Explanatory Statement
Civil Aviation Regulations 1988
Exemption — refuelling with passengers on board
Legislation
Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides that the Governor-General may make regulations for the Act and in the interests of the safety of air navigation.
Subregulation 235 (7) of the Civil Aviation Regulations 1988 (CAR 1988) provides that CASA may, for the purposes of ensuring the safety of air navigation, give directions with respect to the method of loading persons and goods (including fuel) on aircraft.
Directions under subregulation 235 (7) of CAR 1988 are contained in Civil Aviation Order 20.9 (CAO 20.9). Section 4 of CAO 20.9 sets out particular directions for loading fuel on aircraft. Paragraph 4.2.3 of CAO 20.9 provides that the operator of an aircraft with a maximum seating capacity of less than 20 must ensure that fuel is not loaded on to the aircraft while passengers are on board, or entering or leaving, the aircraft.
Subregulation 235 (11) of the CAR 1988 provides that CASA may exempt an aircraft from any of the requirements imposed by regulation 235. Marcplan Charter Pty Ltd (the operator), operates the BAE 125-800XP and BAE125-900XP aircraft with nationality and registration marks VH-MBP and VH-EVF (the aircraft). The aircraft are corporate aircraft certified to carry less than 20 passengers. Corporate jet aircraft are usually serviced and boarded away from passenger terminals. When making refuelling stops there may be no passenger facilities available, resulting in passengers having to stand on a busy ramp area while refuelling takes place. The operators Air Operator’s Certificate authorises world-wide operations and consequently the aircraft operates over long distances and requires immediate landings for the sole purposes of refuelling. On certain occasions, refuelling must occur in countries where security may be an issue because of the high profile of the passengers usually carried. The ability to refuel while passengers remain on board would enhance their security and minimise turnaround time at these locations.
Under paragraph 4.2.2 of CAO 20.9, passengers on aircraft with a maximum seating capacity of 20 or more are allowed to remain on board during refuelling if certain conditions are satisfied. These conditions are contained in subparagraphs 4.2.1, 4.2.2 and 4.2.5 of CAO 20.9. The operator’s operations manual contains procedures that meet all of the requirements of these subparagraphs.
The operator has been significantly affected by the requirements of paragraph 4.2.3 of CAO 20.9 that passengers may not remain on board during refuelling. The operator has, therefore, requested an exemption from the requirements of paragraph 4.2.3 of CAO 20.9.
In light of these matters, and taking account of the safety of air navigation, CASA has issued the exemption subject to certain conditions. For example, while passengers may remain on board when fuel is being loaded, they must not board or exit the aircraft. They must be told that fuel is being loaded, that their seat belts must be unfastened, and that there must be no smoking, use of electrical equipment or action that could ignite fuel vapour. They must be told the location of the emergency exits. The cabin door must be open and the aircraft and fuelling equipment connected to an earth point. At least 1 cabin attendant must be on duty in the aircraft and the pilot in command must be in the aircraft loading area. The “fasten seat belt” signs must be off. The loading of fuel must stop immediately if fuel vapour is found in the aircraft or if, for any reason, continuation of the loading is not safe.
Legislative Instruments Act
Under subparagraph 6 (d) (i) of the Legislative Instruments Act 2003 (the LIA), an instrument is a legislative instrument for section 5 of the LIA if it is declared to be a disallowable instrument under legislation in force before the commencement of the LIA. Because this instrument affects the operation of paragraph 4.2.3 of CAO 20.9 the instrument is a disallowable instrument under regulation 5A of CAR 1988. It is therefore a legislative instrument.
As a legislative instrument, it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
Consultation under section 17 of the LIA has not been undertaken in this case. The instrument is similar to other instruments issued to other operators for which there had been prior consultation.
The instrument commences on the day after it is registered and stops having effect at the end of 28 February 2010.
The exemption has been issued by a delegate of CASA in accordance with subregulation 7 (1) of CAR 1988.
[Instrument number CASA EX09/09]
Overview
The Civil Aviation Regulations 1988, enacted to ensure the safety of air navigation, have been subject to amendments through legislative instruments such as F2009L00519. This particular exemption was introduced to address a specific operational challenge faced by Marcplan Charter Pty Ltd, the operator of corporate aircraft certified to carry fewer than 20 passengers. The exemption allows these aircraft to refuel with passengers on board, a practice typically restricted by Civil Aviation Order 20.9 (CAO 20.9). The exemption was deemed necessary because the operator's aircraft frequently operate over long distances and must refuel in locations where security concerns and the unavailability of passenger facilities necessitate such measures to enhance passenger safety and efficiency. The exemption comes with stringent conditions to maintain safety standards, including prohibiting passenger boarding or exiting during refuelling, ensuring all safety instructions are communicated to passengers, and maintaining strict supervision by cabin and pilot crew. This exemption, issued by a delegate of the Civil Aviation Safety Authority (CASA) under subregulation 7(1) of the Civil Aviation Regulations 1988, is subject to disallowance by Parliament and is effective until the end of February 2010.
Scope and Application
The Civil Aviation Regulations 1988, as amended and including the exemption for refuelling with passengers on board, applies to Marcplan Charter Pty Ltd, an operator of corporate aircraft with a maximum seating capacity of less than 20, specifically for their BAE 125-800XP and BAE 125-900XP aircraft registered as VH-MBP and VH-EVF. This exemption is granted by the Civil Aviation Safety Authority (CASA) under the Civil Aviation Act 1988, aiming to ensure the safety of air navigation. The exemption allows these aircraft to refuel while passengers remain on board, subject to stringent conditions designed to mitigate safety risks. These conditions include prohibiting passenger boarding or exiting during refuelling, notifying passengers of the refuelling process and associated safety precautions, ensuring the cabin door is open, maintaining an earth connection for the aircraft and fuelling equipment, having at least one cabin attendant present, and requiring the pilot in command to be in the aircraft loading area. The exemption is applicable nationally within Australia, extending to international operations as authorised by the operator’s Air Operator’s Certificate. The exemption is a legislative instrument under the Legislative Instruments Act 2003 and is subject to disallowance in Parliament. This exemption is effective from the day after its registration until the end of February 2010.
Key Provisions
The Civil Aviation Regulations 1988 (CAR 1988) establish the framework for safe air navigation and operations, and are supplemented by the Civil Aviation Order 20.9 (CAO 20.9). Subregulation 235(7) of the CAR 1988 allows the Civil Aviation Safety Authority (CASA) to issue directions concerning the loading of persons and goods, including fuel, onto aircraft. According to paragraph 4.2.3 of CAO 20.9, operators of aircraft with a maximum seating capacity of less than 20 must ensure that fuel is not loaded while passengers are on board or entering or exiting the aircraft. However, subregulation 235(11) of the CAR 1988 provides that CASA may grant exemptions from these requirements under certain conditions.
The obligations imposed by the exemption on Marcplan Charter Pty Ltd, the operator of the BAE 125-800XP and BAE 125-900XP aircraft, are stringent to ensure safety during refuelling. Passengers are permitted to remain on board, but they must not board or exit the aircraft during refuelling. The operator must inform passengers that fuel is being loaded, that seat belts must be unfastened, and that no smoking, use of electrical equipment, or actions that could ignite fuel vapour are allowed. Passengers must also be informed of the location of the emergency exits. The cabin door must remain open, the aircraft and fuelling equipment must be connected to an earth point, and at least one cabin attendant must be on duty in the aircraft. The pilot in command must be present in the aircraft loading area, and the "fasten seat belt" signs must be turned off. Refuelling must cease immediately if fuel vapour is detected or if it is unsafe to continue.
Failure to comply with the terms of this exemption may lead to various civil and criminal consequences. While the specific penalties are not detailed in the explanatory statement, breaches of civil aviation regulations generally can result in substantial fines and potential criminal charges. The severity of the penalties may depend on the nature and impact of the breach, with repeat offenders or significant safety risks potentially facing more severe consequences. CASA has the authority to enforce these regulations and may take action against operators who do not adhere to the stipulated conditions.
This exemption is a legislative instrument as defined under subparagraph 6(d)(i) of the Legislative Instruments Act 2003 (LIA). It is subject to the disallowance process under sections 38 and 42 of the LIA, which means it must be tabled and can be disallowed by Parliament. However, in this case, consultation under section 17 of the LIA was not undertaken, as the exemption is similar to others previously issued to other operators. The exemption issued by a delegate of CASA in accordance with subregulation 7(1) of the CAR 1988 is effective from the day after registration and will cease to have effect by the end of February 2010.