Commonwealth Numbered Regulations - Explanatory Statements

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CIVIL AVIATION REGULATIONS (AMENDMENT) 1998 NO. 219

Statutory Rules 1998 No. 219

(Issued by the authority of the Minister for Transport and Regional Development)

Civil Aviation Act 1988

Civil Aviation Regulations (Amendment)

Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides that the GovernorGeneral may make regulations for the purposes of the Act and in relation to the safety of air navigation.

Part XIII of the Civil Aviation Regulations deals with Air Service Operations. The amending Regulations insert a new Division "Airborne collision avoidance systems" into Part XIII. The new Division requires a turbine-powered commercial aeroplane (defined in the new Division) to be fitted with a type of airborne collision avoidance system known as TCAS II. The prime objective of the new regulations is to enhance the safety of civil aviation by reducing the risk of mid-air collisions.

A TCAS II fitted to a turbine-powered commercial aeroplane provides the pilot with information for averting mid-air collisions. The TCAS does not substitute for air traffic control, but acts as a defence against a breakdown of the air traffic control system. New regulation 262AA defines a turbine-powered commercial aeroplane as a largecapacity aeroplane propelled by turbojet, turbofan or turboprop engines that is being used, for hire or reward, to carry passengers, cargo, or both. The term "large-capacity aeroplane" is in turn defined in the new Division. Flight crew of these aeroplanes will have a timely warning of the presence of other aircraft presenting a collision hazard and recognised by the TCAS as an intruder or a threat.

Under new regulation 262AC, an Australian aircraft that is a turbine-powered commercial aeroplane must not, except in certain limited circumstances, begin a flight unless it is fitted with an approved TCAS II that is serviceable. Under regulation 262AG, a foreign aircraft that is a turbine-powered commercial aeroplane must not, except in certain limited circumstances, fly into, or begin a flight in, Australian territory unless it is fitted with an approved TCAS II that is serviceable. The aircraft may fly into Australian territory on a particular flight with an approved TCAS II that is unserviceable if it was serviceable when the flight began.

New regulations 262AD, 262AE, 262AF, 262AH, 262AI and 262AJ set out the duties of the pilot in command and the requirements for reporting flights without approved and serviceable TCAS II to Air Traffic Control. A TCAS II is controlled by a pilot in the cockpit and the control unit is clearly visible to the pilot. The pilot can determine whether the TCAS is approved by reference to the aircraft's flight manual or the operator's operations manual. If the TCAS fails during a flight, the mechanism provides a clear aural and visual indication of the failure to the pilot.

The new regulations follow intensive consultation with industry and there is wide support in industry for the new requirements. The new regulations are consistent with the obligations of Australia under the Chicago Convention and will bring the Australian regulatory requirements into greater alignment with internationally accepted requirements.

Details of the amending Regulations are attached.

A copy of the Regulation Impact Statement (RIS) and a copy of the Legislative Instrument Proposal (LIP) to which the RIS refers are also attached. The Office of Regulation Review has advised that the RIS is suitable for attachment to this Explanatory Statement.

The amending Regulations commenced on gazettal. However, in order to ensure that aircraft owners and operators have sufficient time to buy and install TCAS II, TCAS II will not be required to be fitted before 1 January 2000.

ATTACHMENT

DETAILS OF THE AMENDING REGULATIONS

REGULATION 1

Regulation 1 provides that the amending Regulations commence on gazettal.

REGULATION 2

Regulation 2 provides that the Civil Aviation Regulations (the Regulations) are amended as set out in the amending Regulations.

REGULATION 3

Regulation 3 inserts in subregulation 2 (1) of the Regulations definitions for the terms 'TAX' and "TSO". Both terms, currently defined in subregulation 252A (7) of the Regulations, are intended to have a general application.

REGULATION 4

Regulation 4 amends subregulation 252A (7) of the Regulations to omit the definitions of "FAX' and "TSO", consequential on the amendment to include those definitions in regulation 2 of the Regulations.

REGULATION 5

Regulation 5 inserts a new Division 5, "Airborne collision avoidance systems", into Part XIII of the Regulations.

New regulation 262AA defines the terms "ACAS", large-capacity aeroplane", "resolution advisory", "TCAS II", "traffic advisory", "turbine-powered commercial aeroplane" and "type certificate" for the purposes of the Division.

Under new regulation 262AB, a TCAS II is taken to be approved if it has a marking under an authority or approval issued by the Administrator of the FAA indicating compliance with the requirements of TSO-C119 or TSO-C119a. In the case of a TCAS II that is not so marked, the TCAS II is taken to be approved if its design, construction, installation and performance meet the requirements of TSO-C119 or TSO-C119a.

New regulations 262AC, 262AD, 262AE and 262AF come under Subdivision A which deals with Australian aircraft.

New subregulation 262AC (1) provides that an Australian aircraft that is a turbine-powered commercial aeroplane must not begin a flight unless it is fitted with an approved TCAS II that is serviceable. The requirement applies to beginning a flight and does not require the aircraft to land if its TCAS II becomes unserviceable during the flight.

New subregulation 262AC (2) provides that the requirement in subregulation 262AC (1) does not apply if the flight is for the purpose of moving the aircraft to have an approved TCAS II fitted or to have its approved but unserviceable TCAS II repaired, removed or overhauled. New subregulation 262AC (2) also provides that subregulation 262AC (1) does not apply to cases where the inclusion of an approved but unserviceable TCAS II in the aircraft amounts to a permissible unserviceability, a term defined in regulation 2 of the Regulations.

Under new regulation 262AD, it is the duty of the aircraft's pilot in command to take all reasonable steps to ensure that the aircraft's TCAS II is activated at all times during flight.

New regulations 262AE and 262AF deal with the requirements for reporting flights without approved and serviceable TCAS II. Under new regulation 262AE, if a TCAS II in an Australian aircraft to which the new regulations apply becomes unserviceable while the aircraft is in flight in, or on a flight into, Australian territory, the pilot in command is required to inform Air Traffic Control of the =serviceability. Before beginning a flight in Australian territory in an Australian aircraft in circumstances covered by new subregulation 262AC (2), the pilot in command is required, under new regulation 262AF, to inform Air Traffic Control accordingly.

New regulations 262AG, 262AH, 262AI and 262AJ come under Subdivision B which deals with foreign aircraft. These provisions to a large extent mirror the proposed amendments in Subdivision A.

New subregulation 262AG (1) provides that a foreign aircraft that is a turbine-powered commercial aeroplane must not fly into Australian territory during a particular flight unless, when the flight began, it was fitted with an approved TCAS II that was serviceable.

New subregulation 262AG (2) provides that such an aircraft must not begin a flight in Australian territory unless it is fitted with an approved TCAS II that is serviceable. The requirement applies to beginning a flight and does not require the aircraft to land if its TCAS II becomes unserviceable during the flight.

New subregulation 262AG (3) provides that the requirement in subregulation 262AG (2) does not apply if the flight is for the purpose of moving the aircraft to have its approved but unserviceable TCAS II repaired, removed, replaced or overhauled.

Under new regulation 262AH, it is the duty of the aircraft's pilot in command to take all reasonable steps to ensure that the aircraft's TCAS II is activated at all times during flight.

New regulations 262AI and 262AJ deal with the requirements for reporting flights without approved and serviceable TCAS II. Under new regulation 262AI, if a TCAS II in a foreign aircraft to which the new regulations apply becomes unserviceable while the aircraft is in flight in, or on a flight into, Australian territory, the pilot in command is required to inform Air Traffic Control of the unserviceability. Before beginning a flight in Australian territory in a foreign aircraft in circumstances covered by new subregulation 262AG (3), the pilot in command is required, under new regulation 262AJ to inform Air Traffic Control accordingly.

AIRBORNE COLLISION AVOIDANCE SYSTEM IN AUSTRALIA

REGULATION IMPACT STATEMENT (RIS)

CIVIL AVIATION SAFETY AUTHORITY

Introduction

The Civil Aviation Safety Authority (CASA) has proposed legislation to require the carriage and operation of an Airborne Collision Avoidance System (ACAS) by all commercial turbine-powered transport aeroplanes certified to carry more than 30 passengers or with a Maximum Take Off Weight (MTOW) greater than 15000kg.

The project to introduce the new legislation was commenced in 1995. Legislative drafts are now in an advanced state of preparation, following substantial consultation with industry and the public, and the publication of both a Discussion Paper (issued April 1996) and a Legislative Instrument Proposal (LIP) (issued November 1996) on the subject. The LIP contained extracts from a cost-benefit analysis conducted by CASA, and a summary of industry and public responses to the Discussion Paper.

During 1997, the Australian Government decided through administrative decision that preparation of a Regulatory Impact Statement (RIS) is mandatory for all reviews of existing regulation and proposed new regulation which will directly affect business. In October 1997, the Industry Commission Office of Regulation Review issued the first edition of the publication "A Guide to Regulation", which sets out in detail the requirements of a RIS.

It is evident that in the case of the proposed ACAS legislation, all the requirements of a RIS have been met, even though the LIP process did not proceed along exactly the same lines as for the development of a RIS referred to in the "Guide to Regulation". This Regulatory Impact Statement summarises the contents of the ACAS LIP, which may be referred to for more detail if required.

PROBLEM

What is the problem being addressed?

A number of catastrophic mid-air collisions and close-proximity incidents between aircraft have occurred worldwide during recent years, and continue to occur from time to time. The International Civil Aviation Organization (ICAO) have recommended a global mandate for installation of airborne collision avoidance systems (ACAS) to commercial turbine-powered transport aeroplanes. ACAS is equipment fitted to an aircraft which can mitigate against a breakdown of normal aircraft separation standards and assist the pilot to avoid a collision.

In Australia, the Bureau of Air Safety (BASI) have recommended that CASA mandate the fitment of ACAS to Regular Public Transport (RPT) aeroplanes operating in Australian airspace.

Why is government action needed to correct the problem?

Under the Civil Aviation Regulations, CASA is charged with the responsibility of ensuring, as far as practicable, the safety of aircraft operations in Australia. There is a substantial body of legislation already in place which ensures that aircraft equipment meets appropriate standards. The standard of aircraft equipment has a direct bearing on safety and, in consequence, it cannot be left to operators to voluntarily comply with new standards which have been developed in the interests of safety.

OBJECTIVES

What are the objectives of government action?

The objectives sought in amending legislation along the lines proposed in the ACAS LIP are to:

*       reduce the risk of mid-air collisions involving aircraft conducting air transport operations; and

*       as far as is practicable, harmonise Australian standards and recommended practices on mitigation of mid-air collision risk with the standards and recommended practices of other leading aviation nations and ICAO.

Is there a regulation/policy in place?

No. The proposed ACAS legislation is new legislation.

OPTIONS

Which regulatory and non-regulatory options (including quasi - regulation) for dealing with the problem are being considered?

Following analysis of responses to the LIP, and to align the proposed legislation with international requirements, the original proposal has been amended to require turboproppowered transport aeroplanes with more than 30 passenger seats or above 15000kg MTOW to equip with TCAS II instead of TCAS I. TCAS II provides a pilot with advice on how to avoid aircraft which the TCAS has identified as a threat, while TCAS I only advises the position of aircraft which may become a threat.

An upgrade of the TCAS Software, known. as Change 7.0, is expected to become available during 1999. Change 7.0 will ensure that TCAS II complies with the requirements of ICAO in respect of ACAS performance. Aircraft operators will be advised that the upgraded software will be required when it becomes available. Change 7.0 could be introduced by means of an Airworthiness Directive or by additional legislation.

The ACAS LIP, Executive Summary, pages vii and viii, contains further detail.

Identify broad constraints which may make some options not viable.

Other options considered included the following:

ADS-B. ADS-B is based on satellite data-link processes. It has the potential to enhance traffic management and reduce TCAS alerts. However, its dependency on satellite data render it unsuitable as a collision avoidance system, which by international agreement is required to be independent of any other system. Furthermore, ADSB is not yet a mature enough system to meet the present need for collision avoidance equipment.

TCAD (Traffic Conflict Alerting Device). TCAD is a relatively cheap aircraft system which can simply provide a warning that other aircraft are in the immediate vicinity. It requires the provision of a ground-based radar repeater station and has not been widely accepted internationally as a viable alternative to TCAS.

Improvements in Air Traffic Control Technology. Although a number of initiatives' are in progress which will enhance the ability of ATC radar operators to anticipate and reduce the chance of traffic conflicts, none of these improvements can guarantee that such conflicts will not occur. TCAS is intended as a last line of defence against a failure of the ATC system.

The ACAS LIP, Part A, para 6, pages 11 and 12, discusses these and other issues in greater detail.

IMPACT ANALYSIS

No Trade Impact Assessment is required, as there is no bearing on export performance.

A detailed benefit-cost analysis was conducted by CASA, relevant extracts from which may be found in the ACAS LIP, Part A, Appendix A - "TCAS BENEFIT: COST ANALYSIS IN RESPECT OF REGULAR PUBLIC TRANSPORT (RPT) OPERATIONS IN AUSTRALIA". The analysis showed that fitment of TCAS II for aeroplanes with more than 30 passenger seats or above 15000kg would be cost-beneficial. Further studies are currently being undertaken with regard to the benefits and costs of requiring smaller aeroplanes to be fitted with TCAS.

CONSULTATION

As previously stated, there has been substantial consultation with industry and the public through the publication of both a Discussion Paper (issued April 1996) and a Legislative Instrument Proposal (LIP) (issued November 1996). Responses to the discussion paper were analysed and taken into account when formulating the regulatory proposals. Part B of the ACAS LIP - "SUMMARY OF RESPONSES TO THE ACAS DISCUSSION PAPER" -analyses the responses in detail.

The responses showed that there is general industry and public agreement that the proposed ACAS requirements should be adopted by Australia.

In addition, CASA has been represented at a number of international forums convened to discuss ACAS issues. In September 1997, Australia was represented at the ICAO AsiaPacific Air Navigation Planning and Implementation Regional Group (APANPIRG), where an agreement to implement mandatory ACAS requirements by States in the Asia-Pacific Region effective 1 January 2000 was endorsed.

CONCLUSION AND RECOMMENDED OPTION

After careful analysis and industry consultation, CASA has concluded that the mandatory fitment of TCAS II to turbine-powered commercial transport aeroplanes with more than 30 passenger seats or above 15,000 kg MTOW can be shown to be cost beneficial and will:

*       reduce the risk of mid-air collisions involving aircraft conducting air transport operations; and

*       harmonise Australian standards and recommended practices on mitigation of mid-air collision risk with the standards and recommended practices of other leading aviation nations and ICAO.

CASA therefore proposes changes to the regulatory requirements relating to the provision of equipment to require that on and after 1 January 2000, all turbinepowered commercial transport aeroplanes with more than 30 passenger seats, or above 15,000kg MTOW must be fitted with approved, serviceable and operating TCAS II equipment.

Insufficient data is currently available on which to base a decision to mandate ACAS for smaller aircraft. CASA intends to conduct further cost-benefit studies and review the issues to determine whether further regulation is warranted.

The ACAS LIP, Part A, paras 7 and 8, pages 12 to 14, contains more detailed explanations.

IMPLEMENTATION AND REVIEW

Implementation of the proposed ACAS requirements has already been voluntarily commenced by Qantas and Ansett, with other regional airlines also indicating that they are in the process of planning for compliance.

Enforcement of the new regulation will be through the normal processes by which CASA inspects and reviews aircraft operations in Australia.

The Bureau of Air Safety Investigation currently maintains a database of all TCAS events occurring in Australian airspace. Through the normal air safety reporting system, this process is expected to continue. CASA will continue to evaluate this information and monitor safety trends.

ACAS legislation is being introduced world-wide by many States. As the requirements for ACAS are not expected to alter significantly in the long term, there is no need to provide a sunset clause for the proposed legislation.

John Pike

Acting Director

29 May 1998