Federal Register of Legislation - Australian Government

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CASA EX129/19 Exemptions as made
This instrument exempts the pilot in command of a relevant aeroplane, or a relevant single engine aeroplane, that is engaged in an aerial application operation, from specified provisions of the Civil Aviation Safety Regulations 1998 (CASR) and the Civil Aviation Regulations 1988. The main purpose of the instrument is to ensure that the higher of the 3 maximum take-off weights stated in subregulation 137.190(1) of CASR apply for these kinds of aeroplane.
Administered by: Infrastructure, Transport, Regional Development, Communications and the Arts
Exempt from sunsetting by the Legislation (Exemptions and Other Matters) Regulation 2015 s12 item 15
Registered 28 Nov 2019
Tabling HistoryDate
Tabled HR02-Dec-2019
Tabled Senate02-Dec-2019
To be repealed 30 Nov 2022
Repealed by Self Repealing

Explanatory Statement

Civil Aviation Safety Regulations 1998

CASA EX129/19 — Maximum Take-off Weight (Aerial Application Operations) Exemption 2019

Purpose

The purpose of CASA EX129/19 — Maximum Take-off Weight (Aerial Application Operations) Exemption 2019 (the instrument) is to ensure that the higher of the 3 maximum gross weights stated in subregulation 137.190 (1) of the Civil Aviation Safety Regulations 1998 (CASR) applies in relation to the take-off of a relevant aeroplane, or a relevant single engine aeroplane, that is engaged in an aerial application operation.

 

A relevant aeroplane is defined in section 3 of the instrument as an aeroplane, other than a relevant single engine aeroplane, that has a permanently installed jettison system to allow the pilot in command of the aeroplane to jettison, in flight, the contents of a hopper or vessel permanently installed in the aeroplane.

 

A relevant single engine aeroplane is defined in section 3 of the instrument as a registered single engine aeroplane that:

(a)   has a permanently installed jettison system to allow the pilot in command of the aeroplane to jettison, in flight, the contents of a hopper or vessel permanently installed in the aeroplane; and

(b)   is employed in private operations; and

(c)   has been issued a current certificate of airworthiness in the restricted category.

 

To achieve the purpose of the instrument, the instrument exempts the pilot in command of a relevant aeroplane, or a relevant single engine aeroplane, that is engaged in an aerial application operation, from subregulations 137.190 (1) and (2) of CASR, regulation 138 of the Civil Aviation Regulations 1988 (CAR) to a specified extent, and subregulation 235 (4) of CAR. The exemption is subject to conditions that are necessary in the interests of the safety of air navigation.

 

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 and CAR.

 

Regulation 137.010 of CASR includes the following definitions for Part 137 of CASR:

aerial application operation (or application operation) means:

(a)   a flight that is carried out by an aeroplane to apply application material; and

(b)   a flight by an aeroplane that is for, or partly for, 1 or more of the following:

             (i)  inspection of a work area;

            (ii)  pilot training or checking relating to a flight mentioned in paragraph (a);

           (iii)  training of a crew member other than the pilot;

           (iv)  travel from a landing area to a work area and back;

            (v)  the carriage of a passenger specified in regulation 137.135 for a purpose set out in that regulation; and

(c)   preparation for any activities mentioned in paragraphs (a) and (b).

application material means fertiliser, trace elements, seeds, baits, water, pesticides or other material.

 

apply, in relation to application material, means to drop or spray the material onto the ground or water.

 

Under subregulation 137.190 (1) of CASR, the pilot in command of an aeroplane engaged in an application operation must not commence a take-off if the aeroplane’s gross weight exceeds:

(a)   the maximum gross weight shown in the aeroplane’s flight manual; or

(b)   any maximum gross weight that:

             (i)  has been established for that type of aeroplane by a flight test supervised by CASA; and

            (ii)  is shown on a placard, approved by CASA and displayed in the aeroplane’s cockpit; or

(c)   the maximum gross weight shown on the type certificate, or type certificate data sheet, that is issued for the aeroplane by the national aviation authority of the State of Design (within the meaning given in Annex 8 to the Chicago Convention) of the aeroplane.

 

Under subregulation 137.190 (2) of CASR, the pilot must calculate the take-off weight of the aeroplane by a method that includes calculating the weight of:

(a)   the crew and any equipment carried; and

(b)   the aeroplane’s fuel and load.

 

Under subregulation 138 (1) of CAR, if a flight manual has been issued for an Australian aircraft, the pilot in command of the aircraft must comply with a requirement, instruction, procedure or limitation concerning the operation of the aircraft that is set out in the manual.

 

Under subregulation 138 (2) of CAR, if a flight manual has not been issued for an Australian aircraft and, under the relevant airworthiness standards for the aircraft, the information and instructions that would otherwise be contained in an aircraft’s flight manual are to be displayed either wholly on a placard, or partly on a placard and partly in another document, the pilot in command of the aircraft must comply with a requirement, instruction, procedure or limitation concerning the operation of the aircraft that is set out:

(a)   on the placard; or

(b)   on the placard or in the other document.

 

Under subregulation 235 (1) of CAR, CASA may, for the purposes of these Regulations, give directions setting out the method of estimating, with respect to an aircraft at anytime:

(a)   the weight of the aircraft, together with the weight of the persons and goods (including fuel) on board the aircraft, at that time; and

(b)   the centre of gravity of the aircraft at that time.

 

Subregulation 2 (1) of CAR defines these Regulations as including CASR.

 

Under subregulation 235 (4) of CAR, it is an offence for the pilot in command of an aircraft to allow the aircraft to take off if its gross weight exceeds its maximum take-off weight or, if a lesser weight determined in accordance with a direction under subregulation (2) is applicable to the take-off, that lesser weight.

Under subregulation 235 (2A) of CAR it is an offence for a person to contravene a direction given under subregulation 235 (1) or (2) of CAR. Civil Aviation Order 100.7, as in force from time to time (CAO 100.7) contains directions for subregulation 235 (1). There are no directions for subregulation 235 (2) relevant to the instrument.

 

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, the Civil Aviation Safety Authority (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.

 

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 11.175 (4) of CASR, in deciding whether to reissue an exemption, 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 reissue 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 of CASR, 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) of CASR, the maximum duration of an exemption is 3 years.

 

Background

The instrument replaces instrument number CASA EX164/17, Exemption — maximum take‑off weight requirements in aerial application operations (the current instrument), the latest in a series of exemptions relating to this matter (see instrument numbers CASA EX217/15, EX01/12, EX38/11, EX30/09, EX09/07 and EX33/2004). CASA anticipates that the instrument will not be necessary when Part 137 of CASR is amended to obviate the need for the exemptions. This amendment is expected to occur within the next 3 years.

 

Under subregulation 137.190 (1) of CASR, it is an offence for the pilot in command of an aeroplane engaged in an application operation to commence a take-off if the aeroplane’s gross weight exceeds any of the 3 maximum gross weights specified in the subregulation. This in effect requires compliance with the lowest specified maximum gross weight. Also, subregulation 137.190 (2) of CASR does not state that the pilot must calculate the take-off weight by a method that involves calculating the empty weight of the aircraft.

 

CASA’s preferred approach is that the pilot in command not commence take-off if the aeroplane exceeds the highest of the 3 maximum gross weights mentioned in subregulation 137.090 (1) of CASR, and that the pilot calculate the take-off weight of the aeroplane by a method that includes taking into account the empty weight of the aircraft, determined in accordance with CAO 100.7.

Overview of instrument

The instrument provides an exemption from specified provisions of CASR and CAR for the pilot in command of a relevant aeroplane, or a relevant single engine aeroplane, that is engaged in an aerial application operation. The exemption applies in relation to aircraft with a permanent hopper and distribution mechanism that are used for aerial application operations.

 

Conditions are imposed on the exemption that in effect require the pilot in command not to commence a take-off of the aeroplane if the aeroplane’s gross weight exceeds the highest of 3 maximum gross weights stated in subregulation 137.190 (1) of CASR. The conditions also require the pilot in command to calculate the take-off weight of the aeroplane by a method that involves calculating the total of the following:

(a)   the weight of the crew and any equipment carried on the aeroplane;

(b)   the weight of the aeroplane’s fuel and load;

(c)   the empty weight of the aeroplane, as determined under CAO 100.7.

 

CASA has assessed the impact the instrument will have on aviation safety, and is satisfied that the conditions imposed on the exemption will preserve an acceptable level of safety.

 

Documents incorporated by reference

Under subsection 14 (2) of the Legislation Act 2003 (the LA), unless the contrary intention appears, a legislative instrument may not incorporate any matter contained in an instrument or other writing as existing from time to time. Paragraph 98 (5D) (a) of the Act provides that, despite section 14 of the LA, 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.

 

In accordance with paragraph 15J (2) (c) of the LA, the following table contains a description of the documents incorporated by reference into the instrument, the organisation responsible for each document and how they may be obtained. The table also states how the document is incorporated.

 

Document

Description

Source

Aeroplane’s type certificate, as it exists from time to time

A certificate issued by CASA under regulation 21.013A or 21.029 of CASR, which certifies that the aeroplane meets the airworthiness standards mentioned for the aeroplane in the certificate

 

It includes the type design, the operating limitations, the type certificate data sheet (TCDS), the applicable airworthiness standards for which the certificate records compliance, and any other conditions or limitations prescribed for the aircraft under the regulations (see subregulation 21.041 (2) of CASR)

 

The TCDS, for the aeroplane, shows the maximum gross weight of the aeroplane

Freely available on the CASA website. At the time the instrument commences, available at the following webpage:

https://www.casa.gov.au/licences-and-certification/aircraft-certification-and-design/australian-and-foreign-manufactured-aircraft

Aeroplane’s foreign type certificate, as it exists from time to time

A certificate issued by the national aviation authority (NAA) of a foreign country for the aeroplane, and is equivalent to a type certificate

 

A reference to a foreign type certificate includes the type design, operating limitations, TCDS, and applicable airworthiness standards for which the certificate records compliance, and any other conditions or limitations prescribed for the aircraft (see subregulation 21.041 (2) of CASR)

 

The TCDS, for the aeroplane, shows the maximum gross weight of the aeroplane

Most NAAs that issue a foreign type certificate, for an aeroplane, generally publish the TCDS for the aeroplane (not the whole certificate) on their website as it is the TCDS that includes the relevant technical information, including the maximum gross weight of the aeroplane

 

For example, as at the time the instrument commences, TCDSs, for aeroplanes, issued by the European Union Aviation Safety Agency are available at: https://www.easa.europa.eu/document-library/type-certificates

 

By prior arrangement, CASA can arrange for viewing of any foreign type certificate, or the TCDS, for an aeroplane, at a CASA office, upon request

Aeroplane’s flight manual, as it exists from time to time

A document containing the information required to safely operate the aeroplane

 

Flight manual is defined in clause 37 of Part 2 of the CASR Dictionary, and this definition is noted in the instrument. The definition states that a flight manual includes CASA-approved and other amendments to the flight manual, and CASA-approved and other supplements to the flight manual

Flight manuals are publicly available, but not for free. The flight manual for an aeroplane is proprietary to the owner of the aeroplane design (usually the manufacturer). It is made available to the aeroplane’s operator by the relevant aeroplane manufacturer, and the aeroplane’s operator provides copies to its pilots

Where available, and by prior arrangement, CASA will make an aeroplane’s flight manual available for inspection at a CASA office, upon request

Placard, as it exists from time to time, which is approved in writing by CASA and displayed in an aeroplane’s cockpit

A document that includes information and instructions that would otherwise be contained in an aeroplane’s flight manual (see subregulation 138 (2) of CAR)

 

Incorporated in the instrument because for some aeroplanes there are no other freely available documents available to serve the purpose for which the placard is incorporated

Held by the aeroplane’s operator, and made available to the flight crew, for a flight, of the aeroplane

 

May not otherwise be publicly available as it is designed for display in the aeroplane’s cockpit

Civil Aviation Order 100.7, as in force from time to time

A legislative instrument that gives directions under subregulation 235 (1) of CAR relating to the method of estimation of an aircraft’s gross weight

CAO 100.7 is freely available on the Federal Register of Legislation

 

As at the commencement of the instrument, it is available at the following webpage: https://www.legislation.gov.au/Details/F2015L01127

 

CASA has incorporated the flight manual for each aircraft, and the placard, for safety reasons and because there are no other freely available documents serving the relevant purpose.

 

Content of instrument

Section 1 of the instrument states the name of the instrument.

 

Section 2 states the duration of the instrument.

 

Section 3 defines the following terms for the instrument: aerial application operation, employed in private operations, relevant aeroplane and relevant single engine aeroplane.

 

Subsection 4 (1) provides an exemption for the pilot in command of a relevant aeroplane, or a relevant single engine aeroplane, that is engaged in an aerial application operation from compliance with subregulations 137.190 (1) and (2) of CASR, subregulation 235 (4) of CAR, and regulation 138 of CAR to the extent that it requires the pilot to comply with a requirement, instruction, procedure or limitation about the aeroplane’s maximum take-off weight that is set out in the aeroplane’s flight manual, or another document mentioned in the regulation.

 

Section 5 states conditions on the exemption. The conditions are substantially the same as those in the current instrument. They impose:

·         a requirement that the pilot in command of the aeroplane not commence a take-off of the aeroplane if the aeroplane’s gross weight exceeds the highest of the 3 specified maximum gross weights; and

·         a requirement that the pilot in command of the aeroplane calculate its take-off weight by a method that involves calculating the total of the weights mentioned in the condition.

 

The condition in subsection 5 (1) specifies, as one of the 3 maximum gross weights, the maximum gross weight shown on the type certificate, or foreign type certificate, for the aeroplane, as it exists from time to time. The terms type certificate and foreign type certificate are defined in subregulation 21.041 (1) of CASR. Subregulation 21.041 (2) of CASR provides that a reference to a type certificate, or foreign type certificate, for an aircraft, includes a reference to the TCDS for the aircraft. This means that for the purposes of paragraph 5 (1) (c) of the instrument, the maximum gross weight may be shown on the TCDS for the aeroplane.

 

Legislation Act 2003

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) 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 the pilot in command of an aircraft of a specified kind (a class of persons) from the requirements of various stated provisions of CAR and 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

The instrument renews the exemption under instrument CASA EX164/17 for 3 years. No concerns have been raised with CASA regarding the operation of that instrument. The instrument operates for the benefit of the operator, and pilot in command, of a relevant aeroplane or relevant single engine aeroplane. CASA anticipates that the exemption will no longer be required once Part 137 of CASR is amended, which is expected to occur within the next 3 years.

 

In these circumstances, CASA is satisfied that no consultation is appropriate, or reasonably practicable, for the instrument for section 17 of the LA.

 

Office of Best Practice Regulation (OBPR)

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.

 

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.

 

The instrument commences on 1 December 2019, and will be repealed at the end of 30 November 2022.

Attachment 1

Statement of Compatibility with Human Rights

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

 

CASA EX129/19 — Maximum Take-off Weight (Aerial Application Operations) Exemption 2019

 

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.

 

Overview of the legislative instrument

The legislative instrument exempts the pilot in command of a relevant aeroplane, or a relevant single engine aeroplane, that is engaged in an aerial application operation, from specified provisions of the Civil Aviation Safety Regulations 1998 (CASR) and the Civil Aviation Regulations 1988 (CAR). The main purpose of the instrument is to ensure that the higher of the 3 maximum take-off weights stated in subregulation 137.190 (1) of CASR apply for these kinds of aeroplane.

 

A relevant aeroplane is an aeroplane, other than a single engine aeroplane, that has a permanently installed jettison system to allow the pilot in command of the aeroplane to jettison, in flight, the contents of a hopper or vessel permanently installed in the aeroplane.

 

A relevant single engine aeroplane is a registered single engine aeroplane that:

(a)   has a permanently installed jettison system to allow the pilot in command of the aeroplane to jettison, in flight, the contents of a hopper or vessel permanently installed in the aeroplane; and

(b)   is employed in private operations; and

(c)   has been issued a current certificate of airworthiness in the restricted category.

 

The pilot in command is exempted from subregulations 137.190 (1) and (2) of CASR, regulation 138 of CAR to a specified extent, and subregulation 235 (4) of CAR. These provisions relate to the maximum gross weight at which an aeroplane may take‑off or the method of calculation of the maximum take-off weight of the aeroplane.

 

The exemption is subject to conditions that are necessary in the interests of the safety of air navigation.

 

Human rights implications

The legislative instrument does not engage any of the applicable rights or freedoms.

 

Conclusion

The legislative instrument is compatible with human rights as it does not raise any human rights issues.

 

Civil Aviation Safety Authority