Federal Register of Legislation - Australian Government

Primary content

CASA EX41/19 Exemptions as made
This instrument provides a method by which applicants for pilot type ratings for the Swearingen SA226/227 and Embraer EMB120 types of aircraft can complete part of the flight training and take a flight test in an aircraft, rather than a flight simulator. It addresses the lack of fidelity of the relevant Australian flight simulators to satisfy all of the training and testing requirements for the issue of the ratings.
Administered by: Infrastructure, Transport, Regional Development and Communications
Exempt from sunsetting by the Legislation (Exemptions and Other Matters) Regulation 2015 s12 item 15
Registered 21 May 2019
Tabling HistoryDate
Tabled HR02-Jul-2019
Tabled Senate02-Jul-2019
To be repealed 30 Apr 2022
Repealed by Self Repealing

Explanatory Statement

Civil Aviation Safety Regulations 1998

CASA EX41/19 — Flight Training and Test (Low-Fidelity Simulators) Exemption 2019

Purpose

The purpose of this legislative instrument is to provide a method by which applicants for pilot type ratings for certain types of aircraft can complete part of the flight training and take a flight test in an aircraft, rather than a flight simulator. It addresses the lack of fidelity of the relevant Australian flight simulators to satisfy all of the training and testing requirements for the issue of the ratings. It provides exemptions from provisions of the Civil Aviation Safety Regulations 1998 (CASR) that would prevent the training and testing being conducted in an aircraft.

 

Legislation

Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and in the interests of the safety of air navigation. Relevantly, the Governor-General has made CASR.

 

Subsection 98 (5D) of the Act provides that 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 from time to time, even if the other instrument or writing does not yet exist when the legislative instrument is made.

 

Under regulation 11.015 of CASR, a relevant approval under regulation 61.040 of CASR is an “authorisation” for Part 11 of CASR, with Subpart 11.BA of CASR applying to the authorisation. Regulation 11.055 of CASR sets out criteria that the Civil Aviation Safety Authority (CASA) considers when granting an authorisation. Paragraph 11.056 (1) (a) of CASR provides that an authorisation may be granted subject to any condition that CASA is satisfied is necessary in the interests of the safety of air navigation. Under regulation 11.077 of CASR, a person commits an offence of strict liability if the person breaches a condition of an authorisation.

 

Exemptions

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, and may specify the class by reference to membership of a specified body or any other characteristic.

 

Under subregulation 11.160 (3) of CASR, an exemption may be granted on application by a person or on CASA’s own initiative.

 

Under subregulation 11.170 (3) of CASR, in deciding whether to grant an exemption on application, CASA must regard as paramount the preservation of at least an acceptable level of aviation safety. CASA has regard to the same test when deciding whether to grant an exemption on its own initiative.

Regulation 11.205 of CASR provides that CASA may impose conditions on an exemption if necessary in the interests of the safety of air navigation. Under regulation 11.210, it is a strict liability offence not to comply with the obligations imposed by a condition.

 

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.

 

Flight simulators

Part 60 of CASR applies to synthetic training devices that may be used by a person to gain aeronautical experience, and provides a system of evaluation and qualification for such devices. The term flight simulator qualification certificate is defined in regulation 60.015 of CASR to mean a certificate issued under regulation 60.035 of CASR for a qualified flight simulator. Regulation 60.035 of CASR provides for the issue by CASA of flight simulator qualification certificates to the operator of a flight simulator, and the details to be included in the certificate.

 

Flight crew licensing

Part 61 of CASR sets out the licensing scheme for pilots and flight engineers of registered aircraft. Regulation 61.010 contains definitions of terms used in Part 61.

 

Several provisions in Part 61 of CASR refer to a person or organisation holding an approval under regulation 61.040 of CASR. Regulation 61.040 provides for approvals to be issued by CASA where a provision of Part 61 refers to a person or organisation holding an approval under regulation 61.040, and contains requirements for the grant of the approval.

 

Division 61.B.2 of CASR relates to flight, and other, training. Subregulation 61.195 (2) of CASR applies to flight training for, amongst other things, flight crew ratings. Relevantly, it provides that a requirement in Part 61 for an applicant for a flight crew rating to have completed flight training for the rating is met only if the requirements in paragraphs 61.195 (2) (a) to (e) are met. Under paragraph 61.195 (2) (c), the applicant must have been assessed as competent, in each unit of competency mentioned in the Part 61 Manual of Standards (the Part 61 MOS) for the rating, by an instructor for a Part 141 or 142 operator that is authorised to conduct the training, or the holder of an approval under regulation 141.035 or 142.040 to conduct the training.

 

Under paragraph 61.195 (2) (d) of CASR, the flight training for the grant of an aircraft type rating must have been conducted in accordance with regulation 61.205. Regulation 61.205 prohibits training being conducted in an aircraft in certain circumstances. If the aircraft has a maximum certificated passenger seating capacity of more than 9, and there is an approved flight simulator for the training available in Australia, the training must not be conducted in an aircraft. Also, if the aircraft has a maximum certificated passenger seating capacity of more than 19 or a maximum certificated take-off weight of more than 8 618 kg, and there is an approved flight simulator for the training available outside Australia, the training must not be conducted in an aircraft. In these circumstances, the training may only be conducted in a flight simulator.

 

Division 61.B.4 of CASR relates to flight tests. Subregulation 61.235 (4) of CASR applies to applicants for a flight crew rating. Subparagraph 61.235 (4) (a) (ii) provides that an applicant is eligible to take a flight test for the rating only if a person mentioned in subregulation (5), (6) or (7) has certified in writing that the applicant has met the flight training requirements for the grant of the rating. The persons mentioned in subregulation (5), (6) or (7) are certain personnel of the applicant’s training provider.

 

Under regulation 61.240 of CASR, an applicant for a flight crew rating is taken not to have passed a flight test if, when the applicant took the test, the applicant was not eligible under regulation 61.235 to take the test.

 

Subregulation 61.245 (1) of CASR requires the flight test for a flight crew rating to be conducted in an appropriate aircraft or approved flight simulator. However, subregulation 61.245 (2), like regulation 61.205, prohibits the flight test being conducted in an aircraft in certain circumstances.

 

Under regulation 61.250 of CASR, an applicant for a flight crew rating passes the flight test for the rating if the examiner assesses the applicant’s performance in the flight test as meeting the competency standards mentioned in the Part 61 MOS for the flight test.

 

Division 61.L.5 of CASR relates to pilot type ratings. Regulation 61.810 of CASR applies to certain applicants for a pilot type rating. Subregulation 61.810 (3) requires the applicant, amongst other things, to have completed an approved course of training for the rating that includes flight training, and to have passed a flight test mentioned in the Part 61 MOS for the rating.

 

Division 61.T.3 of CASR relates to obligations of pilot instructors. Under regulation 61.1215 of CASR, it is an offence for a pilot instructor to conduct flight training for a pilot type rating in an aircraft if regulation 61.205 prohibits the conduct of the training in the aircraft.

 

Division 61.U.2 of CASR relates to obligations of flight examiners. There are 3 relevant offence provisions that apply to a flight examiner who conducts a flight test for a rating. Under paragraph 61.1295 (1) (b) of CASR, the flight examiner must have been nominated by the applicant’s training provider or CASA to conduct the flight test. Under paragraph 61.1295 (3) (b), the flight examiner must conduct the flight test in accordance with the standards, and assess the applicant against the competency standards, mentioned in the Part 61 MOS. Under subparagraph 61.1300 (4) (b) (ii) of CASR, the flight examiner must, when the flight test begins, be satisfied that the applicant has met the flight training requirements for the grant of the rating.

 

Parts 141 and 142 of CASR deal with the conduct of pilot flight training and the approval by CASA of Part 141 operators and Part 142 operators to conduct the training.

 

Background

Requirements for the mandatory use of flight simulators were introduced into training and checking systems many years ago in response to several accidents and incidents. Flight simulators can enhance the quality and effectiveness of training while mitigating the safety risks associated with conducting activities in simulated engine out flight and other non‑normal manoeuvres. Flight simulators used by Australian operators are approved by CASA for specified purposes, which relate to the fidelity, functionality and features they have. Part 61 of CASR introduced the flight simulator requirement for flight training and flight tests that are for the grant of aircraft type and class ratings (see regulations 61.205 and 61.747 of CASR).

 

There are 2 Australian flight simulators, for aircraft included in the Swearingen SA226/227 (Merlin/Metroliner) and Embraer EMB120 (Brasilia) aircraft type ratings, which are currently used for pilot licensing and operator training and checking. These simulators are not approved for certain flight training because they are deficient in various areas of fidelity. To complete that training for the pilot type ratings for the aircraft, it is necessary to allow a pilot to complete further training in the aircraft. The aircraft training would cover the aspects of training and testing that cannot be conducted in the simulators. For these aircraft type ratings, the other alternatives would be to remove the mandatory requirement for training in simulators (which is undesirable as that would move safety sensitive training back into aircraft when it could be done in a flight simulator), or to require the training to be conducted in flight simulators overseas (which would incur significant costs).

 

Overview of instrument

The instrument provides a method by which applicants for the Swearingen SA226/227 and Embraer EMB120 pilot type ratings can complete part of the flight training and flight test in an aircraft, rather than a flight simulator. Part of the flight training and competency assessment for the rating must be conducted in a flight simulator, to the extent that the capability of the simulator allows, by an approved training provider, which issues a certificate in relation to that training and assessment. Relying on that certificate, the balance of the training and the associated flight test for the rating can then be conducted in an aircraft, either by the same or another approved training provider.

 

The instrument applies to applicants for those ratings, pilot instructors who train those applicants and approved flight testers who conduct flight tests of those applicants. It provides exemptions from provisions of CASR that would prevent the training and test in an aircraft. It also includes conditions on those exemptions imposed by CASA in the interests of the safety of air navigation.

 

Documents incorporated by reference

The instrument incorporates by reference matters contained in the following documents:

·         the Part 61 MOS;

·         an approved training provider’s syllabus of training;

·         the flight simulator qualification certificate, for the simulator, issued to the simulator’s operator.

 

Part 61 MOS

The Part 61 MOS is a legislative instrument, made under regulation 61.035 of CASR, that supports Part 61 of CASR by setting out matters relating to flight crew licences, such as standards for flight training and general operating competencies for aircraft of a particular class or type. In accordance with subsection 98 (5D) of the Act, it is incorporated in this instrument as in force from time to time. It can be found on the Federal Register of Legislation at: https://www.legislation.gov.au/Series/F2014L01102.

 

Syllabus of training of an approved training provider

In accordance with subsection 98 (5D) of the Act, the syllabus of training of an approved training provider is incorporated as it exists from time to time.

 

A Part 141 operator is required to have an operations manual that has a description of the flight training conducted by the operator, including the training plans and syllabuses for the training. Similarly, a Part 142 operator is required to have an exposition that has a description of the activities conducted by the operator, including the training plans and syllabuses for the flight training conducted by the operator. When considering an application from a proposed Part 141 or 142 operator, CASA compares the operator’s proposed training plans and syllabuses with the relevant description, elements, performance criteria and knowledge requirements in Schedule 2 of the Part 61 MOS.

 

Expositions and operations manuals are not publicly or freely available. They are proprietary to the operator and will generally include commercial in confidence information about the operator’s business. The incorporated requirements of an exposition or operations manual are at the operator-specific level and apply only to the operator and its personnel. Further, the operator is under obligations to make the exposition or operations manual available to its personnel who have obligations under the document. Therefore, the syllabus of training is freely available to all persons who are affected by the requirements of the syllabus imposed by this instrument.

 

Flight simulator qualification certificate

A flight simulator qualification certificate is a certificate issued by CASA to the operator of a flight simulator under regulation 60.035 of CASR. The certificate includes: the name of the operator; information identifying the simulator; the aircraft that is simulated by the simulator; and the qualification level of the simulator.

 

In accordance with subsection 98 (5D) of the Act, the flight simulator qualification certificate for a low-fidelity simulator is incorporated as it exists from time to time.

 

The flight simulator qualification certificate for each low-fidelity simulator can be found on the CASA website at: https://www.casa.gov.au/licences-and-certification/standard-page/flight-simulators-and-training-devices.

 

Content of instrument

Section 1

This section provides the citation of the instrument as CASA EX41/19 — Flight Training and Test (Low-Fidelity Simulators) Exemption 2019.

 

Section 2

The section provides that the instrument commences on the day after it is registered and is repealed at the end of 30 April 2022.

 

Section 3

This section contains definitions for the following terms used in the instrument: affected type rating; approved flight tester; approved training provider; low-fidelity simulator and MOS.

 

The note mentions relevant definitions in the Act and in CASR that apply to the instrument.

 

Section 4

Section 4 provides that the instrument applies in relation to the flight training and flight test of an applicant for an affected type rating. An affected type rating is the pilot type rating for each of the Swearingen SA226/227 and Embraer EMB120 types of aircraft.

 

Section 5

Section 5 provides for exemptions that apply to an applicant for an affected type rating.

Under subsection 5 (1), in relation to flight training for the rating, the applicant is exempted from compliance with paragraph 61.195 (2) (d) and regulation 61.205 of CASR, which require the training to be conducted in an approved flight simulator, rather than an aircraft.

 

Subsection 5 (2) deals with the applicant’s eligibility for, and conduct of, the flight test for the rating. The applicant is exempt from paragraph 61.195 (2) (d), regulation 61.205 and subregulation 61.245 (2) of CASR. The subsection also exempts the applicant from compliance with subparagraph 61.235 (4) (a) (ii) of CASR, to the extent that it would require compliance with paragraph 61.195 (2) (d) and regulation 61.205 of CASR.

 

Subsection 5 (3) deals with requirements associated with passing the flight test for an affected type rating. An applicant is exempted from compliance with regulation 61.240 to the extent that it requires the person to receive training in a flight simulator in order to be eligible, under subparagraph 61.235 (4) (a) (ii), to take the flight test for the rating. This exemption is a result of the low-fidelity simulator lacking the fidelity to meet the requirements of subparagraph 61.235 (4) (a) (ii) for some of the training required for the rating. The balance of the flight training is instead completed in an aircraft.

 

The applicant is also exempted, under subsection 5 (3), from compliance with regulation 61.250 to the extent that it requires the approved flight tester conducting the flight test for the rating to assess the applicant’s performance against the competency standards mentioned in the Part 61 MOS and covered by the certification mentioned in subsection 7 (1). This certification evidences the training and assessment for the type rating that the applicant has received in a low-fidelity simulator. The exemption from regulation 61.250 reflects the split of the assessment of competencies between the simulator and the aircraft.

 

Section 6

This section grants exemptions to pilot instructors of approved training providers that are approved to conduct flight training, for an affected type rating, in an aircraft.

 

Under subsection 6 (1), a pilot instructor is exempt from compliance with regulation 61.1215 of CASR in relation to the flight training. Therefore, it allows the pilot instructor to conduct flight training, for an affected type rating, in an aircraft.

 

Subsection 6 (2) provides that the exemption granted to the pilot instructor is subject to the conditions set out in section 7.

 

Section 7

This section sets out conditions that apply to a pilot instructor exempted from compliance with regulation 61.1215 under section 6.

 

Under subsection 7 (1), a pilot instructor of an approved training provider must not conduct flight training, for an affected type rating, in an aircraft unless the provider has conducted training for the applicant for the rating in a low-fidelity simulator and issued a certificate that complies with the requirements in subsection 7 (2), or has been given such a certificate by another approved training provider. It allows for the flight training in the aircraft to be conducted by either the approved training provider that conducted training for the applicant in the simulator or by a different approved training provider.

 

Subsection 7 (2) sets out the requirements for the certificate mentioned in subsection 7 (1).

The certificate must state that flight training in the simulator:

·         was conducted in accordance with the syllabus of training of the approved training provider that conducted the training in the simulator; and

·         included all the training required by the Part 61 MOS for piloting the aircraft to the extent that the training is permitted by the flight simulator qualification certificate for the simulator.

 

The certificate must state that an approved flight tester, for the rating, nominated by the approved training provider has conducted an assessment of the applicant for the rating in the simulator; that the assessment was conducted against the units of competency that were covered by the flight training conducted in the simulator; and that the assessment was in accordance with the standards in the Part 61 MOS for the flight test for the rating.

 

The certificate must state that the applicant has been assessed by the approved flight tester as competent in each unit of competency covered by the assessment conducted in the simulator.

 

The certificate must be signed by the head of operations of the approved training provider that conducted the training in the simulator.

 

Subsection 7 (3) makes it a condition that the pilot instructor must ensure that the flight training in the aircraft only includes the conduct of activities in normal flight and, within those confines, covers all units of competency for the rating that are not covered by the certificate provided for in subsections 7 (1) and (2).

 

The note explains further that activities such as the simulated failure of an engine or other aircraft system are not conducted in normal flight. Such activities must have been conducted in the low-fidelity simulator. This ensures that flight training and assessment of competence in higher risk activities are not performed in an aircraft.

 

Section 8

This section provides for exemptions that apply to an approved flight tester conducting a flight test for an applicant for an affected type rating.

 

Subsection 8 (1) applies to an approved flight tester who is a flight examiner. Under subsection 8 (1), the approved flight tester is exempt from compliance with the following provisions of CASR:

·         subregulation 61.245 (2);

·         subparagraph 61.1295 (1) (b) (i), to the extent that it requires the flight tester to have been nominated by an approved training provider that provided the applicant with flight training in a low-fidelity simulator;

·         paragraph 61.1295 (3) (b), to the extent that:

o   the flight test is not conducted in accordance with the standards mentioned in the Part 61 MOS for the competency standards that are covered by the certification relating to training and assessment in the simulator; and

o   the approved flight tester does not assess the applicant against those competency standards;

·         subparagraph 61.1300 (4) (b) (ii), to the extent that the applicant does not, in relation to the rating, comply with paragraph 61.195 (2) (d) and regulation 61.205 of CASR.

 

Subsections 8 (2) and (3) apply to an approved flight tester who is approved under regulation 61.040 and authorised to conduct the flight test for the rating. Under subsection 8 (2), the approved flight tester is exempt from compliance with subregulation 61.245 (2) of CASR. Under subsection 8 (3), the approved flight tester is also exempt from compliance with regulation 11.077 of CASR, to the extent that CASA has imposed conditions on the approval, under regulation 61.040, which require the flight tester to comply with the same provisions from which a flight examiner is exempt under subsection 8 (1).

 

While different exemptions apply to flight examiners and holders of approvals under regulation 61.040, the exemptions have the same effect.

 

Subregulation 61.245 (2) applies to both classes of approved flight testers. However, regulations 61.1295 and 61.1300 only apply to flight examiners. Therefore, approved flight testers who are not flight examiners do not require an exemption directly from the requirements in regulations 61.1295 and 61.1300.

 

As the note under subsection 8 (3) explains, CASA may impose conditions on an approval, under regulation 61.040, of a person to conduct a flight test. Those conditions may include requirements for the approval holder to comply with the provisions of CASR mentioned in paragraphs 8 (3) (a) to (d). Regulation 11.077 makes it an offence for a person to breach a condition on an authorisation, such as an approval under regulation 61.040. Consequently, subsection 8 (3) grants an exemption to a relevant approval holder from compliance with regulation 11.077 to the extent that conditions on the approval require the approval holder to comply with the provisions of CASR mentioned in paragraphs 8 (3) (a) to (d).

 

Subsection 8 (4) provides that the exemptions in this section are subject to the conditions in section 9.

 

Section 9

This section sets out the conditions that apply to an approved flight tester exempted from compliance with certain provisions of CASR under section 8.

 

The approved flight tester must not conduct the flight test for the applicant unless the flight tester:

·         has been given a certificate mentioned in subsection 7 (1) (about flight training and assessment in a low-fidelity simulator); and

·         is satisfied the applicant meets the requirement mentioned in paragraph 61.195 (2) (c) of CASR for the rating (assessed as competent in each unit of competency mentioned in the Part 61 MOS for the rating); and

·         has been nominated to conduct the flight test by the approved training provider that conducted the flight training, of the applicant for the rating, in an aircraft.

 

The note under section 9 explains the purpose of this last requirement. Under paragraph 61.1295 (1) (b) of CASR, the approved flight tester must have been nominated to conduct the flight test by CASA or the applicant’s training provider. Where the approved flight tester is not nominated by CASA, the requirement takes into account that, under this instrument, different training providers may provide flight training in a low-fidelity simulator and an aircraft. In those circumstances, the requirement in paragraph 9 (c) ensures that the approved flight tester is nominated by the training provider that conducted the flight training in an aircraft, rather than the training provider that conducted the flight training in a low-fidelity simulator.

 

Legislation Act 2003 (the LA)

Paragraph 98 (5A) (a) of the Act provides that CASA may issue instruments in relation to matters affecting the safe navigation and operation, or the maintenance, of aircraft. Additionally, paragraph 98 (5AA) (a) of the Act provides that an instrument issued under paragraph 98 (5A) (a) is a legislative instrument if the instrument is expressed to apply in relation to a class of persons. The instrument exempts classes of persons, being applicants, pilot instructors and approved flight testers for affected type ratings, from complying with various provisions of CASR. The instrument is, therefore, a legislative instrument, and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.

 

Consultation

CASA has undertaken consultation with flight examiners, flight simulator operators and aircraft operators of the types of aircraft affected by this instrument.

 

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 instrument provides a cost-benefit to industry by streamlining the method of completing the required flight training and flight test. It allows part of the training and assessment to be completed in a flight simulator and then the remainder of the training and assessment to be completed in an aircraft. It removes the need for the applicant to complete relatively simple training in an aircraft before returning to the simulator to commence the flight assessment and then returning to the aircraft to complete the flight test.

 

A Regulation Impact Statement (RIS) is not required in this case, as the exemption is covered by a standing agreement between CASA and OBPR under which a RIS is not required for exemptions (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 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.

 

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 after it is registered and is repealed at the end of 30 April 2022.

Attachment 1

Statement of Compatibility with Human Rights

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

 

CASA EX41/19 — Flight Training and Test (Low-Fidelity Simulators) Exemption 2019

 

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 provides a method by which applicants for certain pilot type ratings can complete part of the flight training and take a flight test in an aircraft, rather than a flight simulator. It addresses the lack of fidelity of the relevant Australian flight simulators to satisfy all of the training and testing requirements for the issue of the ratings.

 

It applies to applicants for pilot type ratings for the Swearingen SA226/227 and Embraer EMB120 types of aircraft, pilot instructors who train those applicants and approved flight testers who conduct flight tests of those applicants. It provides exemptions from provisions of the Civil Aviation Safety Regulations 1998 that would otherwise prevent the training and testing being conducted in an aircraft.

 

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