Explanatory Statement
Civil Aviation Regulations 1988
Civil Aviation Safety Regulations 1998
CASA EX136/20 — Incendiary Dropping Operations (Aerial Application Rating) Instrument 2020
Purpose
The purpose of the instrument is to revise the requirement for a pilot to hold an aerial application rating for conducting incendiary dropping operations below 500 feet above ground level (low-level incendiary dropping operations) in aeroplanes or rotorcraft, as currently prescribed in Part 61 of the Civil Aviation Safety Regulations 1998 (CASR).
A pilot who is working for an operator covered by the instrument will only require a low-level rating and relevant low-level endorsement to conduct low-level incendiary dropping operations.
The instrument repeals a previous instrument, CASA EX25/20 — Incendiary Dropping (At or Above 500 Feet) Exemption 2020 (CASA EX25/20), which did not affect the requirement to hold an aerial application rating.
The instrument also:
· grants exemptions to allow aeroplane operators and their pilots a choice between conducting low-level incendiary dropping operation in accordance with Part 137 of CASR or in accordance with Civil Aviation Order 29.5 (CAO 29.5), as if it applied to the aircraft
· issues directions relating to the dropping of incendiaries
· grants a general permit to conduct incendiary dropping operations at lower than 500 feet over non-populous areas.
Those operators taking advantage of the instrument will be required to hold an Air Operator’s Certificate (AOC) that authorises dropping operations, and to have an operations manual that contains the procedures stated in section 11 of the instrument.
Legislation
Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides that the Governor-General may make regulations for the Act and the safety of air navigation. Subsection 98 (5A) of the Act provides that the regulations may empower the Civil Aviation Safety Authority (CASA) to issue instruments in relation to matters affecting the safe navigation and operation of aircraft.
Exemptions
Subregulation 11.160 (1) of CASR provides that, for subsection 98 (5A), CASA may grant an exemption from a provision of the regulations in relation to a matter mentioned in that subsection. 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 11.160 (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 by a person, 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.
Under subregulation 11.205 (1) of CASR, 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, an exemption must be published on the Internet. Under subregulation 11.230 (1) of CASR, the maximum duration of an exemption is 3 years.
Directions
Subpart 11.G of CASR provides for CASA to issue directions in relation to matters affecting the safety of air navigation. Under paragraph 11.245 (1) (a) of CASR, CASA may, by instrument, issue a direction about any matter affecting the safe navigation and operation of aircraft. Subregulation 11.245 (2) provides that CASA may issue such a direction if CASA is satisfied that it is necessary to do so in the interests of the safety of air navigation, if the direction is not inconsistent with the Act, and for the purposes of CASA’s functions.
Under paragraph 11.250 (a) of CASR, a direction under regulation 11.245 ceases to be in force on the day specified in the direction. Under regulation 11.255 of CASR, it is an offence of strict liability to contravene a direction under regulation 11.245.
In addition, under subregulation 215 (3) of the Civil Aviation Regulations 1988 (CAR), CASA may give a direction requiring an operator to include particular information, procedures and instructions in its operations manual, or to revise or vary the information, procedures and instructions contained in the operations manual.
Parts 61 and 137 of CASR
Part 61 of CASR sets out flight crew licensing, rating and endorsement requirements.
Under subregulation 61.065 (1) of CASR, a holder of a flight crew licence commits an offence if the holder conducts an activity mentioned in Part 61 while piloting a registered aircraft and the holder is not authorised under that Part to conduct the activity.
Under subregulation 61.375 (7) of CASR, a holder of a pilot licence is authorised to conduct an activity mentioned in column 1 of an item in table 61.375 in the exercise of the privileges of the licence only if the holder also holds the rating mentioned in column 2 of the item. Item 6 in table 61.375 requires an aerial application rating for an aerial application operation carried out below 500 feet above ground level.
Subpart 61.Q of CASR deals with low-level ratings and endorsements.
Subpart 61.R of CASR deals with aerial application ratings. Under regulation 61.1115 of CASR, the applicant for an aerial application rating must, among other things, hold a commercial pilot licence or an air transport pilot licence and have passed the flight test mentioned for the rating in the Part 61 Manual of Standards.
Part 137 of CASR deals with aerial application operations by aeroplanes. It covers the dropping of incendiaries for controlled burning and other firefighting purposes.
Dropping
Under subregulation 150 (1) of CAR, it is an offence of strict liability for the pilot in command of an aircraft in flight to permit anything to be dropped from the aircraft. However, under subregulation 150 (2), nothing in regulation 150 shall prevent the dropping of packages or other articles or substances to initiate controlled burning in accordance with directions issued by CASA to ensure the safety of the aircraft as far as practicable and to minimize hazard to persons, animals or property.
CAO 29.5 (also known as section 29.5 of the Civil Aviation Orders) issues directions under subregulation 150 (2) of CAR relating to the miscellaneous dropping of articles from aircraft in flight. Subsection 1 of CAO 29.5 states that CAO 29.5 applies to all Australian aircraft except those aircraft engaged in aerial application operations and aerial application training operations. Subsection 1A of that CAO provides that aerial application operation has the meaning given by regulation 61.010 of CASR, which defines that term to mean a flight that is carried out by an aircraft to apply application material. Consequently, CAO 29.5 does not, by itself, apply to incendiary dropping operations in aeroplanes or rotorcraft.
Low flying
Regulation 157 of CAR deals with low flying and sets a minimum height of 500 feet for flights over an area other than a city, town or populous area. Under paragraph 157 (4) (b), CASA may issue a general or specific permit to the owner or operator of an aircraft engaged in aerial work operations to enable them to fly below that minimum height.
Background
Aerial baiting and incendiary dropping
At present, persons engaged in incendiary dropping operations are required to hold an aerial application rating under Part 61 before they can fly below 500 feet. While Part 137 applies only to aeroplanes, subregulation 61.375 (7) requires a pilot to hold an aerial application rating, before they can conduct a low-level (below 500 feet) aerial application operation in an aeroplane or a rotorcraft.
Under the definition of application material in regulation 137.010 of CASR, material applied in an aerial application operation covers both aerial baiting and, as “other material”, incendiaries. An aerial application operation is defined in regulation 61.010 utilising the definition of application material in Part 137.
The introduction of Parts 61 and 137 into CASR caused a divergence from previous policy in relation to aerial baiting and incendiary dropping operations. Before their introduction, pilots carrying out such operations under Part 5 of CAR were only required to carry out low-flying training before doing so, and the operator had to have suitable operations manual procedures in place.
Under transitional provisions following the introduction of the new legislation, pilots who had been operating under Part 5 of CAR were deemed to hold low-level ratings and low-level category endorsements, and new entrants had to obtain those qualifications. However, the qualification for carrying out low-level aerial baiting and incendiary dropping operations was upgraded to obtaining an aerial application rating. As a result, most of the pilots involved in low-level aerial baiting and incendiary dropping do not hold the required qualification. It requires more extensive training than that previously considered necessary for aerial baiting and incendiary dropping, which utilise a different flight profile from other aerial application operations, such as the spraying of agricultural chemicals. It also does not permit holders of private pilot licences to apply for the rating, being restricted to holders of commercial pilot licences and air transport pilot licences.
In the case of aerial baiting, the situation was rectified by the introduction of CASA EX69/16, Exemption — from holding an aerial application rating for aerial baiting operations and from Part 137 of CASR 1998, since replaced by CASA EX44/19 — Aerial Baiting Operations Exemption 2019, which allowed aerial baiting to be carried out below 500 feet under a low-level rating, subject to compliance with the specified conditions.
This instrument will relax the qualifications required for incendiary dropping below 500 feet, subject to compliance with conditions that maintain at least an acceptable level of aviation safety.
Overview of instrument
The instrument exempts pilots and operators from compliance with subregulations 61.065 (1) and 61.375 (7) but only in relation to the requirement to hold an aerial application rating for conducting an incendiary dropping operation.
Instead of the aerial application rating, required under Part 61, the instrument requires the pilot to hold a low-level rating, with a low-level endorsement for the appropriate category of aircraft.
Exemptions from Part 137 contained in the previous instrument, CASA EX25/20, are included in this instrument. In addition, directions and a low-flying permit are included to allow low-level incendiary dropping operations, subject to appropriate safety-related requirements.
Regulation 137.235 of CASR provides that it is an offence for the operator of an aeroplane if the aeroplane is used to conduct an application operation and the pilot is not authorised under Part 61 of CASR. This instrument authorises the pilot in command to conduct a low-level incendiary dropping operation under Part 61. Subject to the exemption, it is intended that pilots in command and operators carry out low-level operations in compliance with the requirements contained in CASR and CAR and the Civil Aviation Orders.
Each operator is required to hold an AOC that authorises commercial incendiary dropping operations, and to have an appropriate operations manual with suitable procedures for such operations. The operator must comply with the directions in section 11 of the instrument, which are set out below.
Content of instrument
Section 1 of the instrument sets out the name of the instrument.
Section 2 of the instrument sets the duration of the instrument. It sets different repeal dates for different provisions of the instrument to allow the continuation of record-keeping requirements after the main provisions of the instrument have been repealed.
Section 3 of the instrument repeals the previous instrument, CASA EX25/20.
Section 4 of the instrument contains a definition of incendiary dropping operation. It also includes a note referring to various terms and expressions defined in the Act and CASR and CAR.
Section 5 of the instrument states that the instrument applies to the operator, and the pilot in command, of an aeroplane or a rotorcraft that is engaged in an incendiary dropping operation.
Subsection 6 (1) of the instrument exempts a pilot in command from compliance with subregulations 61.065 (1) and 61.375 (7), but only in relation to the requirement to hold an aerial application rating for conducting low-level incendiary dropping operations.
Under subsection 6 (2) of the instrument, the exemption in subsection 6 (1) is subject to a condition that requires the pilot in command of an aircraft being used in a low-level incendiary dropping operation to hold a low-level rating, with a low-level endorsement for the category of aircraft.
The note to section 6 confirms that the pilot in command must comply with the requirements of Subpart 61.Q, which contains limitations on the exercise of the privileges of low-level ratings.
Sections 7 and 8, in effect, replicate the exemptions previously in sections 5 and 6 of CASA EX25/20. They allow aeroplane operators and pilots a choice between conducting incendiary dropping operations in accordance with Part 137 of CASR or CAO 29.5.
Section 7 provides that the pilot is exempt from compliance with Part 137 of CASR in relation to the incendiary dropping operation. The exemption is subject to the condition that the pilot must comply with CAO 29.5 as if CAO 29.5 applies to aircraft engaged in incendiary dropping operations. CAO 29.5 does not otherwise apply in relation to aircraft engaged in aerial application operations.
Section 8 provides that the operator is also exempt from compliance with Part 137 of CASR in relation to the incendiary dropping operation. The exemption is subject to the condition that the operator take reasonable steps to ensure that the pilot complies with the condition relating to compliance with CAO 29.5.
Section 9 of the instrument contains directions under subregulation 150 (2) of CAR. Subsection 9 (1) requires the pilot in command of a rotorcraft engaged in an incendiary dropping operation to comply with CAO 29.5, as if that CAO applied to aircraft engaged in such operations. The directions in CAO 29.5 are appropriate for incendiary dropping operations, but do not, by themselves, apply to incendiary dropping operations as aerial application operations are excluded from the application of the CAO. Subsection 9 (1) has the effect that, for an incendiary dropping operation in a rotorcraft, the pilot in command must comply with the directions in CAO 29.5. A further effect of subsection 9 (1) is that dropping of an incendiary in accordance with the directions in CAO 29.5 will not be a contravention of subregulation 150 (1) of CAR.
Similarly, subsection 9 (2) requires the pilot in command of an aeroplane engaged in an incendiary dropping operation to comply with either Part 137 of CASR or CAO 29.5, as if that CAO applies to aircraft engaged in such operations. Subsection 9 (2) has the effect that, for an incendiary dropping operation in an aeroplane, the pilot in command has a choice between complying with Part 137 of CASR or with the directions in CAO 29.5. A further effect of subsection 9 (2) is that dropping of an incendiary in accordance with Part 137 of CASR or the directions in CAO 29.5 will not be a contravention of subregulation 150 (1) of CAR.
Section 10 of the instrument grants a general permit, under paragraph 157 (4) (b) of CAR, to each owner or operator that is engaged in an incendiary dropping operation. It, therefore, allows the pilot in command of an aircraft conducting such an operation to fly the aircraft over an area, other than a city, town or populous area, at a height lower than 500 feet above ground or water level. The permit is consistent with the permit in subparagraph 6.1 (b) of CAO 29.5 for similar dropping operations.
Section 11 of the instrument contains directions to the operator of an aeroplane or rotorcraft that is engaged in an incendiary dropping operation.
Subsection 11 (1) requires the operator’s operations manual to include procedures for the conduct of incendiary dropping operations, and training for such operations, that include procedures for low-level operations. Subsections 11 (2) and (3) contain further details of the procedures that the operator must include in its operations manual. They must include procedures for the operator and the pilot to:
(a) identify the hazards associated with each particular incendiary dropping operation; and
(b) assess the extent and nature of those hazards; and
(c) put in place processes which mitigate the risks that the hazards create while carrying out the operation; and
(d) ensure that communication and coordination between the flight crew and any additional operating crew is carried out in a safe and effective manner for both normal and emergency operations as required.
The procedures must also include procedures for the operator to ensure that the pilot in command of an aircraft being used in a low-level incendiary dropping operation holds a low‑level rating, with a low-level endorsement for the category of aircraft being used.
Under subsection 11 (4), the operator must ensure records of risk management processes are preserved for at least 3 years and made available for inspection by CASA for audit and safety record management. The note at the foot of subsection 11 (4) refers you to subregulations 215 (6) and (8) of CAR for an operator’s obligation to provide CASA with a copy of its operations manual and amendments, including the relevant procedures mentioned in subsection 11 (1).
Subsection 11 (5) directs the operator to take reasonable steps to ensure that the pilot in command of the aircraft complies with the directions in section 9. The relevant direction in section 9 depends on whether the aircraft is an aeroplane or a rotorcraft.
Documents incorporated by reference
This instrument incorporates by reference matters in various provisions of CASR and CAO 29.5. In accordance with paragraph 10 (a) of the Acts Interpretation Act 1901 and paragraphs 13 (1) (a) and 14 (1) (a) of the Legislation Act 2003 (the LA), those legislative instruments are incorporated as in force from time to time.
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. Also, 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 exemptions and directions in the instrument apply to classes of persons, being the operators of aircraft engaged in incendiary dropping operations and the pilots in command of the aircraft. 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 not undertaken a formal process of consultation under section 17 of the LA by canvassing the views of operators and pilots.
This instrument has been prepared because of representations made by the section of the industry involved in low-level incendiary dropping operations. The previous history is mentioned in the “Background” section of this Explanatory Statement. The instrument exempts pilots in command from holding an aerial application rating, if they hold a low-level rating and a relevant low-level endorsement instead. The pilot and operator of the aircraft must also meet other safety requirements, including requirements that apply to other dropping operations.
In these circumstances, CASA is satisfied that no further 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 instrument is covered by a standing agreement between CASA and OBPR under which a RIS is not required for exemptions and directions (OBPR id: 14507).
Sector risk, economic and cost impact
Subsection 9A (3) of the Act states that, subject to regarding the safety of air navigation as the most important consideration, in developing and promulgating aviation safety standards under paragraph 9 (1) (c), CASA must:
(a) consider the economic and cost impact on individuals, businesses and the community of the standards; and
(b) take into account the differing risks associated with different industry sectors.
The cost impact of a standard refers to the direct cost (in the sense of price or expense) which a standard would cause individuals, businesses and the community to incur. The economic impact of a standard refers to the impact a standard would have on the production, distribution and use of wealth across the economy, at the level of the individual, relevant businesses in the aviation sector, and the community more broadly. The economic impact of a standard could also include the general financial impact of that standard on different industry sectors.
The instrument makes minor or machinery changes to existing arrangements. However, the instrument will have positive cost impacts for affected individuals and businesses. The cost of operators needing to ensure that their pilots have an aerial application rating would be highly significant, especially for a sector of industry in which there is a low number of appropriate flight examiners. Given the relatively small sector of the aviation industry affected by the instrument, there is no significant economic impact on the community.
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.
Commencement and making
The exemption 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 the day after it is registered. The exemptions in sections 6 to 8, the directions in section 9 and subsections 11 (1) to (3) and (5) and the permit in section 10 of the instrument are repealed at the end of 30 September 2023. The remainder of the instrument, including the direction in subsection 11 (4) of the instrument, is repealed at the end of 30 September 2026.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX136/20 — Incendiary Dropping Operations (Aerial Application Rating) Instrument 2020
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 legislative instrument is to exempt pilots conducting incendiary dropping operations below 500 feet above ground or water level from holding an authorisation required under Part 61 of the Civil Aviation Safety Regulations 1998 (CASR). Under this instrument, pilots and operators will be allowed to conduct such operations without the pilot holding an aerial application rating, if the pilot holds a low-level rating and a low-level endorsement for the category of aircraft being used.
The instrument would have the effect of replacing CASA EX25/20 — Incendiary Dropping (At or Above 500 Feet) Exemption 2020 (CASA EX25/20) with less restrictive requirements. Exemptions from Part 137 of CASR contained in CASA EX25/20, are included in this instrument. In addition, directions and a low-flying permit are included to allow low-level incendiary dropping operations.
The exemptions and authorisations are subject to conditions and directions that CASA has imposed in the interests of aviation safety.
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