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CIVIL AVIATION SAFETY AMENDMENT REGULATIONS 2005 (NO. 2) (SLI NO 323 OF 2005)
EXPLANATORY STATEMENT
Select Legislative Instrument 2005 No. 323
Issued under the authority of the Minister for Transport and Regional Services
Civil Aviation Safety Amendment Regulations 2005 (No. 2)
Subsection 98(1) of the Civil Aviation Act 1988 (the Act) provides, in part, that the Governor-General may make regulations, not inconsistent with the Act, prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act. That subsection also provides that the Governor-General may make regulations in relation to the safety of air navigation, being regulations with respect to any other matters with respect to which the Parliament has power to make laws.
Subsection 9(1) of the Act specifies, in part, that the Civil Aviation Safety Authority (CASA) has the function of conducting the safety regulation of civil air operations in Australian territory by means that include developing and promulgating appropriate, clear and concise aviation safety standards and issuing certificates, licences, registrations and permits.
The Regulations amend the Civil Aviation Safety Regulations 1998 (CASR) to introduce new Part 91 – General Operating and Flight Rules, and specifically to introduce new Subparts within Part 91 in order to provide a comprehensive and structured regulatory system for all Australian issued navigation authorisations.
A navigation authorisation is an authorisation granted to an Australian operator by CASA certifying that the operator is qualified to operate a specified aircraft in a specific aircraft operation, that is, in airspace where a specific navigation requirement applies.
CASA does not have a consistent method for issuing navigation authorisations. Some Australian approvals processes have been developed over time and, as such, have not been incorporated into a proper regulatory framework. As amendments to the Aeronautical Information Publication (AIP) are frequent and relatively easy to make, changes in technical requirements for some approvals have been included in the AIP rather than in regulations or manuals of standards. This has lead to a disjointed approach to issuing navigation authorisations.
The Regulations specifically provide a regulatory basis for issuing authorisations for Required Navigation Performance (RNP) operations. RNP is an ICAO concept that is being used by States to implement uniform navigation standards throughout the world, thereby increasing airspace safety and efficiency. For the concept to be successfully implemented worldwide, States need to adopt the requirements of ICAO Annex 6 – Operation of Aircraft, and the relevant ICAO standards for navigation authorisations in their legislation. Australia has chosen to do this.
Specifically, the Regulations establish:
· Who can get a navigation authorisation from CASA;
· Where and how navigation authorisations can be used;
· The operational (flight planning) requirements relating to navigation authorisations;
· Where the standards relating to the navigation authorisations are promulgated (Manual of Standards);
· The administrative procedures to be followed by CASA and an applicant for a navigation authorisation;
· The information that must be provided by an applicant in an application and in an authorisation issued by CASA;
· The standards, by reference to a MOS for Part 91, for: aircraft equipment; flight crew training; aircraft continuing airworthiness; operating procedures to be followed by the flight crew; and the reporting of navigation and system errors;
· Rules governing any conditions that may be placed on a navigation authorisation, such navigation limitations because of the type of equipment fitted;
· Rules concerning the period of validity of the authorisation; and
· Rules governing changes to the authorisation as a result of the operator ceasing to operate the aircraft.
The Regulations also provide for detailed technical, training, operating and monitoring standards and requirements to be contained in a Manual of Standards (MOS). Such standards and requirements have been developed through the International Civil Aviation Organization (ICAO) which promotes the application of uniform standards throughout the world, clearly identifies the requirements, and reduces the regulatory/approval workload for States and, hence, aids safety. The MOS Subpart 91.U will be issued under a CASA Miscellaneous Legislative Instrument signed by CASA’s CEO to coincide with the commencement of the Regulations.
The Regulations also make editorial changes of a ‘housekeeping nature’ to CASR that updates the ‘Readers Guide’, rectifies incorrect references and replaces the reference to the Acts Interpretation Act 1901 with the Legislative Instruments Act 2003 following the commencement of the Legislative Instruments Act 2003 in January 2005.
For the purposes of consultation, CASA published Notice of Proposed Rule Making (NPRM) 0405AS on 14 July 2004 that proposed the issue of Civil Aviation Safety Regulation (CASR) Subpart 91.U covering Navigation Certificates. The period for public comment on the proposals contained in this NPRM closed on 22 September 2004. The NPRM introduced, and invited consultation on, a proposal to put in place a comprehensive regulatory system within CASR Part 91. It proposed a new regulatory framework for issuing navigation approvals to Australian operators, and in particular, for two specific navigation approvals – Required Navigation Performance 4 (RNP 4) and RNP 10.
The NPRM described how the new regulatory framework would consolidate existing approvals and give all navigation approvals a firm legal basis. Further, it stated that the legislation would provide a transparent RNP approval process, clear technical and operational standards, improved operational safety and enable the benefits offered by reductions in separation minima to be realised for Australian operators.
CASA received three responses to the NPRM. None of the respondents commented on the specific proposals contained in the NPRM. Two major Australian airline operators raised a technical issue through another forum which were subsequently addressed separately in that particular forum. As is its usual practice, CASA’s response to the comments received is set out in its Notice of Final Rule Making (in this case NFRM 0405AS) which has been posted to the CASA website and made freely available to all respondents and interested stakeholders.
The Office of Regulation Review (ORR) was consulted on the nature and likely impact of the proposed regulations on industry and whether the proposals would require a Regulation Impact Statement (RIS). The ORR advised that no RIS was required because the proposal is implementing international ICAO requirements and did not impose any new technical requirements.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.
Details of the Regulations are attached.
ATTACHMENT
Details of the Civil Aviation Safety Amendment Regulations 2005 (No. 2)
Regulation 1 - Name of Regulations
Regulation 1 names the Regulations as the Civil Aviation Safety Amendment Regulations 2005 (No. 2).
Regulation 2 - Commencement
Regulation 2 provides that the Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.
Regulation 3 - Amendment of Civil Aviation Safety Regulations 1998
Regulation 3 provides that Schedule 1 amends the Civil Aviation Safety Regulations 1998.
Item [1] – Readers Guide, after paragraph 52
Item [1] inserts a new statement that a Manual of Standards (MOS) is a legislative instrument for the purposes of the Legislative Instruments Act 2003, and that the MOS must be registered and made publicly available.
Item [2] inserts new information on how to seek changes to the regulations or a MOS. It updates information on the contact points in CASA to reflect organisational change and makes reference to amending regulations as drafted by the Office of Legislative Drafting and Publishing (OLDP) of the Commonwealth Attorney-General’s Department. The new information includes a statement that a MOS is a legislative instrument and that it must be registered and tabled, and is subject to disallowance in the same way as regulations. The new information also sets out the requirements on OLDP and CASA to provide a compilation of amendments to the regulations or a MOS, and that the compilation is placed on the Federal Register of Legislative Instruments.
Item [3] substitutes the Note to replace the reference to the Acts Interpretation Act 1901 with a reference to the Legislative Instruments Act 2003. Also, it amends the timeframe that the instrument must be tabled in both Houses of Parliament from within 15 sitting days to within 6 sitting days after the making of the instrument.
Item [4] substitutes Note 2 to replace the reference to the Acts Interpretation Act 1901 with a reference to the Legislative Instruments Act 2003. Also, it amends the timeframe that the instrument must be tabled in both Houses of Parliament from within 15 sitting days to within 6 sitting days after its making.
Item [5] substitutes the Note to replace the reference to the Acts Interpretation Act 1901 (AIA) with a reference to the Legislative Instruments Act 2003 (LIA). It also replaces reference to section 48 of the AIA with reference to section 12 of the LIA.
Item [6] substitutes Note 1 to replace the term ‘disallowable instrument’ with the term ‘legislative instrument’ and replaces the reference to the Acts Interpretation Act 1901 with reference to the Legislative Instruments Act 2003. Also, it states that the instrument must be tabled in both Houses of Parliament within 6 sitting days after the making of the instrument.
Item [7] substitutes the Note to replace the term ‘disallowable instrument’ with the term ‘legislative instrument’ and replaces the reference to the Acts Interpretation Act 1901 with reference to the Legislative Instruments Act 2003.
Item [8] replaces the two existing Notes with a Note that accurately reflects the MOS is a disallowable instrument that is subject to the Legislative Instruments Act 2003.
Item [9] substitutes the Note to replace the reference to subregulation 201.002 (2) with a reference to paragraph 11.260 (2) (b) because subregulation 201.002 (2) has been omitted by SR 2004 No. 345.
Item [10] substitutes the Note to replace the reference to subregulation 201.002 (2) with a reference to paragraph 11.260 (2) (b) because subregulation 201.002 (2) has been omitted by SR 2004 No. 345.
Item [11] substitutes the Note to replace the reference to subregulation 201.002 (2) with a reference to paragraph 11.260 (2) (b) because subregulation 201.002 (2) has been omitted by SR 2004 No. 345.
Item [12] substitutes the Note to replace the superseded reference to the title of Part 200 ‘Exemptions’ with the revised title for Part 200 ‘Aircraft to which CASR do not apply’.
Item [13] – Subregulation 39.001 (5), except the note
Item [13] replaces the subregulation 39.001(5) reference to the Acts Interpretation Act 1901 with the correct reference to the Legislative Instruments Act 2003.
Item [14] – Subregulation 65.033 (1), note
Item [14] substitutes the Note to replace the term ‘disallowable instrument’ with the term ‘legislative instrument’ and would replace the reference to the Acts Interpretation Act 1901 with reference to the Legislative Instruments Act 2003. Also, it would state that the instrument must be tabled in both Houses of Parliament within 6 sitting days after the making of the instrument.
Item [15] introduces Part 91 – General Operating and Flight Rules, and specifically introduces Subparts 91.A, 91.D, and 91.U.
Note This Part is made up as follows:
The Note provides the table of contents for Part 91.
Regulation 91.005 establishes Part 91 proper for the purposes of enabling new regulations concerning navigation authorisations to be made. In this case, the regulations apply to Australian civil aircraft operating in or outside Australian territory and foreign registered civil aircraft operating in to or out of Australian territory.
Regulation 91.830 is reserved for future use.
Subregulation 91.850 (1) sets out the requirements for RNP operations and establishes that an offence against subregulation (1) is an offence of strict liability. The requirements relate to flight plan notification.
A penalty of 25 penalty units applies for non-compliance with the subregulation. One penalty unit is currently set at $110 under the Crimes Act 1914.
Subregulation 91.850 (2) provides an explanation of ‘RNP operation’. RNP operations are those operations for which the airspace or air route design or aircraft separation minima are based on an RNP type. The RNP type is specified by a State or air traffic service provider, and refers to the accuracy, expressed in nautical miles, with which the aircraft is expected to navigate for 95 percent of the total flight time. The RNP type for which the aircraft and flight crew has been authorised by CASA or another competent authority is shown on a flight plan.
Regulation 91.865 is reserved for future use.
Regulation 91.870 is reserved for future use.
Regulation 91.875 is reserved for future use.
Regulation 91.880 is reserved for future use.
Regulation 91.885 is reserved for future use.
Regulation 91.890 is reserved for future use.
Regulation 91.5000 provides that Subpart 91.U only applies to navigation authorisations held by Australian operators and specifies the matters that are dealt with in Subpart 91.U.
Regulation 91.5005 provides definitions of terms: Australian operator, MOS Subpart 91.U, and provides a definition of, and the types of navigation authorisations that are used in the Subpart.
Regulation 91.5010 empowers the Civil Aviation Safety Authority (CASA) to issue a Manual of Standards (MOS) setting out the requirements and standards in relation to navigation authorisations.
The requirements and standards cover aircraft equipment requirements, flight crew training requirements, aircraft continuing airworthiness and reporting of navigation or system errors. The standards for RNP operations were developed by States and accepted by the International Civil Aviation Organization (ICAO) for worldwide application.
The two Notes following the regulation provide general advice on the MOS being a legislative instrument under the Legislative Instruments Act 2003 and refers the reader to Part 11 regarding procedures on issuing, amending and revoking a MOS.
Regulation 91.5015 provides that a navigation authorisation remains in force indefinitely unless it is cancelled. An authorisation will not be in force during any period of suspension.
Regulation 91.5020 provides that the holder of a navigation authorisation must not contravene a condition of the authorisation.
A penalty of 25 penalty units applies for non-compliance with the regulation. The offence is an offence of strict liability.
Subregulation 91.5025 (1) requires an operator to notify CASA within 14 days after ceasing to operate an aircraft covered by the navigation authorisation. This requirement allows CASA to maintain accurate information on authorised aircraft and operators so that airspace safety can be maintained.
A penalty of 5 penalty units applies for non-compliance with the subregulation.
Subregulation 91.5025 (2) provides that an offence against subregulation (1) is an offence of strict liability.
Subregulations 91.5025 (3), (4) and (5) sets out the administrative procedures to be followed and information to be provided by CASA after receiving a notice of removal of an aircraft from the authorisation under subregulation 91.5025(1).
Regulation 91.5030 provides that when an aircraft is given a new registration mark, then a reference in a navigation authorisation to the old registration mark is taken to be a reference to the new registration mark. This reduces the administrative burden on CASA and an operator by not requiring a new authorisation to be issued every time an aircraft changes its registration mark.
Division 91.U.2 is reserved for future use.
Division 91.U.3 is reserved for future use.
Regulation 91.5150 lists the RNP types to be covered by the authorisation process. At present, RNP navigation authorisations only cover RNP 4 and RNP 10. The meaning of RNP type has been covered in the explanation for regulation 91.850.
Subregulation 91.5155 (1) establishes what an RNP operational authorisation means and what it entitles the holder of the authorisation to do. The authorisation certifies that the operator is qualified to undertake RNP operations using aircraft specified on the authorisation. RNP operations have been described in the notes on proposed regulation 91.850 (2).
Subregulations 91.5155 (2) and (3) provides that an Australian operator may apply to CASA for a navigation authorisation and sets out how the application is to be made and what areas it is to address. The details of the technical areas to be addressed in the application are set out in the MOS for Subpart 91.U.
Regulation 91.5160 provides that an applicant for a RNP authorisation must show that the relevant aircraft are equipped in accordance with the standards set out in MOS Subpart 91.U and that the applicant is able to comply with any conditions in the RNP authorisation.
Regulation 91.5165 sets out the information that CASA is to provide in the authorisation that it grants to an operator. This information includes details of the name of the operator, when the authorisation comes into force, the registration mark and serial number of the aircraft, the RNP types covered by the authorisation, and any conditions that CASA imposed on the authorisation. For example, some aircraft, because of the type of navigation systems fitted, can only operate to a particular navigation accuracy for a period of time. The authorisation specifies that time limitation as a condition.
Regulation 91.5170 sets out the conditions under which the operator can use the navigation authorisation. The conditions specified in the regulation require that the operator: (a) to have and comply with a continued airworthiness program for the aircraft included on the authorisation; (b) to have a training program for the flight crew that addresses the standards set out in the MOS; (c) to have operating procedures for operating aircraft in airspace where RNP is specified; and (d) or the pilot in command to report to CASA any navigation or system errors. These are in addition to any conditions imposed by, or under Part 11.
Division 91.U.5 is reserved for future use.
Division 91.U.6 is reserved for future use.
Division 91.U.7 is reserved for future use.
Division 91.U.8 is reserved for future use.
Division 91.U.9 is reserved for future use.
Division 91.U.10 is reserved for future use.
Items [16], [17], [18], and [19] make editorial amendments to the Notes following subregulations 139.712(1), 143.017(1), 171.017(1) and 172.022(1) that replaces the reference to the Acts Interpretation Act 1901 to now reference the Legislative Instruments Act 2003.
Item [20] inserts a new definition for the Aeronautical Information Publication (AIP) which is published by the Aeronautical Information Service within Airservices Australia. The AIP is issued to provide operational information, advice and guidance to Australian pilots.