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Notification of Making of Civil Aviation Safety Amendment Regulations to CASR Part 39 - Airworthiness Directives

Civil Aviation Safety Amendment Regulations 2004 (No. 2)
Statutory Rules 2004 No. 230

Issued under the authority of the Minister for Transport and Regional Services

Civil Aviation Safety Amendment Regulations 2004 (No.2) (42kb)
Attachment - Details of the amending Regulations (26kb)

Explanatory Statement

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, and regulations in relation to safety of air navigation, being regulations with respect to 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 rectify a number of deficiencies found following the implementation of Part 39 of the Civil Aviation Safety Regulations1998 (CASR). CASR Part 39 deals with Airworthiness Directives (ADs), which are binding directions issued by CASA to aircraft owners to undertake maintenance or airworthiness-related tasks to ensure aviation safety.

CASR Part 39 commenced on 1 January 2000. The Part covers the requirements for the issue of ADs and replaced provisions in the Civil Aviation Regulations 1988 on the same subject matter. In general CASR Part 39 harmonised with Part 39 of the Federal Aviation Regulations (FAR) of the United States.

Since the introduction of Part 39, a number of problems had arisen in relation to the:

  • issue of special flight permits for aircraft affected by an AD;
  • requirements of an AD in relation to manufacturer’s documentation;
  • exclusion process and harmonisation of this process with other National Airworthiness Authorities (NAAs); and
  • responsibility for ensuring an AD is complied with.

Special Flight Permits

The current legislation for special flight permits, CASR 21.197, allows CASA or an authorised person to issue a special flight permit to a person for an aircraft, which cannot meet applicable airworthiness requirements and hence would otherwise be grounded. Regulation 39.003 prohibits the operation of an aircraft if an AD has not been carried out.

The Regulations clarify the interaction between CASRs 21.197 and 39.003, by expressly providing that a special flight permit can be issued for an aircraft subject to an AD, e.g. so that an aircraft can fly to a base where the requirements of the AD are to be performed, unless the specific AD states that a special flight permit must not be issued because of the critical safety condition. The Regulations also made changes to CASR Part 21 consequential to the changes to CASR Part 39.

Service Bulletins referenced as requirement documents in ADs

Currently many ADs issued by CASA require compliance with the manufacturer’s documentation, such as a service bulletin (SB). These are generally stated in the AD to be at a certain issue status, i.e. the date/issue number of the SB. Many National Airworthiness Authorities (NAAs) do not need to amend their ADs to reflect the latest issue of the SB as they have a regulatory framework in place that allows the latest issue of the SB to be compliant with the AD. That is, the NAA of a foreign country can require compliance, under an AD, with the manufacturer’s documentation as published from time to time, while the current CASR Part 39 legislation does not provide CASA with the same flexibility. CASA is currently constrained, by the interaction of CASR 39.001 with section 49A of the Acts Interpretation Act 1901, to issuing ADs which mandate compliance with manufacturers’ documentation as published at a particular time.

The Regulations allow CASA to write and issue ADs which incorporate manufacturers’ documentation as published from time to time.


CASA is empowered, under CASR 39.004, to grant an exclusion to a person from compliance with an AD. The current CASR 39.004 provides that an exclusion can only be granted on the basis that the person granted the exclusion has an alternative method for correcting the unsafe condition that the AD seeks to correct. This does not enable CASA to issue an exclusion to a person which does not correct the unsafe condition but merely extends the time in which the person has to comply with the AD.

The NAAs of foreign countries, such as the Federal Aviation Administration (FAA) of the United States, often permit an extension of the time to comply with an AD if other operational or maintenance conditions can be imposed on the exclusion which mitigate the risk of the unsafe condition for the period of time allowed by the exclusion. Because CASA cannot issue an exclusion which permits an extension of time for compliance with an AD (subject to conditions necessary to mitigate the risk in the meantime), problems have been caused when aircraft owners affected by the AD cannot source necessary aircraft components for compliance with the AD, e.g. because the component manufacturer is based overseas or has insufficient stores to cater for the sudden increase in demand as a result of the issue of the AD. On such occasions, affected aircraft face the prospect of being grounded until replacement parts become available, whereas foreign registered aircraft can operate under exclusions issued by the relevant NAAs which permit a greater time for compliance.

The Regulations rectify this anomaly so that an exclusion could defer the compliance time on submission of a satisfactory safety justification.

Also, CASR 39.004 (2) provides that CASA must not issue an exclusion unless CASA and the applicant agree with the action specified in the exclusion. However, experience has shown that this requirement adds no safety value and that many applicants for exclusions were signing the agreement on the application form prior to submitting the application.

The Regulations remove this requirement.

Responsibility for ensuring AD compliance

Currently CASR 39.003 (2) requires that the “registered owner” of an aircraft subject to an AD must not permit a person to operate the aircraft until the AD has been complied with. There is no definition for the term “registered owner” in the CASR; the appropriate term is “registration holder”.

The Regulations replace “registered owner” with “registration holder”. However, it is proposed, in future, to place this obligation on the operator of the aircraft rather than the person who holds the aircraft registration certificate, as the operator is the person who has day-to-day operational control of the aircraft (noting that the operator and registration holder can be the same person). This will occur when the concept of “registered operator” is introduced into the CASR under the proposed CASR Part 47 (Aircraft registration and related matters). At that time, it is proposed to change “registration holder” in CASR 39.003 (2) to “registered operator”.

Inclusion of European Aviation Safety Agency (EASA) as an NAA

CASR 39.001 (3) makes it clear that an AD issued by CASA can require compliance with a directive of a similar nature issued by the NAA of a foreign country. Furthermore, CASR 21.029A and CASR 21.114 allow CASA to recognise type certificates and supplemental type certificates issued by the NAA of a recognised country. The European Aviation Safety Agency (EASA) has recently been formed to carry out certain airworthiness functions on behalf of countries that belong to the European Union (EU). Members of the EU no longer individually carry out airworthiness functions such as issuing ADs, type certificates or supplemental type certificates.

The Regulations amend the Dictionary of the CASR to extend the meaning of NAA to include EASA insofar as EASA performs a function or task on behalf of the NAA of a foreign country (i.e. a NAA of a member state of the EU). This change allows CASA to recognise certificates, approvals, etc. issued by EASA when the CASR allow CASA to recognise certificates, approvals, etc. issued by the NAA of a foreign country. In particular, it allows CASA to issue an AD to require compliance with a directive issued by EASA, or to accept a type certificate or supplemental type certificate issued by EASA as a type certificate or supplemental type certificate issued by a recognised country.

The amendments to CASR Part 39:

  • clarify who is responsible for compliance with an AD;
  • enable the issue of a special flight permit so that aircraft can fly to a maintenance base to carry out the requirements of an AD;
  • allow an AD to be written to permit compliance with the latest instructions issued by the manufacturer of the aircraft or aeronautical product referred to in the AD; and
  • align the requirements for issuing exclusions to an AD with the same practices applied by the United States Federal Aviation Administration (FAA) and other national airworthiness authorities (NAAs).

The Regulations commenced on the date of their notification in the Gazette.

The Office of Regulation Review (ORR) has assessed that the regulations have only a minor impact on business and that the preparation of a Regulation Impact Statement (RIS) is not mandatory.