Proposed relocation of NVIS legislation into Parts 91, 133 and 138 Manuals of Standards - (CD 2109OS)

Overview

CASA is seeking comment on the proposed rules for using night vision imaging systems (NVIS), that will apply from 2 December 2021.

NVIS legislation currently resides in Civil Aviation Order (CAO) 82.6 and Instrument Number 288/07 and is supported by Civil Aviation Advisory Publication 174-01. In line with the movement of flight operations related Civil Aviation Regulations and CAO’s into the Civil Aviation Safety Regulations (CASRs) and Manuals of Standards (MOSs), CASA is relocating NVIS legislation into the CASR Part 91, Part 133 and Part 138 MOS's. This transition is to be completed prior to 2 December 2021, the commencement date of the new CASR Parts. The CAO would be repealed on this date.

In the 2018 consultation of CASR Part 91, CASA proposed that the current prohibition on the use of NVIS in private operations be removed, and that NVIS be able to be used in operations other than the current limited NVIS operations permitted by CAO 82.6 for situational awareness purposes (subject to conditions). That proposal was supported but only partially enacted in Chapter 3 of the existing version of the Part 91 MOS.

The policy intent of the proposed NVIS rules is to:

• carry across the existing rules (both operational, maintenance and NVG standards) of CAO 82.6 in a simplified and condensed manner
• ensure the NVIS rules do not apply to a person wearing NVIS on a flight who is not a flight crew member and is not involved in air navigation or terrain avoidance functions
• implement the full suite of safety controls appropriate to enable the use of NVIS for situational awareness purposes in private operations, aerial work operations conducted by persons who do not hold an aerial work certificate and Part 133 passenger and cargo transport operations (previously consulted)
• move the NVIS helicopter firebombing requirements of TMI 01/2017 into the Part 138 MOS
• move the current use of exemptions for NVIS aeroplane firebombing into a Part 138 approval (note that exemptions might still be required from Part 61 as aeroplane NVIS licensing and training rules do not yet exist in Australia)
  • CASA will continue to publish TMI 05/2019 as guidance to industry and CASA staff regarding expected standards to obtain this approval
  • CASA does not anticipate including permanent aeroplane NVIS firebombing standards into the Part 138 MOS until further operational experience is obtained during multiple fire seasons.

This consultation is also proposing that if an operator had not previously held an approval under the old CAO to conduct an NVIS flight, then beginning to use NVIS would require CASA's approval. In the short term, this is proposed to be implemented via a specific direction issued to Part 119, 138, 141 and 142 operators. At the next available regulation change opportunity, this change would be included as a mandatory significant change in paragraphs 119.020(a), 138.012(a), 141.025(a) and 142.030(a) of CASR.

An operator would only need further approval to start using NVIS during additional kinds of activities not mentioned in the initial application if, as a result of an operator’s risk assessment of these new activities, the overall level of aviation safety would decrease or be likely to decrease (see the wording of CASR paragraphs 119.020(b), 138.012(c), 141.025(c) and 142.030(c)).

Two defined terms – NVIS flight and NVIS operation – are fundamental to understanding how the proposed rules will work. A detailed explanation of these definitions can be found in the SPC document accompanying this consultation. In summary, an NVIS operation is a specialised subset of the broad term NVIS flight. Certain rules and alleviations only apply to NVIS operations and do not apply, or an alleviation is not available to, an NVIS flight that is not an NVIS operation. NVIS operations include, but are not limited to, Part 141/Part 142 training, flight testing or checking, Part 133 medical transport operations and Part 138 certificate holder operations. For example, NVIS operations are permitted to descend below the IFR and NVFR minimum heights and conduct approaches to a NVIS-HLS basic, whereas an NVIS flight that is not an NVIS operation cannot do these things.

The interrelationship between CASR Parts 91, 133 and 138 does result in some duplication across the 3 MOS's. This aspect of the regulatory structure cannot be changed at this time and would need to be the subject of future dedicated industry consultation, if such change was determined to be a priority for the industry. For this consultation, it is important that affected individuals understand when the rules contained in a particular MOS apply to a particular kind of flight. These interrelationships are explained in the ‘Key Changes’ section of the SPC document accompanying this consultation.

Impact on industry

There should be no adverse impact on industry resulting from these changes. However, there may be a need to amend some elements of existing operations manuals, subject to the policies related to existing operations manuals outlined in AC 1-03, which relate to the broader transition to the new flight operations regulations.

These changes are intended to move existing safety policies into the new CASR Part structure, whilst providing increased scope to use NVIS for situational awareness purposes as previously consulted.

Previous consultations

CASA held a Technical Working Group (TWG) on NVIS in March 2020, to focus on policy changes required prior to the transition of the NVIS legislation to the CASR's and MOS's. This TWG resulted in a significant amendment and re-issue of CAO 82.6 in October 2020. Two more NVIS TWG's were held in June and August 2021 to allow NVIS Operators to review and comment on the transitional legislation. These comments have been incorporated into the proposed rules that are the subject of this consultation.

Why your views matter

CASA recognises the valuable contribution community and industry consultations make to the policy decision-making process and future regulatory change. We are consulting to ensure that the proposed new rules are clearly articulated and will work in practice and as they are intended. Comments are sought from every sector of the community. This includes the general public, government agencies and all sectors of the aviation industry, whether as an aviator, aviation consumer and/or provider of related products and services.

This consultation seeks feedback on CD 2109OS which summarises the proposed relocation of NVIS Policy from CAO 82.6 into Parts 91, 133 and 138 MOSs and proposed changes to the NVIS permissions and constraints.

Your feedback will make a valuable contribution to our standards development and making process and help to inform any future regulatory change. 

Documents for review

All documents related to this consultation are attached in the ‘related’ section at the bottom of the page. They are:

• Summary of proposed change on CD 2109OS, which provides background and additional information on the proposed standards
• Proposed draft CASR Part 91, 133 and 138 MOS changes
• Civil Aviation Safety Amendment (Part 91) Regulations 2018 (F2020C00951)
• Civil Aviation Safety Amendment (Part 133) Regulations 2018 (F2021C00516)
• Civil Aviation Safety Amendment (Part 138) Regulations 2018 (F2020C00978)
• Civil Aviation Safety Amendment (Operations Definitions) Regulations 2019 (F2020C00958)
• Part 91 (General Operating and Flight Rules) Manual of Standards 2020 (F2020L01514)
• Part 133 (Australian Air Transport Operations—Rotorcraft) Manual of Standards 2020 (F2020L01614)
• Part 138 (Aerial Work Operations) Manual of Standards 2020 (F2020L01402)
• Unofficial consolidated CASR Dictionary – (combines the official CASR Dictionary and the official amendment regulation incorporating the operations definitions)
• MS Word copy of online consultation for ease of distribution and feedback within your organisation. 

Note: The MS Word document is not to be used as an emailed submission, unless there are extenuating circumstances, and this form of submission has been agreed to by the consultation project lead.

CASA highly recommends the use of the ‘unofficial consolidated CASR dictionary’. Some minor differences exist between this document and the ‘Operations Definitions’ regulation however these are isolated to the sport and recreation sectors and do not affect any of the content of this proposed MOS.

Comments on CD 2109OS should be submitted through the online response form.

What happens next

At the end of the response period for public comment, we will review each comment and submission received. We will make all submissions publicly available on the CASA website, unless you request your submission remain confidential. We will also publish a Summary of Consultation which summarises the feedback received, outlines any intended changes and details our plans for the regulation.

All comments on CD 2109OS consultation will be considered. Relevant feedback that improves upon the proposed regulations and is consistent with the regulations and other CASA policy, will be incorporated into the final ruling.

Post-implementation review

CASA will monitor and review the new rules during the transition phase and on an ongoing basis.