Explanatory Statement
Civil Aviation Safety Regulations 1998
Part 66 Manual of Standards Amendment Instrument 2017 (No. 1)
Purpose
The purpose of the Part 66 Manual of Standards Amendment Instrument 2017 (No. 1) (the No. 1 Amendment) is to amend the Part 66 Manual of Standards (Part 66 MOS) to extend, for a further 3 years, an exemption for individuals who may choose to continue using a qualification scheme available under repealed regulation 31 of the Civil Aviation Regulations 1988 (CAR) for an aircraft engineer licence (AEL). The No. 1 Amendment also inserts a new B737-7/8/9 aircraft type rating in recognition of the pending inclusion of new B737 Max aircraft in an Australian operator’s fleet. This rating is required for AELs before aircraft engineers can perform maintenance on that type of aircraft. The No. 1 Amendment also makes a minor editorial change to remove reference to a previously repealed definition.
Legislation
Under section 9 of the Civil Aviation Act 1988 (the Act), CASA has the function of conducting the safety regulation of a range of matters including, under paragraph 9 (1) (c), developing and promulgating appropriate, clear and concise aviation safety standards.
Subsection 98 (1) of the Act empowers the Governor-General to make regulations for the Act and in the interests of the safety of air navigation. The relevant regulations are the Civil Aviation Safety Regulations 1998 (CASR). Part 66 of CASR, Continuing airworthiness — aircraft engineer licences and ratings, deals with licences and ratings for the performance of maintenance certifications and issuing certificates of release to service for aircraft.
Under subsection 98 (5A) of the Act, the regulations may empower CASA to issue instruments in relation to the maintenance or airworthiness of aircraft. For subsection 98 (5A) of the Act, regulation 66.015 of CASR empowers CASA to issue a Manual of Standards that specifies matters affecting the maintenance or airworthiness of aircraft.
Subpart 11.F of CASR provides for the granting of exemptions from particular provisions of the regulations. Subregulation 11.160 (1) of CASR provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the regulations.
Under subregulation 11.160 (2) of CASR, an exemption may be granted to a person or a class of persons. Regulation 11.225 of CASR requires an exemption to be published on the Internet. Under subregulation 11.230 (1), the maximum duration of an exemption is 3 years.
Under subsection 33 (3) of the Acts Interpretation Act 1901, where an Act 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
Before 27 June 2011, applications for aircraft maintenance engineer licences and ratings (the predecessor of AELs) were made under regulation 31 of CAR (the CAR 31 framework). On 27 June 2011, CASA introduced Parts 42, 66, 145 and 147 of CASR dealing with continuing airworthiness requirements for aircraft and aeronautical products, aircraft engineer licences and ratings, approval of maintenance organisations, and maintenance training organisations. The introduction of these Parts harmonised Australia’s aircraft maintenance regulatory framework with European regulations. In the current Part 66 regulatory framework, CASA grants AELs under regulation 66.025 and AELs with exclusions under regulation 66.026 of CASR. Recognising that some individuals may not meet qualification requirements, or may otherwise opt to continue qualifying for AELs under criteria in the CAR 31 framework, regulation 202.345 of CASR provides for a transitional period to 3 July 2020 during which AEL applicants may be granted AELs under Part 66 of CASR if they qualify under the CAR 31 framework.
Due to the differences between the current Part 66 framework and the former CAR 31 framework for training and practical experience requirements for AELs and the granting of ratings on AELs, exemptions were included in section 66.A.58 of the Part 66 MOS that allowed CAR 31 framework applicants to apply for AELs notwithstanding the differences. Paragraph 66.A.58 (c) provides that these exemptions expire at the end of 26 June 2017.
In addition, with the pending inclusion of the Boeing B737-7/8/9 aircraft type (B737 Max) in an Australian operator’s fleet, it is necessary to include the relevant type rating in the Part 66 MOS.
Instrument
The No. 1 Amendment amends the date in paragraph 66.A.58 (c) of the Part 66 MOS to extend the exemptions that benefit CAR 31 framework applicants for a further 3 years which brings the expiry date of the exemptions closer to the end of the regulation 202.345 transitional period. While CASA considers that it would be optimal to align the exemption expiry date to the end of the transitional period (3 July 2020), subregulation 11.230 (1) of CASR limits CASA exemptions issued under regulation 11.160 to a maximum duration of 3 years. Accordingly, the period for exemptions contained in section 66.A.58 of the Part 66 MOS will only persist to the end of 25 June 2020 (8 days short of 3 July 2020). By that time, it is anticipated that other amendments to the regulations or the Part 66 MOS will resolve this date misalignment. CASA’s policy has not changed and 3 July 2020 remains the end date for full transition from the CAR 31 framework.
Separately, the No. 1 Amendment inserts a new aircraft type rating for Boeing 737-7/8/9 aircraft which was specifically requested by an Australian operator to allow aircraft engineers to be recognised with this type rating in order to conduct maintenance on B737 Max aircraft that will be delivered in coming weeks.
In addition, CASA has identified text in Table 1 to Appendix IX to the Part 66 MOS that refers to a previously repealed definition and is deleting the text.
Legislation Act 2003 (the LA)
Under paragraph 98 (5A) (a) of the Act, the regulations may empower CASA to issue instruments in relation to the maintenance of aircraft. The Part 66 MOS is issued under regulation 66.015 of CASR that empowers CASA to issue the Part 66 MOS. Under subsection 98 (5AA) of the Act, such an instrument is a legislative instrument for the LA if it is expressed to apply to classes of persons, aircraft or aeronautical products rather than to individual persons, or individual aircraft or products. The Part 66 MOS is a legislative instrument since it applies to a class of persons, being aircraft engineers.
Paragraph 10 (1) (d) of the LA provides that an instrument will be a legislative instrument if it includes a provision that amends another legislative instrument. Therefore, the No. 1 Amendment is a legislative instrument subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
The No. 1 Amendment is minor or machinery in nature. It makes 3 changes in order to extend current exemptions offered to CAR 31 framework applicants, to recognise a new B737-7/8/9 aircraft type rating and to omit obsolete text. The extension of the exemption, for 3 years, is consistent with CASA policy for recognition of individuals transitioning from the CAR 31 framework to Part 66 of CASR by 3 July 2020. Recognition of the new B737-7/8/9 aircraft type rating is in response to new aircraft being introduced into an Australian operator’s fleet and is required to enable the operator’s aircraft maintenance engineers to meet the qualification requirements for endorsement of that rating on an individual’s AEL. The former 2 amendments are beneficial to, and are expected by, industry.
The Director of Aviation Safety has issued an instrument of determination under paragraph 11.275 (1) (d) of CASR that determined that the No. 1 Amendment, and each of the amendments contained within it, did not substantially alter existing arrangements and did not require consultation. CASA is satisfied that no consultation is appropriate or reasonably practicable for this instrument for section 17 of the LA.
Office of Best Practice Regulation (OBPR)
A Regulation 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 (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. The instrument is compatible with human rights, as it engages in a positive way with the right to work.
Making and commencement
The No. 1 Amendment has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
The No. 1 Amendment commences on 26 June 2017 and will be repealed in accordance with section 48A of the LA.
[Part 66 Manual of Standards Amendment Instrument 2017 (No. 1)]
Appendix 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Part 66 Manual of Standards Amendment Instrument 2017 (No. 1)
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
The purpose of the Part 66 Manual of Standards Amendment Instrument 2017 (No. 1) (the No. 1 Amendment) is to amend the Part 66 Manual of Standards (Part 66 MOS) to extend, for 3 years, exemptions offered to aircraft engineer licence applicants who may be transitioning from the previous regulatory framework under regulation 31 of the Civil Aviation Regulations 1988 (CAR). The No. 1 Amendment also inserts a new B737-7/8/9 aircraft type rating which is required by aircraft engineers before they are able to conduct maintenance on that type of aircraft. These 2 amendments are minor in nature, consistent with existing CASA policy and are beneficial to industry. A minor editorial amendment is also made to remove reference to a previously repealed definition.
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. The instrument engages in a positive way with the right to work by facilitating the performance of professional maintenance activities on the B737-7/8/9 aircraft type and continuing the flexible arrangement whereby engineers have the choice to obtain an aircraft engineer licence based on the framework under regulation 31 of CAR.
Conclusion
This legislative instrument is compatible with human rights.
Civil Aviation Safety Authority