing prevents additional sessions of training or checks being conducted at intervals of less than 4 months, though any such session or check would not count towards the minimum number required. There is also nothing to prevent the 2 checks being used to satisfy the operator’s separate obligations under regulation 217 of CAR 1988 for 2 annual checks (each at an interval of not less than 4 months from the other) for the purpose of testing operating crew competency.

Co-pilot endorsements

On and from 1 April 2013, an (A) category or (B) category operator must not permit a pilot with a co-pilot (aeroplane) endorsement to be a flight crew member of an aeroplane unless the pilot completes, in the QSTD for the aeroplane type, training consistent with that required by paragraphs 1 (a) and 1 (d) in Appendix III of CAO 40.1.0. This training relates to stalling and asymmetric flight.

Summary table for guidance

For guidance only, a table sets out in a simplified form, the mandatory training and checking requirements:

Legislative Instruments Act 2003 (the LIA)

Paragraph 28BA (1) (b) of the Act provides that an AOC has effect subject to any conditions “specified in the regulations or Civil Aviation Orders”.

Subsection 98 (4A) of the Act provides that CASA may issue CAOs with respect to any matter in relation to which regulations may be made for the purposes of section 28BA.

Under subsection 98 (4B) of the Act, a CAO issued under subsection 98 (4A) is stated to be a legislative instrument and is, therefore, subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.

By providing that an AOC has effect subject to any conditions specified in the regulations or CAOs, paragraph 28BA (1) (b) of the Act is a separate head of power for the making of relevant CAOs. For section 5 of the LIA, such CAOs would be legislative instruments subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.

The CAO Amendment is made under both paragraph 28BA (1) (b) of the Act and subsection 98 (4A) of the Act and is a legislative instrument.

Consultation

Consultation under section 17 of the LIA has been carried out through the publication of a CASA Discussion Paper in December 2009, a Notice of Proposed Rule Making (NPRM) in October 2010, and further consultation with respondents to the NPRM from December 2011 to February 2012.

Regulation Impact Statement

A Regulation Impact Statement was prepared by CASA and assessed by the Office of Best Practice Regulation as meeting the Australian Government’s Best Practice Regulation requirements (OBPR ID: 13510). It is attached at Appendix 2.

Statement of Compatibility with Human Rights

The following Statement is prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

The purpose of the CAO Amendment is to give primacy to the use of qualified synthetic training devices (for example, flight simulators) in training for “relevant activities” in certain aircraft operated under an AOC. “Relevant activities” are defined as competency training, checking, non-normal exercises, and co-pilot training, and are generally safer when conducted in a qualified synthetic training device.

The instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The instrument does not engage any of the applicable rights or freedoms, and is compatible with human rights, as it does not raise any human rights issues.

Commencement and making

The CAO Amendment takes effect on the day after registration and simultaneously with the 2 related CAO amendments. It has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.

[Civil Aviation Order 82.0 Amendment Instrument 2012 (No. 1)]

Appendix 1

Details of Civil Aviation Order 82.0 Amendment Instrument 2012 (No. 1)

1 Name of instrument

  Under this section, the instrument is the Civil Aviation Order 82.0 Amendment Instrument 2012 (No. 1).

2 Commencement

  Under this section, the instrument commences on the day after registration.

3 Amendment of Civil Aviation Order 82.0

  Under this section, Schedule 1 amends Civil Aviation Order 82.0.

Schedule 1 Amendment

[1] Amendment No. 1 inserts new subsections 7, 8, 9 and 10

New subsection 7 deals with the primacy of synthetic training devices in training.

 7.1 Paragraph 7.1 provides definitions for various words and expressions used in subsections 7 and 10. A key expression is relevant activity which means any training for flight carried out by or for an operator, including training and checking, non-normal exercises and co-pilot training. Other definitions are at the end of this summary and include: available (for the availability of a qualified synthetic training device in Australia or in a recognised foreign State), checking, training and passenger seating capacity.

 7.2 Under paragraph 7.2, the requirements of subsection 7 apply to an AOC authorising aerial work operations, charter operations or regular public transport operations if the AOC holder (the operator):

(a) is required to have a training and checking organisation under regulation 217 of CAR 1988; and

(b) under the AOC, operates:

 (i) a multi-engine aircraft with a passenger seating capacity of at least 10; or

 (ii) an aircraft with a passenger seating capacity of at least 20 seats; or

 (iii) an aircraft, or an aircraft type, specified in, but subject to the conditions mentioned for it in, Appendix 8 of this Order.

A Note explains that CASA may in future amend the CAO to include other particular aircraft or aircraft types if safety requires that they should be supported by training using a QSTD.

Alternatively, as explained in a second Note, if aviation safety requires it, CASA may impose conditions on the AOC of a holder not otherwise covered by subsection 7, requiring the holder to use QSTDs.

 7.3 Under paragraph 7.3, unless CASA approves otherwise in writing (on the basis of the operator’s safety case), on and from 1 April 2013, for a relevant activity:

(a) the operator of a multi-engine aircraft with a passenger seating capacity of at least 10 but not more than 19 seats must use a QSTD for the type if one is available in Australia; and

(b) the operator of an aircraft with a passenger seating capacity of at least 20 seats must use a QSTD for the type if one is available in Australia or in a recognised foreign State; and

(c) the operator of an aircraft, or aircraft type, specified in Appendix 8 must use a QSTD for the aircraft or aircraft type if one is available, in accordance with the requirements of Appendix 8.

A Note explains that synthetic training device user approvals are issued under regulation 60.055 of the Civil Aviation Safety Regulations 1998 (CASR 1998). Where a QSTD for an aircraft type operated by an operator is available in Australia or in a recognised foreign State, the obligation is on the operator to obtain the appropriate user approval in order to avoid non-compliance with paragraph 7.3 in relation to the relevant activity.

 7.4 However, under paragraph 7.4, paragraph 7.3 does not apply to an operator if:

(a) the operator requires a flight crew member to conduct an aircraft operation to determine competency or gain experience; and

(b) the operation does not involve a non-normal exercise.

Amendment No. 1 also contains new subsection 8 dealing with pilots with co-pilot endorsements. It applies to an operator to whom new sub‑subparagraph 10.1 (a) (i) or (ii), or subparagraph 10.1 (b) of the Order applies and is dealt with below.

Amendment No. 1 also contains new subsection 9 dealing with TCMs.

 9.1 Under paragraph 9.1, an operator who is required to use a QSTD for a relevant activity under paragraph 7.3 must include in its TCM details of course outlines, syllabuses and completion standards for any relevant activity in the synthetic training device.

 9.2 However, paragraph 9.1 does not affect any other legislative requirements imposed on the operator in relation to the content of TCMS.

  A Note explains that Appendix 2 in each of CAO 82.1, 82.3 and 82.5 also deals with the contents of a TCM.

  Amendment No. 1 also contains new subsection 10 dealing with mandatory training and checking in synthetic training devices.

 10.1 Under paragraph 10.1, an operator who is required to use a QSTD for a relevant activity under paragraph 7.3, must include in its TCM provision for each flight crew member of an aircraft operated under its AOC to undertake, each calendar year, certain sessions of training and checks in a QSTD for the aircraft type:

(a) if the QSTD is available in Australia:

 (i) for a multi-engine aircraft with a passenger seating capacity of at least 10 seats — 2 sessions of training and 2 checks; and

 (ii) for an aircraft with a passenger seating capacity of at least 20 seats — 2 sessions of training and 2 checks; and

(b) if a QSTD is only available in a recognised foreign State, then, for an aircraft with a passenger seating capacity of at least 20 seats — 2 sessions of training and 2 checks; and

(c) if an aircraft or an aircraft type is specified in Appendix 8 of the Order — the number of sessions of training and the number of checks specified in Appendix 8.

  A Note explains that if aviation safety requires it, CASA may opt, under paragraph 28BB (1) (b) of the Act, to impose conditions on the AOC of a holder not otherwise covered by subsections 7 and 10, requiring that the holder must not permit a pilot to be a member of the flight crew unless the person has completed training and checks, in a QSTD, similar to those provided for under subsection 10.

 10.2 Under paragraph 10.2, each session of training mentioned in paragraph 10.1 must be at intervals of not less than 4 months.

 10.3 Under paragraph 10.3, each check mentioned in paragraph 10.1 must be at intervals of not less than 4 months.

  A Note explains that nothing prevents additional sessions of training or checks being conducted at intervals of less than 4 months. However any such session or check does not count towards the minimum number required under paragraph 10.1.

 10.4 Under paragraph 10.4, it is made clear that nothing in paragraph 10.2 or 10.3 prevents a session of training in a QSTD being immediately followed by a check in the same device.

 10.5 Under paragraph 10.5, the requirements in paragraph 10.1 are shown in a simplified form in a following table for guidance only.

 10.6 Under paragraph 10.6, it is made clear that subsection 10 does not affect any other legislative requirements imposed on the operator in relation to the use of synthetic training devices in training and checking.

A Note explains that Appendix 2 in each of CAO 82.1, 82.3 and 82.5 also deals with training and checking for operators to whom subsection 10 may apply.

  As mentioned above, Amendment No. 1 also contains new subsection 8 dealing with pilots with co-pilot endorsements. It applies to an operator to whom new sub-subparagraph 10.1 (a) (i) or (ii), or subparagraph 10.1 (b) of the Order applies.

 8.1 Under paragraph 8.1, on and from 1 April 2013, an operator to whom sub‑subparagraph 10.1 (a) (i) or (ii), or subparagraph 10.1 (b) applies must not permit a pilot with a co-pilot (aeroplane) endorsement to be a flight crew member of an aeroplane unless the pilot completes, in the QSTD for the aeroplane type, training consistent with that required by paragraphs 1 (a) and 1 (d) in Appendix III of CAO 40.1.0. (This training relates to stalling and asymmetric flight.)

[2] Amendment No. 2 creates Appendix 8 for sub-subparagraph 7.2 (b) (iii) and subparagraph 7.3 (c)

The Appendix is reserved for future amendment to include other particular aircraft or aircraft types for which it emerges that aviation safety requires that they should be supported by training using a QSTD in accordance with the Order.

 Definitions

  A number of definitions are included in new paragraph 7.1 referred to above and are listed here:

  available, for the availability of a QSTD to an operator (the operator), means that the QSTD:

(a) exists in Australia or a recognised foreign State, as the case requires; and

(b) is offered for use on a commercial basis; and

(c) is serviceable and available to an operator to use or reserve for the operator’s use.

  checking, in training and checking, means a check, approved by CASA, and described in the TCM, to test the competency of a flight crew member for an aircraft type for subregulation 217 (2) of CAR 1988.

  co-pilot training means co-pilot training for subsection 8.

  maximum certificated passenger seating capacity means the maximum number of seats for persons (excluding flight crew and cabin crew) in an aircraft as specified in the aircraft’s type certificate data sheet.

  non-normal exercise (or exercise) means an aircraft operation which involves a simulated system failure of a kind that affects, or would be likely to affect, the flying performance or handling characteristics of the aircraft beyond the parameters of normal operation.

Note    For example, CASA would consider any exercise involving the use of an emergency checklist (e.g. engine failure) or other procedure (e.g. stall recovery) to recover from a situation specified in the aircraft flight manual, to be a non-normal exercise.

  passenger seating capacity means maximum certificated passenger seating capacity.

  qualified, for a synthetic training device, means:

(a)      if the synthetic training device is available in Australia — qualified under Part 60 of the CASR 1998 for relevant activity; or

(b)      if the synthetic training device is only available in a recognised foreign State — approved by the national airworthiness authority (NAA) of the State for use equivalent to the use the device could be put to if it were qualified under Part 60 of CASR 1998 for relevant activity.

  recognised foreign State means a foreign State approved by CASA for this subsection and includes the following:

(a) Canada;

(b) Hong Kong (Special Administrative Region of China);

(c) New Zealand;

(d) United States of America;

(e) the following European Aviation Safety Agency (EASA) member States:

 (i) Belgium;

 (ii) Czech Republic;

 (iii) Denmark;

 (iv) Finland;

 (v) France;

 (vi) Germany;

 (vii) Ireland;

 (viii) Italy;

 (ix) Netherlands;

 (x) Norway;

 (xi) Portugal;

 (xii) Spain;

 (xiii) Sweden;

 (xiv) Switzerland;

 (xv) United Kingdom.

  relevant activity means any training for flight carried out by or for an operator, including training and checking, non-normal exercises and co-pilot training.

  training, in training and checking, means training, approved by CASA, and described in the TCM, to ensure that a flight crew member maintains his or her competency for an aircraft type for subregulation 217 (1) of CAR 1988.

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