Federal Register of Legislation - Australian Government

Primary content

CASA EX223/15 Exemptions as made
This instrument exempts Nauru Air Corporation, trading as Nauru Airlines (subject to conditions), from complying with the requirements of subsection 3BC of CAO 82.0 for regular public transport operations and charter operations in B737 aircraft.
Administered by: Infrastructure and Regional Development
Exempt from sunsetting by the Legislation (Exemptions and Other Matters) Regulation 2015 s12 item 15
Made 23 Dec 2015
Registered 24 Dec 2015
Tabled HR 02 Feb 2016
Tabled Senate 02 Feb 2016
Date of repeal 31 Dec 2016
Repealed by Self Repealing

Explanatory Statement

Civil Aviation Safety Regulations 1998

Exemption — extended diversion time operation requirements (Nauru Airlines B737)

 

Legislation

Subsection 98 (4A) of the Civil Aviation Act 1988 (the Act) empowers CASA to issue Civil Aviation Orders (the CAOs) not inconsistent with the Act or regulations made under the Act. Subsection 98 (5A) of the Act empowers CASA to issue instruments in relation to matters affecting the safe navigation and operation, or the maintenance, of aircraft.

 

Section 28BA of the Act deals with general conditions that apply to an Air Operator’s Certificate (AOC). One of these conditions, as specified in paragraph 28BA (1) (b), is that the AOC is subject to any conditions specified in the regulations or the CAOs.

 

Civil Aviation Order 82.0 Instrument 2014 (also referred to as CAO 82.0) is issued under subsection 98 (4A) and paragraph 28BA (1) (b) of the Act and sets out conditions applicable to AOCs authorising aerial work operations, charter operations and regular public transport operations. Under CAO 82.0, extended diversion time operation (EDTO) means any flight by a turbine‑engined aeroplane where the flight time at the 1 engine inoperative cruise speed (in ISA and still air conditions) from a point on the route to an adequate aerodrome is greater than the threshold time.

Under CAO 82.0, threshold time means:

(a)   for an aeroplane certified to carry more than 19 passengers or having a maximum payload capacity exceeding 3 410 kg:

             (i)  for a twin-engine aeroplane — 60 minutes; or

            (ii)  for an aeroplane with more than 2 turbine engines — 180 minutes; and

(b)   for an aeroplane with an MTOW in excess of 5 700 kg engaged in passenger‑carrying operations but not certified to carry more than 19 passengers — 180 minutes.

Under CAO 82.0, adequate aerodrome, for an aeroplane, means an aerodrome which:

(a)   meets the physical requirements set out in Appendix 2; and

(b)   provides facilities and services for the aeroplane type, including:

             (i)  meteorological forecasts; and

            (ii)  at least 1 suitable authorised instrument approach procedure.

Among other things, subsection 3BC of CAO 82.0 sets out distance limitations for turbine‑engined aeroplanes certified to carry more than 19 passengers or having a payload capacity exceeding 3 410 kg. Under paragraph 3BC.3 of CAO 82.0, the holder of an AOC may only conduct an EDTO if the operation has been approved in writing by CASA in accordance with Appendix 4, and the AOC holder complies with the requirements of Appendix 5.

 

Appendix 4 of CAO 82.0 requires an AOC holder to apply to CASA for EDTO approval and sets out the application requirements such as details of the area of operations, a list of EDTO alternate aerodromes en route and the AOC holder’s fuel and oil policy. In addition to any other requirements imposed by Appendix 4 of CAO 82.0, in considering whether to give EDTO approval, CASA must take into account safety compensating factors, including the number of airports in the region, the weather conditions normally prevailing in the area, the availability of communications, the safety and reliability of operations with the particular airframe/engine combination and any additional minimum equipment list restrictions. Appendix 5 of CAO 82.0 sets out the general conditions for EDTO, including the carriage of minimum fuel, flight crew training and evaluation, and EDTO alternate aerodrome planning minima.

 

Under paragraph 3BC.5 of CAO 82.0, an AOC holder may operate a twin turbine-engined aeroplane on a route containing a point more than 60 minutes at the 1 engine inoperative cruise speed (in ISA and still air conditions) from an adequate aerodrome only if the operation complies with paragraph 3BC.6, 3BC.7 or 3BC.8.

 

Subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998) provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the CAOs. Under subregulation 11.160 (2), an exemption may be granted to a person, or to a class of persons, and may specify the class by reference to membership of a specified body or any other characteristic.

 

Under subregulation 11.205 (1) of CASR 1998, CASA may impose conditions on an exemption if this is necessary in the interests of the safety of air navigation. Under regulation 11.225 of CASR 1998, an exemption must be published on the Internet. Under subregulation 11.230 (1), the maximum duration of an exemption is 3 years.

 

Instrument

Nauru Air Corporation, trading as Nauru Airlines (the operator), has sought relief from EDTO requirements for its B737 aircraft to permit them to continue their flying operations while working towards obtaining EDTO approval.

 

CASA EX223/15 is an instrument that exempts the operator from complying with the requirements of subsection 3BC of CAO 82.0 for the operator’s regular public transport operations and charter operations in B737 aircraft. The exemption is subject to the condition that the operator must ensure that the aircraft does not operate at any point along a route which is greater than 75 minutes of flight time at the 1 engine inoperative cruise speed (in ISA and still air conditions) from an adequate aerodrome. The operator must include a copy of the instrument in the operator’s operations manual. The exemption is also conditional upon the operator providing to CASA’s satisfaction by 29 January 2016 an action plan with milestones and timelines in relation to the operator’s proposed EDTO compliance by December 2016.

 

Legislative Instruments Act 2003 (the LIA)

Under regulation 5A of the Civil Aviation Regulations 1988 (CAR 1988), if CASA has issued a Civil Aviation Order (CAO), and CASA later issues an exemption that affects the operation of the CAO, the later document is declared to be a disallowable instrument. Under subparagraph 6 (d) (i) of the LIA, an instrument is a legislative instrument for section 5 of the LIA if it is declared to be a disallowable instrument under legislation in force before the commencement of the LIA. CAR 1988 was in force before the commencement of the LIA.

 

This instrument affects the operation of subsection 3BC of CAO 82.0 and is, therefore, a legislative instrument, subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.

 

Consultation

The exemption has been issued at the request of the operator. It is of beneficial effect to the operator’s business. The short-term exemption will allow CASA to conduct a full assessment of the operator’s safety case for a longer term arrangement regarding the operator’s EDTO compliance. In these circumstances, it is CASA’s view that it is not necessary or appropriate to undertake any further consultation under section 17 of the LIA.

 

Statement of Compatibility with Human Rights

A Statement of Compatibility with Human Rights is at Attachment 1.

 

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).

 

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 the day of registration and expires at the end of December 2016, as if it had been repealed by another instrument.

 

[Instrument number CASA EX223/15]

Attachment 1

Statement of Compatibility with Human Rights

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

 

Exemption — extended diversion time operation requirements (Nauru Airlines B737)

 

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 legislative instrument exempts Nauru Air Corporation, trading as Nauru Airlines (the operator), from complying with the requirements of subsection 3BC of CAO 82.0 for the operator’s regular public transport operations and charter operations in B737 aircraft. The exemption is subject to the condition that the operator must ensure that the aircraft does not operate at any point along a route which is greater than 75 minutes of flight time at the 1 engine inoperative cruise speed (in ISA and still air conditions) from an adequate aerodrome. The operator must include a copy of the instrument in the operator’s operations manual. The exemption is also conditional upon the operator providing to CASA’s satisfaction by 29 January 2016 an action plan with milestones and timelines in relation to the operator’s proposed extended diversion time operation (EDTO) compliance by December 2016.

 

The short-term exemption will allow CASA to conduct a full assessment of the operator’s safety case for a longer term arrangement regarding the operator’s EDTO compliance.

 

Human rights implications

This legislative instrument 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