Proposed amendments to Part 172 regulations and standards for air traffic service providers – (PP 2207AS)

From 9 June 2022 to 8 July 2022, we sought comment and feedback on key proposals arising from a post implementation review of Part 172 of the Civil Aviation Safety Regulations 1998 (CASR) and the Part 172 Manual of Standards (Part 172 MOS).

This consultation has now closed.

This is an interim summary of consultation (SOC) addressing only the feedback provided in relation to the fatigue management proposals.

We have not finalised our policy position on other matters, and we will issue a further SOC in due course.

About this consultation
In relation to fatigue management, we identified that the International Civil Aviation Organization (ICAO) amended Annex 11 to the Chicago Convention requiring States, from November 2020, to introduce legislation supporting and requiring air traffic service (ATS) providers to implement one of the following:

• air traffic controller schedules complying with the prescriptive limitation regulations

or

• a fatigue risk management system (FRMS) for the provision of all air traffic control services

or

• an FRMS for a defined part of its air traffic control services in conjunction with schedules in compliance with the prescriptive limitation regulations for the remainder of its air traffic control services.

Relevant to the situation, we were aware Airservices Australia (AA)—the national ATS provider—has used an FRMS since 2003. AA had written to CASA expressing its intent to continue using an FRMS into the future.

We mentioned that Annex 11 did not specify any prescriptive limitations and that States were required to develop those limitations based on their own research. Based on our experience with the flight crew fatigue standards, we were of the view that developing these limitations would take considerable effort for no specific benefit.

Considering the situation, PP 2207AS included the following key policy objectives:

1. 1. ATS providers would be required to have a system for managing fatigue, applicable to persons who provide ATS functions.

Note: ATS functions are described in subregulations 65.075 (2) and 65.130 (2) of CASR — for example: functions carried out under an aerodrome control rating or a traffic information service rating.

1. 2. CASA would be empowered to issue a MOS containing standards for the system for managing fatigue.
   3. An ATS provider’s system for managing fatigue would have to be:
      1. in accordance relevant standards specified with the Part 172 MOS
      2. integrated with the provider’s SMS.
   4. ATS providers would be able to assign people to perform ATS functions only if the assignment is in accordance with the provider’s system for managing fatigue.
   5. An ATS provider would have to seek approval from CASA for the initial implementation of its fatigue management system then for any significant changes to the system.
   6. An FRMS incorporating the matters described in Appendix 6 to Annex 11 would be the initial and only standard for an ATS provider’s system for managing fatigue.
   7. CASA’s processes for approving and regulating an ATS provider's FRMS would be based on procedures specified in Appendix 7 to Civil Aviation Order 48.1.
   8. Prescriptive standards would be provided only if the FRMS-only policy is found insufficient for managing fatigue among ATS personnel.

A total of 8 responses were received from 2 ATS providers, 2 airlines, an ATS training provider, and one remotely piloted aircraft system (RPAS) operator.

Of the respondents, 3 consented to their submissions being made public.

Summary of feedback
Five respondents agreed with proposals a. – f. (as mentioned above), while 3 respondents either didn’t comment or indicated they were undecided or the matter was outside their area of expertise. The following is a summary of their feedback:

• "The Policy proposals appear to provide a reasonable approach to meet the intended policy outcomes…"
• CASA should not double-up, but simply cross reference the fatigue standards in Annex 11.
• Fatigue management would be regulated at the level of a CAO and not a MOS. 
• How will CASA decide that an FRMS is sufficiently integrated with a provider’s SMS?
• How would a requirement for a provider to seek approval from CASA for its FRMS apply to an organisation that has already implemented an FRMS?
• FRMS baseline requirements should include maximum time in position and minimum breaks between time in position; that it should not be possible override maximum and minimums; and CASA should not approve an FRMS unless it contains mandatory limits on tactical shift changes.
• FRMS would be effective, but only if implemented with the intent of managing fatigue and not for providing a quick workaround to accept higher levels of fatigue.
• How is an acceptable level of safety established?
• How would FRMS promotion requirements apply for an organisation already using FRMS?
• How would the baseline for the ATS controller FRMS rule set would be set?

Four respondents agreed with proposal g. (FRMS administration based on CAO 48.1), while 4 respondents either didn’t comment or indicated they were undecided, or the matter was outside their area of expertise. The following is a summary of their feedback:

• The word ‘continuous’, though contained in CAO 48.1 is open to interpretation and not required by Annex 11.
• The proposal does not take into account that fatigue management is a joint responsibility between the operational person and the controller. Pilots and the operator are captured under regulation 91.520 of CASR. Similar should be provided for Part 65 licence holders.
• If the CAO 48.1 model is adopted, CASA would approve operational/duty limits as part of the provider's FRMS as well as any changes to them. This model could restrict the level of flexibility currently available.
• Process appears appropriate however Flight Crew FRMS applications required a safety case as an entry control for variances to a prescriptive ruleset. We are proposing to have no prescriptive ruleset, so it is unclear how the administrative process can function in this regard.

Proposal h. (Prescriptive standards only if FRMS is found insufficient) had a mixed response, with 3 respondents agreeing with the proposal, 2 disagreeing, and 4 either not commenting or indicating they were undecided, or that the matter was outside their area of expertise. The following is a summary of their feedback:

• Assessment and approval of the FRMS should ensure some prescriptive rules are already contained within the FRMS.
• While FRMS is an approach that can provide improved fatigue and operational outcomes through tailored risk management and greater flexibility, the provision for prescriptive standards should be available where a justifiable need exists.
• Given the basis of assessment in entry controls for mandatory duty maxima/off-duty minima are prescriptive rulesets, it is unclear how FRMS entry control and approval can be effected in their absence.
• The process to develop a prescriptive ruleset for the single ATS provider would not be fraught as it was for Flight Crews and would provide a baseline for future ATS providers should such developments in industry occur.
• There may be towers/centres where prescriptive limits may be appropriate.

We thoroughly reviewed the responses and feedback to this consultation, and the following summarises our response and intended course of action.

Regarding comment about integrating a provider's FRMS with its SMS, we are of the view that sufficient integration exists if FRMS processes are documented within, carried out in accordance with, and managed under the provider’s SMS. 

For implementing the new FRMS standards, our intention would be to assess the provider's existing FRMS against the final standards and where necessary work with the provider to arrive at an acceptable configuration. Consistent with CAO 48.1, we would then grant a trial FRMS implementation approval, thus enabling the provider to gather data to prove the effectiveness of the FRMS. Once satisfied with the effectiveness of the provider's trial approval, we would grant a full implementation approval.

We agree that baseline values should include maximum time in position and minimum breaks between time in position, and this will be addressed in our future proposals. We also agree that operational personnel (controllers and flight service officers) have a commensurate responsibility in the effective management of fatigue. Accordingly, we will include maximum time in position and minimum breaks baseline requirements as well as individual personnel responsibilities consistent with the requirements for flight crew specified in subsection 91.520 of CASR.

As to the acceptable level of safety for an FRMS, we are of the view that this is achieved when there is clear evidence the FRMS is present and suitable (established during the initial approval of the FRMS), operating (there is ongoing evidence that the relevant FRMS is in use and an output is being produced) and effective (there is evidence that the relevant indicators are achieving the desired outcomes and having a positive safety impact).

We consider continuous monitoring/improvement/promotion is fundamental to an FRMS. Annex 11 and ICAO Doc. 9966 have many references to 'continuous' in the context of FRMS. The principle is that an FRMS is not a static system but one that is subject to continuous improvement.

Regarding the comment about the administrative arrangements being restrictive, we believe the administrative arrangements are consistent with the arrangements applied to aircraft operators and are demonstrably suitable for CASA having assurance that a full FRMS is effective in managing fatigue. Aspects such as enabling the provider to propose the baseline limits for the FRMS mean the arrangements are, in fact, more flexible than the requirements applied to aircraft operators.

Concerning the negative responses to the proposal for not specifying prescriptive standards, we wish to point out that the proposed arrangement still requires baseline limits for benchmarking the effective operation of the FRMS. The difference is that the provider proposes baseline limits rather than CASA. It should be noted that, unlike the standards in ICAO Annex 6 (Aircraft Operations), an Annex 11 FRMS is not dependent on the State specifying prescriptive standards. Having said this, we are also of the view that baseline standards should not be changeable at will as this arguably affects the ability to observe trends. Instead, we believe it is logical that baseline limits are set in place or are changed only after careful development and testing, and subject to assessment and approval by CASA.

Concerning the transition from a provider’s existing FRMS to the new standards, we do not believe it would be necessary for an ATS to submit a new safety case to re-justify that FRMS. 

Finally, a MOS and a CAO have equal relevance from a regulatory standpoint, so there is no benefit in using a CAO for the ATS fatigue management standards. While our initial preference was to simply cross-reference Annex 11, the wording of that Annex does not support this. Hence the proposal to incorporate the standards within the Part 172 MOS.

Next Steps
Considering that the proposals are based on ICAO requirements and existing CASA standards for an FRMS and the overall response to the feedback, we believe it is appropriate to proceed with the proposed fatigue management standards.

Since the release of PP 2207AS, we have established that it is possible to implement them without creating a specific head of power within Part 172 of CASR. Instead, we can use existing powers under Parts 11 and 172 of CASR to fatigue management standards by way of an amendment to the Part 65 MOS and the Part 172 MOS.

Accordingly, we will develop and consult on changes to these manuals of standards that reflect the original proposal in PP 2207AS, but with essential changes as identified in our response to the feedback.

Published Responses
Annex A to this summary details the responses from persons or organisations who have given consent to publish their fatigue management responses.

Once the full SOC is published, those consenting to publish their comments will become visible on the consultation hub.