Explanatory Statement
Civil Aviation Regulations 1988
Exemption — use of mobile phones and PDAs when loading fuel
Under subsection 98 (1) of the Civil Aviation Act 1988 (the Act), the Governor-General may make regulations for the Act and the safety of air navigation.
Under subregulation 235 (7) of the Civil Aviation Regulations 1988 (CAR 1988) to ensure safety, CASA may give directions about loading persons and goods (including fuel) on aircraft.
Subsection 4 of Civil Aviation Order 20.9 (CAO 20.9) sets out CASA’s directions for loading fuel on aircraft. Under paragraph 4.2.2 of CAO 20.9, the operator of an aircraft with a maximum seating capacity of 20 or more must ensure that fuel is not loaded while passengers are on board unless certain conditions are met. One condition in subparagraph 4.2.2 (a) (iii) is that passengers must be told that they may not use any electrical equipment (as this might cause fuel vapours to ignite). Under subparagraph 4.2.2 (b), passengers must obey this instruction.
Under subparagraph 4.4.3 (b) a person must not, and the pilot in command and the operator must take reasonable steps to ensure that the person does not, operate electrical equipment within 15 metres of the aircraft’s fuel tank filling points, vent outlets or ground fuelling equipment unless the equipment has been inspected and complies with Appendix I of CAO 20.9.
Under subregulation 308 (1) of CAR 1988, CASA may exempt an aircraft, and persons in it or associated with its operation, from compliance with specified provisions of CAR 1988. Under subregulation 308 (2), before CASA decides to give an exemption, CASA must take into account all relevant considerations relating to the interests of safety. Subregulation 308 (3) provides that an exemption may be made subject to any conditions necessary in the interests of safety. Under these provisions, it is possible to relax certain aviation rules and provide conditional alternatives if it is safe to do so.
Exemption and conditions
The exemption applies to a turbine-engine aircraft with a maximum seating capacity of 20 or more during refuelling (the aircraft), and to the operator, operations personnel, crew and passengers of such aircraft.
The exemption exempts these persons from certain provisions of CAO 20.9 which prevent the use of mobile phones and hand held personal digital assistants (PDAs) in the cabin of, or outside, refuelling aircraft.
The exemption is subject to conditions for inside the cabin and outside the aircraft so that mobile phones and PDAs may only be used in restricted circumstances. These restrictions are based on the concept of fuelling zones within which mobile phones and PDAs must not be used. Fuelling zone A means the area that is within 6 metres radially from fuel filling or venting points or equipment, and fuelling zone B means the area that is within 3 metres radially from fuel filling or venting points or equipment. The mobile phones and PDAs which pose minimal risk may be used closer to the fuelling points.
Inside the cabin
The conditions provide that a person may use a mobile phone or a PDA in the cabin of the aircraft only if the person complies with the conditions. The pilot in command must give permission for the use and the use must stop if the permission is withdrawn. The pilot in command may only give permission if all doors within fuelling zone A are closed, and the aircraft operator has ensured that radio frequency emissions will not affect aircraft systems, or if they may do so, the effects are corrected by established procedures before the engines start.
Outside the aircraft
The conditions also provide that only the aircraft operator’s operations personnel may use mobile phones and PDAs outside the cabin of the aircraft. A mobile phone, and a PDA that incorporates mobile phone technology, may only be used outside fuelling zone A. A PDA that does not transmit, or that only transmits using IEEE 802.11 wireless standard technology (thus imposing a much lower ignition risk) may only be used outside fuelling zone B.
Revocation
The instrument revokes and replaces an earlier instrument CASA 167/05 which permitted certain mobile phone and hand held PDA use but only in the cabin of an aircraft.
The instrument now allows external use of mobile phones and PDAs but by operations personnel only, but only as long as the fuel point proximity restrictions, based on the nature of the device, are observed.
Legislative Instruments Act
Under regulation 308 of CAR 1988, an exemption is declared to be a disallowable instrument.
Also, the exemption will also affect the operation of sub-subparagraph 4.2.2 (a) (iii), subparagraph 4.2.2 (b) and subparagraph 4.4.3 (b) of CAO 20.9. Under subregulation 5 (1) of CAR 1988, if an instrument affects the operation of anything in a CAO, it is declared to be a disallowable instrument.
Under paragraph 6 (d) (i) of the Legislative Instruments Act 2003 (the LIA), an instrument is a legislative instrument if it is declared to be a disallowable instrument by legislation in force before the LIA. The instrument is, therefore, a legislative instrument and as such is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation has not been considered necessary because the instrument has been specifically requested by an operator (Qantas Airways Pty Ltd), applies to all relevant operators and will facilitate operators’ coordination of loading operations.
The instrument commences on the day after it is registered and stops having effect at the end of June 2008.
It has been issued by a delegate of CASA under subregulation 7 (2) of CAR 1988.
[Instrument number CASA EX04/06]