Proposed change to policy on carriage of personnel involved in firefighting activities - (PP 2406OS)

This consultation proposed a policy change to allow Part 138 Aerial Work Certificate holders to carry personnel involved in firefighting activities to and from a fireground in rotorcraft for hire or reward, as an alternative to carriage under the air transport rules.

Firefighting is a major public interest and benefit activity across Australia. It involves a large number of operators, first responders and volunteers who all give their time and expertise to protect the community. The carriage of passengers directly involved in the firefighting activities is a critical part of these operations.

Aircraft operators and fire control agencies have previously told us that the operational environment of the fireground may be more closely aligned with the aerial work rules, due to challenging and dynamic flying conditions and the uncertainty of landing sites. This sets it apart from typical air transport operations.

While air transport operations provide the highest level of safety where passengers are not expected to understand the safety issues and risks, passengers of aerial work operations are expected to be 'informed passengers' and understand these issues and risks.

Safety of the passengers is paramount, and the proposal will involve the implementation of safety controls. These include risk management tools pilots and operators routinely use in aerial work, as well as safety and awareness training for passengers prior to and as part of the operation.

We want to make sure the rules are effective in balancing the safety of the people involved and the public interest and the community benefit of firefighting activities. This includes making sure there is clarity and a shared understanding of the policy and its objectives, the passengers and operations that are covered, and the aims and objectives of the safety controls.

We understand there are other circumstances where emergency services personnel may need to be transported by rotorcraft to help protect the community, such as flood rescue and relief. The implementation of the current proposal in time for fire season 2025/26 will provide valuable insights and help guide the consideration of other operations and aircraft in future.

About this consultation

This consultation opened on 12 September 2024 and closed on 10 October 2024.

For this consultation, 'passengers' refers to the personnel who are involved in firefighting activities and transported as aerial work passengers in accordance with this policy proposal. 'Firefighting activities' are those ground-based activities associated with a tasking by an emergency services agency for the purposes of a response to a fire 'incident'[1].

A summary of the feedback is provided below.

We received 39 responses, mostly from aircraft operators and pilots, with 3 from emergency service agencies. The comments and suggestions are valued and are important in helping to shape workable outcomes that preserve aviation safety.

Twenty-eight respondents (72 %) said they agree with the proposal and 8 (21%) said they do not. Three did not indicate agreement or otherwise. Seventeen respondents provided additional comments on the reasons why they agree or don't agree. Twenty-two respondents did not provide additional comments.

We asked whether there were any concerns about the proposal that we should consider. Seventeen respondents answered 'No, I am satisfied' and one respondent did not answer this question. Twenty-one (54%) respondents indicated 'Yes' and provided a range of suggestions.

Similarly, in relation to suggestions about how the proposal could be improved, 16 respondents said that they did not have any suggestions. Two respondents did not answer this question, and a further 2 respondents noted comments made in the previous section. The remaining 19 respondents provided helpful suggestions on various topics, some of which were out of scope.

We asked whether you had any suggestions or alternative approaches we could take in relation to the carriage of firefighting personnel. Twenty-one respondents answered 'No' to this question and one did not provide a response. Seventeen respondents provided a range of suggestions, with 5 of these referring to their previous comments. Sixteen respondents provided further general comments.

The comments and suggestions received are valued and are important in helping to shape workable outcomes that preserve aviation safety.

We have summarised the feedback below, including the key themes of the suggestions and comments.

Summary of feedback

In support for the proposal, respondents offered opinions and suggestions about:

• the alignment of firefighting operations with the aerial work rules
• opportunities and support for operators to get the job done
• the need for high operational standards, robust procedures and validation of personnel training.

Where the proposal was not supported, respondents offered opinions about:

• the risks associated with conducting operations in such conditions and the preference for higher protections offered by air transport rules
• a lack of clarity in distinguishing between aerial work and air transport across all emergency services, which was raised in the context of widening the proposal to cover a broader range of emergency operations and personnel
• insurance and liability risk.

Other suggestions and comments were provided on the following topics which are noted but out-of-scope of the current proposal:

• expansion of the policy to other emergency services and broader operations
• carrying more than 9 passengers
• use of restricted category aircraft.

Five broad themes emerged from the feedback:

1. Alignment of firefighting operations

Several respondents commented that the proposed policy would reflect a greater alignment of the operations to the Part 138 aerial work rules and would assist industry and emergency services to get the job done. Highlighted in responses was that the operating environment differs from air transport operations in terms of the uncertainty of conditions, the lack of designated landing sites and the necessity for low-level flying in some circumstances.

Three respondents noted that the policy would provide more opportunities for operators, including allowing the use of more aircraft, increased flexibility and efficiency, and reduced costs for fire crew transport. One operator described aerial work operators as being more capable of conducting these operations.

Conversely, 4 respondents raised concerns about passenger safety, noting that the carriage of personnel should be under air transport rules. Further, that firefighting personnel should be afforded the same level of protection as other air transport passengers and have the same level of insurance under 'ICAO charter operations'.

Respondents who indicated that they currently operate under both Part 138 and Part 133 commented they would not be significantly affected by the proposal, and they already apply equivalent risk controls to ensure safety of operations regardless of the applicable ruleset.

CASA's response

The safety of passengers is paramount, and the suitability of both the air transport and the aerial work rules were carefully considered. After discussing the proposal with stakeholders, including the Australasian Fire and Emergency Services Authorities Council (AFAC), emergency services agencies, and operators, a conclusion was reached that an acceptable level of safety can be achieved under the aerial work rules where the operation and passengers are like those typical of aerial work. This aims to provide greater flexibility to operators.

2. Management of passenger training and briefings

Ten (25%) respondents commented about the training of passengers and pre-flight briefings.

One respondent cited challenges in being able to validate the level of understanding passengers have before flying, which may place risk on the operator or pilot on the day and can expose other passengers to increased risk. Another respondent questioned the concept of a firefighter being able to be trained in, and accurately assess, the safety and capability of an aircraft before accepting a mission particularly during an operation. The additional pressures on pilots in terms of needing to deliver complex briefings on the rules under which the flight is conducted, and why the aircraft is suitable, was also raised.

Respondents offered suggestions in relation to training and briefings, which included:

• training through a detailed briefing should be delivered by the operator/pilot before flight to ensure that the training is to the same standard as set out in the company operations manual
• further clarity is needed on the requirements for an operator/pilot to convey training, and how passenger agreement and questions can be recorded in a practical manner
• passengers should be briefed by their own agency to remove the challenges and risks for an operator or pilot to provide this during an emergency services operation
• briefings delivered during the operation should be targeted to information relevant to the flight
• passengers should be trained in crew resource management
• if aircraft unloading is in remote areas, a designed crew person or appointed passenger should be fully briefed on loading/unloading and be capable of delivering a safety briefing.

CASA's response

Under the proposal, the passengers would be considered aerial work passengers. Therefore, they would need to receive training prior to any emergency response, which could be completed as an annual activity through their emergency service agency. This training aims to provide knowledge that is typical of what other aerial work passengers receive. It would include the different risks of aerial work compared to air transport, general safety around rotorcraft operations, loading/unloading processes and the safe carriage of equipment. It is important that this training be undertaken outside of an emergency operation to remove pressure and allow passengers to choose whether to participate.

The responsibility is on operators to have processes in place in their operations manual to ensure that passengers being carried have completed appropriate pre-flight training and that this is recorded accurately. This may be coordinated between emergency service agencies and operators who are engaged by them to conduct operations. This would include measures to record and ensure currency of training. Preflight safety briefings delivered by the operator/pilot on the day are in addition to this generic training.

3. Expanding the policy

Nine (23%) respondents commented that the proposed policy should be expanded to other emergency services, other operations and/or personnel. Suggestions to expand the policy were in respect of:

• other personnel essential to a fire operation, including landholders, rangers, Indigenous rangers and equipment operators
• fixed wing aircraft
• transport from a regional base (not within the vicinity of a fireground) to a remote fireground
• transport from a staging area to another staging area close to a fireground, including pre-positioning to support changing operational requirements
• non-firefighting personnel being transported to a 'Helibase' to conduct support operations, such as an Air Base Manager
• firefighting and State Emergency Service personnel conducting flood rescue and relief taskings
• other essential personnel that may need to be moved during emergency service operations or in around 'work zones', such medical personnel, police, and energy workers
• carriage of more than 9 passengers.

One respondent indicated that they do not support the proposal in its current form due to the scope being limited to firefighters, and the carriage of these passengers in and around firegrounds. The response elaborated on specific concerns including:

• the narrow focus of the proposal leads to an unclear distinction between aerial work and air transport across all emergency operations (firefighting and non-firefighting)
• confusion, inefficiencies and risks could be introduced for multi-agency emergency responses because the regulatory framework would not align with the breadth of these operations and personnel
• emergency services comprise wide range of non-firefighting related incidents and operations that require specialist aerial support, a versatility of helicopter operations and a diversity of support personnel and transitioning to the current proposal could lead to increased risks, operational delays and a reduced capacity for an effective response.

While also out-of-scope for the current proposal, 3 respondents raised concern about the carriage of passengers in restricted category aircraft, such as ex-military aircraft, citing concerns about maintenance standards and a de-valuing of civilian aircraft currently used in operations.

CASA's response

The objective of the current proposal is to enable the carriage of passengers in and around firegrounds by aerial work certificate holders, with the aim of supporting firefighting operations.

For the operation to be an aerial work operation, certain criteria will need to be met, otherwise it would be an air transport operation. For example, the maximum number of passengers will be 9 as per the current aerial work rules. The passengers will also need to have received risk and safety training prior to the incident and consented to participate. This training is a new criterion to ensure that they have been given information to allow them to understand the safety and risks like other aerial work passengers and allow them to choose to participate.

The criteria for application of the aerial work rules will be finalised as part of the next steps to implement the policy, and CASA will continue to consult with the AFAC and stakeholders as appropriate. The criteria will be communicated to stakeholders before the policy commences to ensure there is clarity and a shared understanding. This will also assist emergency services agencies and operators to prepare and put in place appropriate procedures, guidance, operational documents and risk-management strategies to support operations.

In operations where the criteria are not met, the air transport rules will apply. This approach means that emergency service agencies and operators can determine to conduct the flight under the aerial work rules, or the air transport rules, based on an assessment of the individual circumstances. It provides maximum flexibility for emergency services agencies and operators and allows for differences in managing and responding to fire incidents between Australian States and Territories.

The rules for the carriage of passengers not directly involved in the fire incident are not changing, and these passengers are not being considered for carriage under the aerial work rules. They would continue to be transported under the air transport rules in line with the carriage of passengers generally. The framework aims to balance the risks, set clear parameters for the policy, and ensure that an acceptable of aviation safety can be maintained.

In relation to expanding the proposal to other emergency services, CASA is aware that there are other possible use cases and that emergency services agencies are interested in widening the scope of the proposal to similar activities, such as flood relief. It is acknowledged that a broader application may assist emergency services agencies to better manage responses across the breadth of their operations, facilitate efficiencies and provide greater regulatory clarity, particularly for complex multi-agency responses.

It is important to note that the transport of passengers responding to a fire incident by aerial work certificate holders has required careful consideration of the suitability of both the air transport and aerial work rules in relation to these passengers. For passengers captured by the policy, it was important to examine the applicable activities and risks and the passenger's ability to understand and freely accept the risks. Issues specific to firefighting such as the fireground environment and weather conditions, the uncertainty of landing sites, the loading/unloading of passengers within firegrounds and the safety of people on the ground in these zones, may not translate to other emergency incidents which would have their own unique risks.

As the safety of personnel is paramount, a separate consideration of the suitability of the aerial work rules for the carriage of passengers undertaking other emergency service responses will be considered in future in conjunction with emergency services agencies and the AFAC. This includes having a fulsome, considered and shared understanding of the activities, risks and environment that may be present in these operations. For example, the operational risks that may be present in typical flood events, the likely taskings and the personnel directly involved.

Implementation of the current proposal for the 2025/26 fire season will provide valuable insights on the effectiveness and use of the policy. It will help to inform this future work and identify and better manage risks across different and complex responses.

4. Insurance and liability risk

Five respondents raised specific concerns about insurance and liability risks. From an operator perspective, a key concern was increased liability risks in the event of an accident or incident and subsequent claim. This includes potential flow-on business impacts such as the cost of insurance premiums. Two respondents raised insurance from a passenger perspective, commenting that passengers should have coverage to the level of charter operations.

CASA's response

There are key differences in the air transport rules and aerial work rules in relation to insurance and carrier liability. The carrier's liability insurance scheme under the Civil Aviation (Carriers' Liability) Act 1959 is targeted at passenger travel and reflects provisions in international treaties which Australia has signed and ratified. The scheme limits carrier liability for passenger operations conducted by Australian air transport certificate holders and covers events such as injury or death of a passenger, delay, and the loss or destruction of baggage and cargo. It does not, and is not intended to, generally extend to aerial work operations and does not cover operators who hold only an aerial work certificate and carry aerial work passengers in aerial work aircraft.

The insurance and liability implications to an operator in relation to transporting passengers under the aerial work rules is a factor that would need to be carefully examined by the operator based on their individual circumstances and risk assessment of the proposed operations. As noted above, certain criteria will need to be met for the aerial work rules to apply and if they are not met, the air transport rules will apply.

Where an operator holds both an air transport operator's certificate and an aerial work certificate, previous High Court judgements have ruled that aerial work passengers carried in aerial work aircraft are covered by the carrier's liability scheme. Further information on carrier's liability is available on the CASA website at: Carriers' liability insurance | Civil Aviation Safety Authority.

In relation to insurance coverage for passengers, it is important that passengers to be carried under the aerial work rules also understand the different levels of safety and risks, including in relation to insurance coverage in the event of an accident or incident. Under the proposal, personnel are required to receive training prior to an emergency incident on the differences between the air transport and aerial work rules and be willing to participate. The right to refuse to participate rests with individual personnel and may be dependent on a range of individual factors and risk appetite.

5. Operational framework

Nine (23%) respondents commented and provided suggestions on issues related to the operational framework.

The difference in flight duty times under the aerial work rules compared to air transport was raised by some respondents. One respondent noted that the risk of flight duty time breaches would be reduced by the proposal. Another suggestion was that the air transport flight duty times should apply to Part 138 operations where passengers are carried.

Conversely, concern was raised that flight duty times where personnel must be transported outside the policy under the air transport rules, would limit pilot hours and days for the carriage of passengers under the aerial work rules and result in an operational limitation. This concern was raised in the context of expanding the policy to additional emergency services and personnel.

Respondents also commented on the importance of the rules being complied with to ensure safety in an emergency service operation and need for clarity and simplicity in the rules to enable effective compliance. The need to maintain high professional standards was offered by one respondent. Effective communications, including between aircraft as needed, was raised as being critical to operations around firegrounds, particularly in relation to landing sites and the safety of people on the ground in these areas.

Two (5%) respondents commented on the existing aerial work rules, noting that firefighters and task specialist passengers can already be carried by Part 138 Aerial Work Certificate holders. The importance of having clarity around which personnel can be carried was also raised and one respondent suggested this should be set out in operational documents.

CASA's response

Flight duty times. CASA acknowledges that flight duty times depend upon the operation. The definition of 'emergency service operation' in relation to the fatigue management rules is to ensure that appropriate flight duty times apply having regard to the nature of these types of operations, which differ from other operations. Further information on the rules that apply to particular operations is set out in CASA's Civil Aviation Order 48.1 Fatigue Management Plain English Guide, available on the CASA website.

'Emergency service operation' as defined in the aerial work rules allows operations that are aerial work, which are also part of an emergency service operation, to have some special rules apply to the flight.

Compliance and professional standards. CASA agrees with the need for clarity, simplicity and high professional standards. Knowledge of, and compliance with the rules, and a shared commitment to safety for all involved (personnel, pilots, people on the ground), is critical to managing operations in a complex and challenging environment in and around firegrounds.

Existing rules and proposed change.  In relation to the existing Part 138 rules, it is important to note that aerial work passengers can only currently be carried under limited circumstances in relation to aerial work operations. A 'task specialist' is only where the passenger is performing a task that is part of the aerial work operation. It does not include transporting passengers to undertake other tasks.

The operations covered by the proposal target the transport of certain passengers in and around firegrounds who are directly involved in responding to a fire incident. This is not currently permitted by Part 138. Further guidance on the existing Part 138 rules and core concepts can be found in advisory circular AC 138-01 available on the CASA website.

Where needed, CASA will seek to engage with individual respondents to further clarify the existing rules and the proposed policy. Comprehensive communications and guidance materials will be developed as part of the policy implementation activities.

Next steps

CASA will work to implement the policy in time for the 2025/26 fire season.

The next steps are for CASA to finalise the criteria that will need to be met for the aerial work rules to apply for the carriage of passengers involved in responding to a fire incident. This work will be undertaken in consultation with the AFAC and stakeholders.

Further steps will include preparing the necessary legislative instruments, guidance materials and other public communications.

The feedback received as part of this consultation process will be considered in finalising and implementing the policy.

Further discussions with emergency services agencies on how the policy could be applied to other emergency service operations will be undertaken in future. This includes adopting the learnings and experience from the firefighting case.