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CASA EX86/21 Exemptions as made
This instrument provides for a number of exemptions and directions in relation to Part 138 of the Civil Aviation Safety Regulations 1998.
Administered by: Infrastructure, Transport, Regional Development and Communications
Exempt from sunsetting by the Legislation (Exemptions and Other Matters) Regulation 2015 s12 item 15
Registered 05 Oct 2021
Tabling HistoryDate
Tabled HR18-Oct-2021
Tabled Senate18-Oct-2021
To be repealed 01 Dec 2024
Repealed by Self Repealing

Instrument number CASA EX86/21

I, PHILIPPA JILLIAN SPENCE, Director of Aviation Safety, on behalf of CASA, make this instrument under regulations 11.160, 11.205 and 11.245 of the Civil Aviation Safety Regulations 1998.

[Signed P. Spence]

Pip Spence
Director of Aviation Safety

1 October 2021

Part 1             Preliminary, Definitions and Application

1          Name

                 This instrument is CASA EX86/21 – Part 138 and Part 91 of CASR – Supplementary Exemptions and Directions Instrument 2021.

2          Duration

                 This instrument:

(a)   commences on 2 December 2021 (the commencement date); and

(b)   is repealed at the end of 1 December 2024 (thereby, for paragraph 11.250 (a) of CASR, ceasing to be in force on and from the beginning of 2 December 2024).

3          Definitions

        (1)     In this instrument:

aerial work certificate holder has the same meaning as aerial work operator.

aerial work operator has the meaning given by the CASR Dictionary.

CAR means the Civil Aviation Regulations 1988, as in force immediately before 2 December 2021, and any mention of a provision of CAR refers to that provision as so in force.

CASR means the Civil Aviation Safety Regulations 1998.

civil aviation legislation has the meaning given by section 3 of the Civil Aviation Act 1988.

DAMP organisation has the meaning given by subregulation 99.010 (1) of CASR.

early applicant, for a particular AOC or AOC variation, means a person:

(a)   who at least 90 days before the commencement date — applied for the AOC or AOC variation under the civil aviation legislation in force on the date of the application; but

(b)   whose application was still under consideration by CASA on the commencement date.

emergency service operation has the meaning given by the CASR Dictionary.

limited aerial work operation has the meaning given in subsection 1.04 (6) of the Part 138 Manual of Standards.

limited aerial work operator has the meaning given in subsection 1.04 (6) of the Part 138 Manual of Standards.

medical exemption has the same meaning as in regulation 61.010 of CASR.

MOS is short for Manual of Standards.

operational safety-critical personnel has the meaning given by the CASR Dictionary.

Part 142 operator has the meaning given by subregulation 142.015 (4) of CASR.

private operation has the meaning given by the CASR Dictionary.

the Act means the Civil Aviation Act 1988.

        (2)     To avoid doubt, in this instrument, unless a contrary intention appears:

(a)   words and expressions have the same meaning as in Part 138 of CASR and in the Act; and

(b)   mention of a provision with the prefix “138.” is a reference to that provision as contained in Part 138 of CASR; and

(c)   mention of a provision with the prefix “91.” is a reference to that provision as contained in Part 91 of CASR, the CASR Dictionary and the Act, as applicable.

        (3)     To avoid doubt, any document incorporated into this instrument is so incorporated as it is in force from time to time.

4          Application

                 This instrument applies according to its terms.

Part 2             Exemptions from Part 138

5          Key personnel – unable to carry out responsibilities – exemption

        (1)     This section applies to an aerial work certificate holder (the operator).

        (2)     The operator is exempted from compliance with subregulation 138.075 (1).

        (3)     The exemption under subsection (2) is subject to the condition that the operator must comply with the requirements of subregulation 138.075 (1) as if the reference to “30 days” were a reference to “35 days”.

6          Compliance with requirements of aerial work certificate – CEO responsibilities – exemption

        (1)     This section applies to an aerial work certificate holder (the operator) who is not required under regulation 138.140 to have a safety management system.

        (2)     The operator is exempted from compliance with regulations 138.050 and 138.055, but only to the extent of the requirement that the operator must comply with the condition in paragraph 138.050 (1) (b) that relates to the responsibilities and accountabilities of the operator’s chief executive officer under paragraph 138.085 (1) (d).

        (3)     The exemption in subsection (2) is subject to the condition that the operator must ensure that the operations manual requirement under paragraph 138.155 (1) (l) is complied with.

7          Qualifications and experience of key personnel — exemption

        (1)     This section applies to an aerial work certificate holder (the operator) who, immediately before 2 December 2021, held an AOC, or was an early applicant for an AOC, authorising aerial work operations (other than solely for ambulance functions, within the meaning of subparagraph 206 (1) (a) (vii) of CAR).

        (2)     The operator is exempted from compliance with regulations 138.050 and 138.055:

(a)   only to the extent of the requirement that the operator must comply with the certificate conditions under paragraph 138.050 (1) (b) that relate to the qualifications and experience of the persons mentioned in subsection (3); and

(b)   only if the conditions in subsection (4) are complied with.

        (3)     For subsection (2), the persons are the following persons who, on 2 December 2021, are the key personnel, or proposed key personnel, of the operator to whom the provision mentioned for the person would apply, but for this exemption, or an exemption under section 16, 21 or 46 of CASA EX87/21 – Flight Operations Regulations – SMS, HFP&NTS and T&C Systems – Supplementary Exemptions and Directions Instrument 2021:

(a)   the head of operations who, immediately before 2 December 2021, was the operator’s chief pilot, or chief pilot and head of training and checking — in relation to the qualifications and experience mentioned in subregulation 138.090 (2);

(b)   the head of training and checking who, immediately before 2 December 2021, was the operator’s head of training and checking (if any) — in relation to the qualifications and experience mentioned in subregulation 138.100 (2);

(c)   the safety manager (if any) who, immediately before 2 December 2021, was the operator’s safety manager — in relation to the qualifications and experience mentioned in subregulation 138.110 (2).

        (4)     For subsection (2), unless otherwise approved by CASA under subsection (5), the conditions are that the operator’s operations manual, the training and checking manual and the safety management system manual, as the case requires, each includes and requires the same qualifications and experience, for each of the persons mentioned in subsection (3), as were included and required for the person, in the manual, immediately before 2 December 2021.

        (5)     For subsection (4), CASA may approve a change to any particular qualification and experience requirement mentioned in subsection (4), but only if:

(a)   the operator applies in writing, setting out the proposed change; and

(b)   the application is accompanied by the part of each manual to be affected by the proposed change, clearly showing the effect of the proposed change on that manual; and

(c)   the operator demonstrates how the proposed change would otherwise conform to the significant change process under paragraph 138.155 (1) (m); and

(d)   the change were approved, the requirements under regulation 138.040 for the issue of an aerial work certificate would continue to be met.

        (6)     This section ceases to have effect at the earlier of the following:

(a)   the day the operator’s aerial work certificate expires;

(b)   the end of 1 December 2024.

8          Requirements to have a training and checking system — exemption

        (1)     This section applies to an aerial work certificate holder (the operator) to whom regulation 138.125 would otherwise apply but for the following:

(a)   this exemption;

(b)   the exemptions in section 46 of CASA EX87/21 – Flight Operations Regulations – SMS, HFP&NTS, and T&C Systems – Supplementary Exemptions and Directions Instrument 2021.

        (2)     The operator is exempted from compliance with regulations 138.050 and 138.055, but:

(a)   only to the extent of the requirement that the operator must comply with the condition in paragraph 138.050 (1) (b) in relation to subregulation 138.125 (1); and

(b)   for paragraph (a), only for the purpose of complying with the condition set out in subsection (3).

        (3)     The exemption in subsection (2) is subject to the condition that, in its aerial work operations, the operator must comply with the requirements of subregulation 138.125 (1):

(a)   as if it only applied for a particular aircraft or a particular operation mentioned in subregulation 138.125 (1) (subject to any exclusion of an aircraft or operation by virtue of the operation of subregulation 138.125 (2) regardless of this exemption); and

(b)   as if it did not apply to any other particular aircraft or particular operation not mentioned in subregulation 138.125 (1).

9          Training and checking system requirements for operational safety‑critical personnel — exemption

        (1)     This section applies to an aerial work certificate holder (the operator) to whom subregulation 138.125 (3) applies.

        (2)     The operator is exempted from compliance with regulations 138.050 and 138.055, but:

(a)   only to the extent of the requirement that the operator must comply with the condition in paragraph 138.050 (1) (d) in relation to subregulation 138.125 (3); and

(b)   for paragraph (a), only to the extent of the requirement under subregulation 138.135 (1) that the operator’s training and checking system must include those operational safety-critical personnel (the relevant personnel) who are not any of the following:

             (i)  flight crew members;

            (ii)  other crew members who are assigned duties on board an aircraft in relation to the flying or safety of the aircraft.

        (3)     The exemption in subsection (2) is subject to the condition that the operator’s training and checking system must include a description of how the operator will satisfy itself:

(a)   that each of its relevant personnel:

             (i)  is competent to carry out their assigned duties; and

            (ii)  in carrying out the duties — is not likely to have an adverse effect on aviation safety; and

(b)   that immediate action will be taken in the interests of aviation safety if a relevant person:

             (i)  loses competence; or

            (ii)  is likely to have an adverse effect on aviation safety.

        (4)     This section ceases to have effect at the end of 1 March 2023.

Part 3             Exemptions from Part 91 and related directions

10        Carriage of medical and identification documents — exemption

        (1)     This section applies to the pilot in command of an aircraft for a flight that is conducted by an aerial work certificate holder.

        (2)     The pilot in command is exempted from compliance with subregulation 91.105 (1), but only to the extent of:

(a)   the documents mentioned in paragraph 91.105 (2) (a); or

(b)   a medical exemption.

        (3)     The exemption in subsection (2) is subject to the condition that:

(a)   before the flight begins, the pilot in command must give CASA written notice of the fact that, for a particular flight crew member (including the pilot in command), a particular document required under paragraph 91.105 (2) (a), or a medical exemption, will not be carried on the aircraft; or

(b)   if it is not practicable to comply with paragraph (a) — not later than 24 hours after the flight ends, the pilot in command must give CASA written notice of the fact that, for a particular flight crew member (including the pilot in command), a particular document required under paragraph 91.105 (2) (a), or a medical exemption, was not carried on the aircraft.

11        Application of Part 138 fuelling safety procedures instead of Part 91 fuelling requirements — persons on, boarding, or disembarking from, aircraft — exemption and direction

        (1)     This section applies to a private operation in an aircraft, conducted by an aerial work certificate holder.

        (2)     For the operation, the pilot in command of the aircraft is exempted from compliance with regulation 91.510.

        (3)     The exemption in subsection (2) is subject to the condition that the pilot in command must comply with any requirements in the operations manual prepared in accordance with regulation 138.302 that are applicable to the pilot in command for the private operation.

            Directions

        (4)     The operator must ensure that, for the private operation:

(a)   the operations manual provides for compliance with the requirements of regulation 138.302; and

(b)   such requirements are complied with by:

             (i)  the pilot in command; and

            (ii)  other crew members (if any); and

           (iii)  the operator’s personnel (if any) who carry out a ground support duty for a flight of the aircraft.

Note  The definition of private operation in the CASR Dictionary includes a limited aerial work, operation and other operations which are not required to be conducted under an AOC or another operating certificate. The intent of this section, and of sections 13 and 14, is to permit holders of aerial work certificates and pilots in command to comply with certain provisions of Part 138 and the Part 138 MOS, instead of the otherwise applicable provisions of Part 91 when conducting private operations, including, for example, such repositioning or ferry flights as are private operations.

12        Application of relevant Part 138 passenger safety procedures instead of Part 91 passenger safety briefing requirements — exemption and direction

        (1)     This section applies to an aerial work operation in an aircraft that is an emergency service operation conducted by an aerial work certificate holder.

        (2)     For the operation, the pilot in command of the aircraft is exempted from compliance with regulation 91.565 (Passengers — safety briefings and instructions).

        (3)     The exemption in subsection (2) is subject to the following conditions:

(a)   the pilot in command must be satisfied that it is not practicable to comply with regulation 91.565;

Note   Reasons for impracticability include the urgency of the flight and the medical condition of the passenger.

(b)   the pilot in command must comply with any procedures and requirements in the operations manual, prepared in accordance with regulation 138.155 in relation to subparagraph 138.305 (2) (c) (iii), that are applicable or relevant to the pilot in command for the emergency service operation.

            Directions

        (4)     The operator must ensure that paragraph (3) (b) is complied with for the operation.

13        Application of Part 138 performance requirements instead of Part 91 performance requirements — exemption and direction

        (1)     This section applies to a private operation in an aircraft, conducted by an aerial work certificate holder, provided that the private operation is not a limited aerial work operation.

        (2)     For the operation, the operator and the pilot in command of the aircraft are each exempted from compliance with each provision in Subpart 91.F (as applicable), but only if the operator and the pilot in command (as applicable) each comply with the directions in subsections (3) and (4).

            Directions

        (3)     The operator must ensure that for the operation:

(a)   the requirements of Divisions 1 and 2 of Chapter 18 of the Part 138 MOS are complied with; and

(b)   the operations manual provides for the compliance mentioned in paragraph (a).

        (4)     The pilot in command must comply with any requirements arising under subsection (3) that are applicable to the pilot in command.

14        Application of Part 138 weight and balance requirements instead of certain Part 91 weight and balance requirements — exemption and direction

        (1)     This section applies to a private operation in an aircraft, conducted by an aerial work certificate holder, provided that the private operation is not a limited aerial work operation.

        (2)     For the operation, the pilot in command of the aircraft is exempted from compliance with each provision in Subpart 91.J, but only if the operator and the pilot in command (as applicable) each comply with the directions in subsections (3) and (4).

            Directions

        (3)     The operator must ensure that for the operation:

(a)   the requirements of the provisions in Subpart 138.J are complied with; and

(b)   the operations manual provides for compliance with the requirements.

        (4)     The pilot in command must comply with any requirements arising under subsection (3) that are applicable to the pilot in command.

Part 4             Directions to Part 138 aerial work certificate holders

15        Compliance before and after flight with flight manual instructions — direction

        (1)     This section applies to the operator of an aircraft for an aerial work operation whether or not the operator holds an aerial work certificate (the operator).

        (2)     The operator must ensure that:

(a)   any activity in relation to the flight, that occurs before or after the flight; and

(b)   any activity that is required under the aircraft flight manual instructions for the aircraft to be carried out before or after the flight;

                 is carried out in compliance with any relevant limitation or requirement that:

(c)   is set out in the aircraft flight manual instructions for the aircraft; and

(d)   relates to the operation of the aircraft.

        (3)     Subsection (2) does not apply to a limitation or requirement if circumstances prescribed by the Part 138 MOS apply to the aircraft for the activity.

16        Develop and maintain a DAMP — direction

        (1)     This section applies to an aerial work certificate holder (the operator) for an aerial work operation in an aircraft.

        (2)     The operator must comply with the requirements of Part 99 of CASR as if the operator were a DAMP organisation to which Part 99 applied.

17        Training and checking — direction

        (1)     This section applies to an aerial work certificate holder (the operator) who, immediately before 2 December 2021:

(a)   conducted aerial work operations in an aircraft; but

(b)   did not hold an approval under subregulation 217 (3) of CAR for a training and checking organisation for the aircraft in the operations.

        (2)     On and after 2 December 2021, the operator must not implement, for the first time, and for the purposes of a provision mentioned in subsection (3), a training and checking system for the aircraft, including any related changes to the operator’s operations manual or training and checking manual, unless CASA has approved the implementation and the changes as if:

(a)   the implementation and the changes were each significant changes within the meaning of that expression in regulation 138.012; and

(b)   regulation 138.062 applied to the implementation and the changes.

        (3)     For subsection (2), the provisions are any of the following:

(a)   regulation 138.100;

(b)   regulation 138.105;

(c)   regulation 138.125.

18        Safety management system — direction

        (1)     This section applies to an aerial work certificate holder (the operator) who, immediately before 2 December 2021:

(a)   conducted aerial work operations in an aircraft; but

(b)   did not hold an approval from CASA, under the civil aviation legislation as then in force, for a safety management system (SMS) for the operations.

        (2)     On and after 2 December 2021, the operator must not implement, for the first time, and for the purposes of a provision mentioned in subsection (3), an SMS, including any related changes to the operator’s SMS manual, operations manual, or training and checking manual, unless CASA has approved the implementation and the changes as if:

(a)   the implementation and the changes were each significant changes within the meaning of that expression in regulation 138.012; and

(b)   regulation 138.062 applied to the implementation and the changes.

        (3)     For subsection (2), the provisions are any of the following:

(a)   paragraphs 138.085 (1) (c) and (d);

(b)   regulation 138.110;

(c)   regulation 138.115;

(d)   regulation 138.140.

19        Operation of foreign-registered aircraft — direction

        (1)     This section applies to an aerial work certificate holder (the operator) for an aerial work operation in an aircraft (the operation).

        (2)     On and after 2 December 2021, the operator must not do any of the following:

(a)   operate a foreign-registered aircraft (the relevant foreign aircraft) in an aerial work operation for the first time;

(b)   change the operation of the relevant aircraft (other than permanently to cease operating the aircraft);

                 unless CASA, in writing, has approved the operator’s application to operate the aircraft in the operation, or in the changed operation, as if:

(c)   the operation of the aircraft in the operation, or in the changed operation, were a significant change within the meaning of that expression in regulation 138.012; and

(d)   regulation 138.062 applied to the operation, or the change (as the case may be).

        (3)     Without affecting any requirement under paragraph (2) (d), an application for a CASA approval under subsection (2) must be accompanied by the information that is described in paragraphs 28A (1) (c) to (h) of the Act.

        (4)     If the relevant foreign aircraft was all of the following:

(a)   operated by the operator in an operation in the period immediately before 2 December 2021;

(b)   the subject of, or included under, an agreement of a kind mentioned in paragraph 28A (1) (a) or (b) of the Act that indicates the period of time during which the aircraft may be operated by the operator;

(c)   used by the operator in an aerial work operation on and after 2 December 2021;

                 then the operator must not operate the aircraft outside the period of time.

20        Survival equipment procedures — direction

        (1)     This section applies to an aerial work certificate holder (the operator) for an aerial work operation in an aircraft (the operation) if the aircraft is required to carry a life raft under section 26.60 of the Part 91 MOS.

        (2)     The operator’s operations manual must contain the procedures:

(a)   to be followed by the pilot in command of the operation, and the other flight crew, for the purposes of section 26.60; and

(b)   for determining the pyrotechnic signalling devices required to ensure the distress signals, set out in Appendix 1 to Annex 2, Rules of the Air, to the Chicago Convention (as in force from time to time), can be made.

        (3)     To avoid doubt, this section does not affect any requirement under regulation 138.345.

21        Additional responsibility of head of operations — direction

        (1)     This section applies to an aerial work certificate holder who is not required to have a training a checking system under regulation 138.125 (the operator).

        (2)     The operator must ensure that the head of operations has, and competently discharges, the following duties:

(a)   ensuring that training and checking of the operator’s operational safety‑critical personnel, whether conducted by or for the operator, is conducted in accordance with the operator’s operations manual;

(b)   if the operator has a contract with a Part 142 operator for training or checking the operator’s flight crew:

             (i)  ensuring that each person who conducts the training or checking for the Part 142 operator is authorised under Part 61 to do so; and

            (ii)  ensuring that the training or checking is conducted in accordance with the aerial work operator’s operations manual; and

           (iii)  telling the Part 142 operator, in writing, of any change in the aerial work operator’s operations manual.

22        Safety information — direction

        (1)     In this section:

safety information means any safety data or information, in any form, generated within, or captured, collected or held by and within, an aerial work certificate holder’s approved safety management system (including a flight data analysis program (FDAP), if any), including personal information relating to individuals.

        (2)     This section applies to an aerial work certificate holder (the operator) for aerial work operations (the operations) if the operator:

(a)   is required under regulation 138.140 to have an SMS for the operations; and

(b)   is not taking the benefit of the exemption from that obligation provided by CASA EX87/21 – Flight Operations Regulations – SMS, HFP&NTS, and T&C Systems – Supplementary Exemptions and Directions Instrument 2021.

        (3)     The operator must comply with the following provisions of Civil Aviation Order 82.5, as in force immediately before 2 December 2021, as if they applied to the operator and as they relate to any safety information arising from the operations:

(a)   subparagraphs 2A.2 (f) and (h);

(b)   subparagraph 2A.2 (g), but only to the extent that the operator has implemented an FDAP;

(c)   subparagraphs 2A.3 (d) and (e), but only to the extent that the operator has implemented an FDAP;

Note   The deemed application of sub-subparagraph 2A.3 (d) (i) does not prevent an operator from using safety information for the purposes of taking preventive, corrective or remedial action that is necessary to maintain or improve safety. An example of the use of safety information for these purposes is its use by an operator for internal training purposes.

(d)   subsection 2AA;

(e)   Appendix 1A.

        (4)     This section ceases to have effect at the end of 1 December 2024.