Federal Register of Legislation - Australian Government

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Other as made
This instrument repeals and replaces Prescription —type ratings for CASR Part 142 flight training (Edition 3) to make changes to the prescribed type ratings.
Administered by: Infrastructure and Regional Development
Exempt from sunsetting by the Legislation (Exemptions and Other Matters) Regulation 2015 s12 item 15
Registered 28 Oct 2016
Tabling HistoryDate
Tabled HR07-Nov-2016
Tabled Senate07-Nov-2016
Date of repeal 10 Dec 2016
Repealed by Prescription — type ratings for CASR Part 142 flight training (Edition 5)

Explanatory Statement

Civil Aviation Safety Regulations 1998

Prescription — type ratings for CASR Part 142 flight training (Edition 4)

Purpose

Prescription — type ratings for CASR Part 142 flight training (Edition 4) (the instrument) prescribes type ratings for the purpose of relevant provisions in Part 142 of the Civil Aviation Safety Regulations 1998 (CASR 1998). The instrument repeals and replaces instrument Prescription — type ratings for CASR Part 142 flight training (Edition 3) (referred to in this explanatory statement as Edition 3).

 

Legislation

Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and the safety of air navigation.

 

Under paragraph 98 (5A) (a) of the Act, such regulations may empower CASA to issue instruments in relation to matters affecting the safe navigation and operation of aircraft.

 

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.

 

Part 141 of CASR 1998 contains regulations for recreational, private and commercial pilot flight training, other than certain integrated training courses. Such Part 141 flight training may be carried out by a Part 141 operator, that is, a person who holds a Part 141 certificate.

 

Part 142 of CASR 1998 contains regulations for integrated and multi-crew pilot flight training, training for the grant of a type rating, contracted recurrent training and contracted checking. Such training and checking may only be carried out by a Part 142 operator, that is, a person holding a Part 142 authorisation. For training and checking that is carried out in an aircraft, the form of the Part 142 authorisation is an air operator’s certificate (AOC).

 

The rationale behind Parts 141 and 142 of CASR 1998 is that flight training may be authorised to be conducted for a particular aircraft type rating only if the flight training operator has a course of training together with sufficient systems and personnel in place to safely and effectively manage flight training for the types of aircraft, including their variant models.

 

Within the range of available aircraft types, some can be grouped together and treated in a common way under Part 61 of CASR 1998. The groups of aircraft are known as class ratings. Thus, training to operate one type of aircraft may satisfy the training requirements for a number of other types of aircraft if they have similar characteristics and performance.

 

However, many types of aircraft are sufficiently complex or different from other types as to warrant type specific training to be required to fly these aircraft. These aircraft are identified as type-rated aircraft.

 

In some cases, aircraft types can have more than 1 model and the characteristics of the models can differ, for example, in such areas as operating systems, size, performance or handling. In some cases, the differences between the models are such that additional training (differences training) of the pilots is warranted to enable them to fly another variant of the aircraft type the pilot has been trained to operate.

 

The regulations ordinarily require flight training for the grant of a type rating, and type rating differences training, to be conducted by a CASR Part 142 operator. In some cases for the less complex type ratings, this training can be done adequately by the holder of a Part 141 certificate. In other words, the training would not require the additional organisational systems and processes that are required under Part 142. The regulations make provision for prescribing these aircraft in an instrument that can be made by CASA under regulation 142.045 of CASR 1998.

 

Regulation 142 of CASR 1998

Under paragraph 142.045 (a) of CASR 1998, for paragraph 98 (5A) (a) of the Act, CASA may issue a legislative instrument to prescribe type ratings for certain elements of the definition of Part 142 flight training.

 

Paragraph 142.015 (2) (d) of CASR 1998 provides that Part 142 flight training is defined as including training for the grant of a CASR Part 61 type rating that is not prescribed in a legislative instrument under regulation 142.045.

 

Under subparagraph 142.015 (g) (i) of CASR 1998, Part 142 flight training is also defined as differences training required under regulation 61.780, 61.835 or 61.1370 of CASR 1998 for a variant covered by a type rating that is not prescribed in a legislative instrument under regulation 142.045.

 

Under paragraph 141.015 (1) (d) of CASR 1998, Part 141 flight training is defined as including training for the grant of a Part 61 type rating that is prescribed in a legislative instrument under regulation 142.045.

 

Subparagraph 141.015 (g) (i) of CASR 1998 further provides that Part 141 flight training is defined as including differences training required under regulation 61.780 or 61.835 of CASR 1998 for a variant covered by a type rating that is prescribed in a legislative instrument under regulation 142.045.

 

Part 61 of CASR 1998

Regulation 61.780 of CASR 1998 requires the holder of a pilot type rating in an aircraft with variants to undertake differences training for other variants if the variants are prescribed, and differences training for them is required, under a legislative instrument made under regulation 61.055 or 61.060 of CASR 1998.

 

Regulation 61.835 of CASR 1998 authorises the holder of a cruise relief co-pilot type rating to act as co-pilot in an aircraft (in certain defined circumstances). Again, in particular defined circumstances, including passing a flight test in the aircraft model covered by the rating (the “first variant”), if differences training is required and completed for another aircraft model covered by the rating (the “second variant”), the holder may exercise the privileges in that second variant.

Under regulation 61.1370 of CASR 1998, the holder of a flight engineer type rating in an aircraft, who passed a flight test for the rating in an aircraft model (the “first variant”), may exercise the privileges of the rating in another aircraft model (the “second variant”) covered by the rating if all required differences training has been completed.

 

Instrument

The instrument prescribes type ratings for the purposes of Part 142 of CASR 1998. The effect of the instrument is that training in the relevant aircraft (and differences training for relevant aircraft) is defined as Part 141 flight training, instead of Part 142 flight training.

 

The instrument repeals and replaces Edition 3 in order to make updates to the prescribed type ratings for Part 142 of CASR 1998 as detailed below.

 

The Historical Aircraft Restoration Society (HARS)

HARS approached CASA for relief against the requirements of Part 142 of CASR 1998 in relation to conducting flight training for the following historical type‑rated aircraft:

·         Consolidated Vultee (Convair) CV440 model with the CV340/440 type rating

·         Douglas DC3 and C47 models with the DC3 type rating

·         De Havilland – Canada DH4 Caribou model with the DHC4 type rating

·         Lockheed SP2 model with the NEPTUNE type rating

·         Lockheed Super Constellation L-1049 model with the L1049 and L1049(FE) type ratings.

 

Before the introduction of Parts 141 and 142 of CASR 1998 via the Civil Aviation Legislation Amendment Regulation 2013 (No. 1), HARS conducted flight training for the Lockheed and Douglas aircraft mentioned above for more than a decade, and has conducted flight training for the DH4 Caribou for approximately 5 years. HARS is a Part 141 certificate holder, but does not have a Part 142 certificate.

 

Flight training for type-rated aircraft is designated as Part 142 training because of the relative complexity of operating such aircraft, especially multi-crew types, and the higher risks associated with failures arising from inadequate training. Unless the type rating for an aircraft is listed in an instrument made under regulation 142.045, the training for the type rating must be conducted by the holder of a Part 142 certificate.

 

CASA considered a number of matters in assessing HARS’ request for relief and the possibility of prescribing the type ratings for these aircraft as those for which type rating training may be conducted by a Part 141 operator. These matters included the relative complexity of each of the aircraft, the extent of the aeronautical knowledge required to operate the aircraft, the risks associated with failures arising from inadequate training, and the kind of operations the aircraft could be used for (in Australia, these aircraft are limited to operating for pleasure and air show flights, and are not used for commercial passenger‑carrying purposes).

 

In addition, CASA noted the limited number of the aircraft being proposed for the prescription under regulation 142.045 of CASR 1998 currently in Australia:

·         there is 1 Consolidated Vultee (Convair) CV440 model being prepared for ferry to Australia by HARS, and will be the only aircraft of its type

·         there are estimated to be less than 5 Douglas DC3 and C47 models within Australia that are airworthy, 2 of which are owned by HARS

·         there are only 2 De Havilland – Canada DH4 Caribou model aircraft, 2 Lockheed SP2 model aircraft and 1 Lockheed Super Constellation L‑1049 model aircraft registered on the Australian Civil Aircraft Register, all of which are owned or operated by HARS.

 

CASA considered that, in all the circumstances, it is appropriate to assign these aircraft on the list of type-rated aircraft for which type rating training may be conducted by Part 141 operators. This will be achieved by prescribing the relevant aircraft type ratings under this instrument.

 

The SA226/227 type rating

The instrument also updates the grouping of the various models of Metro and Merlin model aircraft covered by the SA226/227 type rating.

 

These changes have been made to more appropriately reflect the similarities between the variants covered by the type rating, without any significant impact on flight safety. These updates also reduce the number of variant groups specified for the SA226/227 type rating from 5 to 4, thereby reducing the complexity and costs associated with the differences training requirements for these aircraft.

 

CASA has identified that training for the aircraft types mentioned above is suitable to be conducted by the holder of a Part 141 certificate.

 

Miscellaneous amendments

The instrument makes a correction to the type rating for the Grumman G‑73 Mallard and G‑73T Turbo Mallard models previously prescribed as G73 in Edition 3. An applicant for the type rating for these aircraft must complete the flight test for the rating as a single pilot operation, and both these aircraft are certified for single pilot operations. Therefore, the reference to the type rating for the G‑73 Mallard and G-73T Turbo Mallard has been revised and prescribed as G73(SP). This G73(SP) type rating differentiates the Grumman G‑73 Mallard and G‑73T Turbo Mallard models from the Grumman G-73AT model aircraft, as the Grumman G-73AT is a multi-crew aircraft. The Grumman G-73AT has the G73 type rating prescribed under the instrument Prescription of aircraft and ratings — CASR Part 61 (Edition 2).  

 

The instrument also makes minor corrections to references to the type certificate holders and manufacturers prescribed in Part 1 of Schedule 1, confirming the name of RUAG as “RUAG Aerospace Services GmbH”, and adding reference to M7 Aerospace for the prescribed type ratings for the aeroplane models and variants for Swearingen and Fairchild.

 

Legislation Act 2003 (the LA)

Under paragraph 98 (5A) (a) of the Act, CASA may issue instruments in relation to matters affecting the safe navigation and operation of aircraft. Under subsection 98 (5AA) of the Act, an instrument issued under paragraph 98 (5A) (a) is a legislative instrument if expressed to apply in relation to a class of persons or aircraft.

 

In addition, subsection 8 (2) of the LA provides that if a primary law gives power to do something by legislative instrument, that thing must be done by instrument, and the instrument so made is a legislative instrument. Regulation 142.045 of CASR 1998 provides that CASA’s prescription of type ratings for paragraph (d) and subparagraph (g) (i) of the definition of Part 142 flight training in subregulation 142.015 (2) is made by legislative instrument.

The various prescriptions made by the instrument apply to classes of aircraft. The instrument also prescribes type ratings for paragraph (d) and subparagraph (g) (i) of the definition of Part 142 flight training in subregulation 142.015 (2) of CASR 1998. Therefore, the instrument is a legislative instrument, and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.

 

Consultation

The instrument has been made by CASA as a result of industry feedback. HARS approached CASA with a request to prescribe certain type ratings for the purposes of Part 142 of CASR 1998, to enable the type rating training for particular aircraft to be conducted by a Part 141 operator. HARS assisted CASA by providing information to assess the safety implications of these proposed prescriptions.

 

Changes to the grouping of the Metro and Merlin aircraft also followed feedback from the aviation industry requesting that the number of SA226/227 variants be simplified.

Consultation was undertaken with operators of Metro and Merlin aircraft in regards to these changes, with all parties supporting the proposed changes.

 

The remaining miscellaneous amendments make minor corrections and updates to the content previously prescribed under Edition 3. Having regard to these circumstances, it is CASA’s view that it is not reasonably practicable or appropriate to undertake any further consultation under section 17 of the LA.

 

Office of Best Practice Regulation (OBPR)

A Regulation Impact Statement (RIS) was prepared by CASA for the regulations which constitute the head of power for the legislative instrument. This RIS was assessed as adequate by OBPR (OBPR ID: 2777) and applies for the purpose of the legislative instrument. The legislative instrument has been assessed by CASA as generally benefitting the aviation industry because the reduced number of aircraft covered by type ratings for which training by a Part 142 operator is required has the effect of reducing compliance costs.

 

Statement of Compatibility with Human Rights

The legislative instrument does not directly engage any of the applicable rights and freedoms and is compatible with human rights. To the extent that it may indirectly limit certain human rights, those limitations are necessary and proportionate in the interests of aviation safety. A Statement of Compatibility with Human Rights is at Attachment 1.

 

Making and commencement

The instrument has been made by a delegate of CASA, relying on the power of delegation under subregulation 11.260 (1) of CASR 1998.

 

The instrument commences on the day after registration.

 

[Prescription — type ratings for CASR Part 142 flight training (Edition 4)]

Attachment 1

Statement of Compatibility with Human Rights

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

Prescription — type ratings for CASR Part 142 flight training (Edition 4)

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 Prescription — type ratings for CASR Part 142 flight training (Edition 4) (the instrument) is a legislative instrument prescribing type ratings for the purpose of relevant provisions in Part 142 of the Civil Aviation Safety Regulations 1998 (CASR 1998). The instrument thereby determines whether a Part 141 operator, rather than a Part 142 operator, may deliver flight training for the prescribed type ratings.

 

The instrument repeals and replaces Prescription —type ratings for CASR Part 142 flight training (Edition 3) to make changes to the prescribed type ratings. The instrument is, therefore, essentially a machinery instrument whose requirements are consistent with Australia’s obligations of conformity to the Chicago Convention on International Civil Aviation, its Protocols and Annexes.

 

Human rights implications

To the extent that certain aircraft are not prescribed, it might be said that the right to work, equality and non-discrimination under the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights are engaged for Part 141 flight training organisations, since they cannot provide relevant flight training for aircraft types that are not prescribed. However, such differential treatment arises from the requirements of aviation safety for the particular types of specialised aircraft involved.

 

Conclusion

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. To the extent that it may also limit human rights, those limitations are reasonable and proportionate in the interests of aviation safety.

 

Civil Aviation Safety Authority