CASA EX37/21

Instrument number CASA EX82/21

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

CASA EX82/21 – Part 119 of CASR – Supplementary Exemptions and Directions Instrument 2021

Part 1 Preliminary, Definitions and Application

1 Name

This instrument is CASA EX82/21 – Part 119 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(b) is repealed at the end of 1 December 2024 (thereby, for paragraph 11.250 (a) of CASR, ceasing to be in force on and from the beginning of 2 December 2024).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 (air ambulance) operation has the same meaning as in regulation 202.405 of CASR.

ATPL is short for air transport pilot licence.

air operations has the same meaning as in subparagraph 28 (1) (b) (iv) of the Act.

Australian air transport operation has the meaning given by regulation 119.010 of CASR.

Australian air transport operator has the meaning given by subregulation 119.015 (2).

CAO means Civil Aviation Order.

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.

charter operations has the same meaning as it had in regulation 206 of CAR immediately before 2 December 2021.

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

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.

exposition content, for a safety system, means the exposition content required for the safety system under Part 119 of CASR, and under any applicable related requirements under Part 121, Part 133 and Part 135 of CASR.

FDAP is short for flight data analysis program.

HFP&NTS program means an Australian air transport operator’s program for training and assessing operational safety-critical personnel in human factors principles and non-technical skills.

high capacity aircraft has the meaning given by subsection 2 of CAO 82.0, as in force immediately before 2 December 2021.

HOFO is short for head of flying operations, and has the same meaning as in the Act.

HOTC is short for head of training and checking, and has the same meaning as the expression head of the training and checking part of an organisation has in subsection 28 (3) of the Act.

MOPSC is short for maximum operational passenger seat configuration.

MTOW is short for maximum take-off weight.

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

regular public transport operations has the same meaning as it had in regulation 206 of CAR immediately before 2 December 2021.

safety management system or SMS, for an Australian air transport operator, has the meaning given by the CASR Dictionary.

safety system means a safety system that is one of the following:

(a) an SMS, including its exposition content;

(b) an HFP&NTS program, including its exposition content;

scheduled air transport operation has the meaning given by the CASR Dictionary.

T&C is short for training and checking.

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 119 of CASR, the CASR Dictionary, and in the Act, as applicable; and

(b) mention of a provision with the prefix “119.” is a reference to that provision as contained in Part 119 of CASR.

(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, to the operator, and the pilot in command, of an aircraft to which Part 119 of CASR applies.

Part 2 Directions

5 Use of EFBs — direction

(1)In this section:

EFB is short for electronic flight bag, and means an information system for the flight crew members of an aircraft, that allows storing, updating, delivering, and displaying, with or without computing, digital data to support flight operations or flight duties on the aircraft.

relevant CAO means CAO 82.0, as in force immediately before 2 December 2021.

(2)Subject to subsection (4), an Australian air transport operator must not use an EFB in an operation for the first time unless CASA, in writing, has approved the use of the EFB by the operator and the aircraft’s flight crew.

(3) An Australian air transport operator must include in its exposition information, procedures and instructions in relation to:

(a) use of the EFB by the operator’s flight crew members; and

(b) management of the EFB, including access to it, and the security and updating of it; and

(4)Subsection (2) does not apply to an Australian air transport operator if, immediately before 2 December 2021, the operator was an AOC holder:

(a) authorised to conduct charter operations, regular public transport operations, or aerial work (air ambulance) operations; and

(b) in compliance with the requirements of paragraph 11.1 and Appendix 9 of the relevant CAO.

6 Operation of foreign-registered aircraft — direction

(1)An Australian air transport operator must not operate a foreign-registered aircraft (the relevant foreign aircraft) in an Australian air transport operation for the first time unless CASA, in writing, has approved the operator’s application to operate the aircraft in the operation.

(2)An Australian air transport operator approved in accordance with subsection (1) must not change the operation of the relevant foreign-registered aircraft (other than to cease operating the aircraft) unless CASA, in writing, has approved the operator’s application to change the operation of the aircraft.

(3)An application for a CASA approval under subsection (1) or (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 is the subject of, or included under, an agreement 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 Australian air transport operator, then the operator must not operate the aircraft outside that period of time.

(5) Subsections (1) to (4) of this section do not apply to an Australian air transport operator in relation to the operation of:

(a) an aircraft registered in New Zealand and operated under an Australian AOC with ANZA privileges; or

(b) an aircraft for the operation of which the operator holds a permission under section 27A of the Act.

Part 3 Exemptions and directions

7 Significant change of type or model of aircraft — exemption

(1)This section applies to an Australian air transport operator (the operator).

(2)The operator is exempted from compliance with the following provisions of CASR:

(a) subregulation 119.090 (1);

(b) subregulation 119.090 (4);

but only to the extent that the significant change is one described in subparagraph (a) (viii) of the definition of significant change in regulation 119.020.

(3)However, the exemptions in subsection (2) are subject to the condition that, for a change of the kind mentioned in subsection (4) or (5) (a relevant change), the operator must:

(a) apply in writing for CASA approval as if subregulation 119.090 (3) applied to the change; and

(b) obtain CASA’s approval in writing.

(4)For subsection (3), a relevant change means any change in relation to any of the following:

(a) the operator’s use of a multi-crew aircraft for which a legislative instrument, in accordance with paragraph 61.055 (1) (a) of CASR, has prescribed type ratings that may be granted for a multi-crew operation;

(b) the operator’s use of a type of aircraft for which single-pilot type ratings are required under paragraph 61.060 (1) (a) of CASR, for which a legislative instrument, in accordance with subparagraph 61.060 (1) (b) (i) of CASR, has prescribed the type ratings that may be granted for single-pilot operation;

(i) of a type mentioned in paragraph (a) or (b); and

(ii) for which the operator’s flight crew members require differences training;

(d) the operator’s use of a type of aircraft:

(i) that is covered by a class rating; and

(ii) for which initial type specific training and flight review are required.

(5)For subsection (3), a relevant change means the operator’s first use of any of the following in an Australian air transport operation:

(a) an aircraft covered by a class rating where the aircraft is the first aircraft of that class rating to be used by the operator for Australian air transport operations;

(b) a pressurised aircraft;

(d) an aeroplane that:

(i) is covered by a class rating; and

(ii) has an MOPSC > 9, or an MTOW > 8 618 kg;

(e) a rotorcraft that:

(i) is covered by a class rating; and

(ii) has an MTOW > 3 175 kg.

8 HOFO requirements — exemption

(1)In this section:

operator means an Australian air transport operator who, immediately before 2 December 2021, held an AOC, or was an early applicant for an AOC or an AOC variation, that:

(a) authorised the use of single-pilot type certificated aircraft for:

(i) charter operations; or

(ii) aerial work (air ambulance) operations; and

(b) did not authorise regular public transport operations.

(2)This section applies to a person (the relevant HOFO) who:

(a) on 2 December 2021 is the HOFO or the nominated HOFO (as the case requires) of an operator; and

(b) immediately before 2 December 2021 was the operator’s Chief Pilot or nominated Chief Pilot; and

(3)A relevant HOFO is exempted from the requirements of:

(a) paragraph 119.135 (1) (a); and

(b) subregulation 119.135 (2).

(4) The exemptions under subsection (3) are subject to the condition that the HOFO must meet the requirements set out in subclause 4.3 in Appendix 1 of CAO 82.0, as in force immediately before 2 December 2021, as if:

(a) subclause 4.3 continued to apply; and

(b) the HOFO were a Chief Pilot; and

(5) This section ceases to have effect on the earliest of the following:

(a) the end of 1 March 2023;

(b) the day on which the operator commences scheduled air transport operations;

9 HOFO requirements — directions

(1)This section applies to an operator mentioned in section 8.

(2)The operator must ensure that the HOFO complies with the requirements under subsection 8 (4).

(3)If the operator intends that when the exemptions under section 8 cease to have effect, the HOFO to whom they applied will continue to be the operator’s HOFO, then, before that ceasing to have effect, the operator must give CASA the operator’s exposition content in relation to the HOFO’s compliance with the requirements of:

(a) paragraph 119.135 (1) (a); and

(b) subregulation 119.135 (2).

(4) If the operator intends to nominate a new person to be the HOFO for the period after the exemptions under section 8 cease to have effect, then before that ceasing to have effect the following must be approved in writing by CASA:

(a) the nomination of the person;

(b) the operator’s exposition content in relation to the person’s compliance with the requirements of paragraph 119.135 (1) (a) and subregulation 119.135 (2) (the relevant requirements).

(5) The operator must not commence scheduled air transport operations until CASA, in writing, approves the operator’s exposition content in relation to the HOFO’s compliance with the relevant requirements.

10 HOTC requirements — exemption

(1)In this section:

operator means an Australian air transport operator who, immediately before 2 December 2021:

(a) held an AOC, or was an early applicant for an AOC or an AOC variation, that authorised the use of single-pilot type certificated aircraft for one or more of the following:

(i) charter operations, or aerial work (air ambulance) operations, in other than high capacity aircraft;

(ii) regular public transport operations in other than high capacity aircraft; and

(b) was not required by subsection 8 of CAO 82.3, as in force immediately before 2 December 2021, to use 2 pilots for an operation under the AOC before 2 December 2021.

(2)This section applies to a person (the relevant HOTC) who:

(a) on 2 December 2021 is the HOTC or the nominated HOTC (as the case requires) of an operator; and

(b) immediately before 2 December 2021:

(i) was the operator’s Chief Pilot; and

(ii) did not hold an ATPL.

(3)A relevant HOTC is exempted from the requirements of:

(a) paragraph 119.145 (1) (a); and

(b) subregulation 119.145 (2).

(4)The exemptions under subsection (3) are subject to the condition that the HOTC must meet the requirements set out in subclause 4.3 in Appendix 1 of CAO 82.0, as in force immediately before 2 December 2021, as if:

(a) subclause 4.3 continued to apply; and

(b) the HOTC were the Chief Pilot; and

(5)This section ceases to have effect on the earliest of the following:

(a) the end of 1 March 2023;

(b) the day the operator commences scheduled air transport operations in:

(i) a high capacity aircraft; or

(ii) an aircraft, other than a high capacity aircraft, that would have triggered a requirement for 2 pilots under subsection 8 of CAO 82.3, as in force immediately before 2 December 2021, as if it were in force;

11 HOTC requirements — directions

(1)This section applies to an operator mentioned in section 10.

(2)The operator must ensure that the HOTC complies with the requirements under subsection 10 (4).

(3)If the operator intends that, when the exemptions under section 10 cease to have effect, the HOTC to whom they applied will continue to be the operator’s HOTC, then, before that ceasing to have effect, the operator must give CASA the operator’s exposition content in relation to the HOTC’s compliance with the requirements of:

(a) paragraph 119.145 (1) (a); and

(b) subregulation 119.145 (2).

(4) If the operator intends to nominate a new person to be the HOTC for the period after the exemptions under section 10 cease to have effect, then before that ceasing to have effect the following must be approved in writing by CASA:

(a) the nomination of the person;

(b) the operator’s exposition content in relation to the person’s compliance with the requirements of paragraph 119.145 (1) (a) and subregulation 119.145 (2) (the relevant requirements).

(5) The operator must not commence scheduled air transport operations of the kind mentioned in paragraph 10 (5) (b) until CASA, in writing, approves the operator’s exposition content in relation to the HOTC’s compliance with the relevant requirements.

12 HOTC experience requirements — exemption

(1)This section applies to the HOTC of an Australian air transport operator (the operator).

(2)The HOTC is exempted from compliance with:

(a) paragraph 119.145 (3) (b); and

(b) subregulation 119.145 (4).

(3)The exemptions in subsection (2) are subject to the condition that the HOTC must have at least the following minimum experience:

(a) at least 300 hours flight time conducting training in a type of aeroplane or rotorcraft that is the same as, or substantially similar to, a type of aeroplane or rotorcraft used to conduct a significant proportion of the operator’s Australian air transport operations;

(b) at least 6 months’ experience in the conduct or management of air operations.

(4)To avoid doubt, nothing in this section affects CASA’s power, under regulation 119.105, to direct the operator to change its exposition to include instructions requiring the HOTC to have more than the minimum experience provided for under subsection (3).

13 HOTC experience requirements — direction

(1)This section applies to an operator mentioned in section 12 in relation to a HOTC mentioned in section 12.

(2)The operator must ensure that the HOTC complies with the requirements under subsection 12 (3).

14 Training and checking for operational safety-critical personnel — exemption

(1)This section applies to an Australian air transport operator (the operator) to whom subregulation 119.170 (5) applies.

(2)The operator is exempted from compliance with subregulation 119.170 (4), but only in relation to operational safety-critical personnel (a relevant person) who are not any of the following:

(a) flight crew members;

(b) cabin crew members;

(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 relevant person:

(i) is competent to carry out the 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.

15 Training and checking for operational safety-critical personnel — direction

(1)This section applies to an Australian air transport operator (the operator).

(2)The operator must comply with subsection (3) not later than the earlier of:

(a) 2 March 2023; and

(b) the day on and from which the operator ceases to take advantage of the exemption under section 14.

(3)The operator must include in its exposition information, procedures and instructions on how its training and checking system will comply with subregulation 119.170 (4) in relation to each of its operational safety-critical personnel who is not a flight crew member, a cabin crew member, or another crew member who has duties on board an aircraft for the flying or safety of the aircraft.

16 Authorised persons acting in the absence of key personnel — exemption

(1)This section applies to an Australian air transport operator (the operator).

(2)The operator is exempted from compliance with subparagraph 119.205 (1) (e) (iv) unless the operator chooses to name in the exposition a person who is authorised to carry out the responsibilities of a key person when the position holder is absent from the position, or cannot carry out the responsibilities of the position.

17 Safety systems — direction

(1) This section applies to an Australian air transport operator (the operator) who:

(a) immediately before 2 December 2021:

(i) conducted charter operations, or aerial work (air ambulance) operations (the operations); and

(ii) was not required under the civil aviation legislation, as in force immediately before 2 December 2021, to have a safety system for the operations; and

(b) on or after 2 December 2021, changes their operations to include a safety system for the first time (changed operations).

(2) The operator must not commence changed operations:

(a) using the relevant safety system exposition content; or

(b) using any key personnel named or nominated by the operator for the safety system (relevant key personnel);

until the day CASA’s written approval of the following takes effect:

(d) the relevant key personnel.

(3) For approval under subsection (2), the operator must apply in writing as if the changed operations were a significant change within the meaning of that expression in paragraph 119.020 (1) (c).

18 FDAP — exemption

(1)This section applies to an Australian air transport operator (the operator) to whom, on and after 2 December 2021, regulation 119.195 otherwise applies.

(2)The operator is exempted from paragraph 119.195 (3) (d).

(3)It is a condition of the exemption in subsection (2) that the operator must comply with the following provisions of CAO 82.5, as in force immediately before 2 December 2021, as if they applied to the operator as they relate to operational flight data for FDAP purposes:

(a) subparagraphs 2A.2 (f), (g) and (h);

(b) subparagraphs 2A.3 (d) and (e);

(d) Appendix 1A.

(4) The exemption under subsection 2 cease to have effect at the end of 1 December 2024.

Note See also Part 11 of CASA EX87/21 – Flight Operations Regulations – SMS, HFP&NTS, and T&C Systems – Supplementary Exemptions and Directions Instrument 2021. Under this instrument, an Australian air transport operator who, immediately before 2 December 2021, was not required to have an FDAP, is exempted from the Part 119 FDAP requirement for a period of up to 3 years, depending on circumstances mentioned in section 54 of the instrument.

19 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 operator’s approved SMS or FDAP, including personal information relating to individuals.

(2)Without affecting section 18, this section applies to an Australian air transport operator (the operator) for Australian air transport operations (the operations) if the operator:

(a) is required to have one or both of the following for the operations:

(i) an SMS under regulation 119.190;

(ii) an FDAP under regulation 119.195; 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 CAO 82.5, as in force immediately before 2 December 2021, as if they applied to the operator as they relate to any safety information arising from the operations:

(a) subparagraphs 2A.2 (f), (g) and (h);

(b) subparagraphs 2A.3 (d) and (e);

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) Appendix 1A.

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