Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemptions and directions — use of portable electronic devices when loading fuel
Legislation
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 subsection 98 (5A) of the Act, the regulations may empower CASA to issue instruments in relation to matters affecting the safe navigation and operation, maintenance and airworthiness of aircraft, and design standards for aircraft. The Governor–General has relevantly made the Civil Aviation Regulations 1988 (CAR) and the Civil Aviation Safety Regulations 1998 (CASR).
Subregulation 11.160 (1) of CASR provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the regulations, including CAR, in relation to a matter mentioned in that subsection. Under subregulation 11.160 (2), an exemption may be granted to a person, or to a class of persons, and may specify the class by reference to membership of a specified body or any other characteristic. Subregulation 11.205 (1) provides that an exemption may be made subject to any conditions necessary in the interests of the safety of air navigation.
Under subregulation 235 (7) of CAR, to ensure safety, CASA may give directions about loading fuel on aircraft. Some of these directions are set out in Civil Aviation Order 20.9 (CAO 20.9).
Subsection 4 of CAO 20.9 sets out CASA’s directions under subregulation 235 (7) of CAR for loading fuel on aircraft. Under paragraph 4.2.2 of CAO 20.9, the operator of an aircraft that has an underwing fuelling system must ensure that fuel is not loaded while passengers are on board, or entering or leaving, the aircraft unless certain conditions are met. One condition, in sub‑subparagraph 4.2.2 (a) (iii), is that the operator must tell persons on board, entering or leaving the aircraft that they may not use any electrical equipment (as this might cause fuel vapours to ignite). Under subparagraph 4.2.2 (b), the operator must ensure that fuel is not loaded unless the operator is satisfied that the persons are obeying this instruction.
Under subparagraph 4.4.3 (b) of CAO 20.9, 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.
Subsection 98 (5D) of the Act provides that a legislative instrument made under the Act or the regulations may apply, adopt or incorporate any matter contained in any instrument or other writing as in force or existing from time to time, even if the other instrument or writing does not yet exist when the legislative instrument is made.
Instrument
The instrument applies in relation to the fuelling of a turbine engine aircraft using an underwing fuelling system.
The exemption variously exempts the operator, its personnel and the pilot in command of the aircraft from compliance with specified provisions of CAO 20.9 which would otherwise prevent the use of certain portable electronic devices (PEDs) in the cabin of, or outside, the aircraft during underwing fuelling operations.
PEDs are defined to cover devices: (1) transmitting on a digital mobile telephony frequency; (2) transmitting on a frequency specified in an IEEE 802.11 wireless standard (wi-fi standards); and (3) that emit radio waves but that do not have a transmitter. The 3rd category is intended to capture PEDs that produce radio frequency emissions as an incident of their circuitry.
The exemption is subject to conditions inside and outside the cabin so that PEDs may be used only in restricted circumstances. Section 7 prescribes a general condition for all the exemptions that the operator must implement procedures to maintain the safety of fuelling operations while PEDs are in use and must ensure compliance with the conditions in the instrument. In addition, the procedures must be expressed as requirements for specified operator’s personnel in the operator’s operations manual, meaning that compliance is required under subregulation 215 (9) of CAR.
For regulation 11.245 of CASR, the instrument also gives directions related to the use of PEDs by passengers inside the cabin.
The restrictions are based on the concept of a fuelling zone within which PEDs must not be used. The fuelling zone is defined in the instrument as the area that is within 3 metres radially from fuel filling and venting points, fuelling equipment and, if applicable, the hydrant valve in use for fuelling.
Outside the cabin
In addition to the general condition in section 7, the conditions in section 8 provide that a designated member of the aircraft operator’s personnel may use PEDs outside the cabin of the aircraft if the personnel have been designated by the operator after being trained in prescribed matters, and if the personnel remain outside the fuelling zone while using PEDs.
There are no conditions in relation to the use of PEDs by passengers outside the aircraft because the instrument does not provide any exemption that would otherwise permit such use of PEDs.
Inside the cabin
In addition to the general condition in section 7, section 9 of the instrument directs persons not to use PEDs in the cabin of an aircraft except with the permission of the pilot in command of the aircraft. The pilot is directed to give the permission only if all doors within the fuelling zone are closed and if the operator has notified the pilot that the operator has complied with specified conditions mentioned in section 7. The directions are given under regulation 11.245 of CASR.
Application, adoption or incorporation of wi-fi standards
In accordance with subregulation 98 (5D) of the Act, the wi-fi standards referenced in the definition of PED are incorporated as they exist from time to time so that the instrument covers devices that transmit on frequencies specified on superseded as well as future versions of the standards. The publisher of the wi-fi standards states on its website that the scope of the standards is “to define one medium access control (MAC) and several physical layer (PHY) specifications for wireless connectivity for fixed, portable, and moving stations (STAs) within a local area” and their purpose is “to provide wireless connectivity for fixed, portable, and moving stations within a local area and offers [communications regulators] a means of standardizing access to one or more frequency bands for the purpose of local area communication.”.
The wi-fi standards are freely available from the IEEE website at www.ieee.org.
Legislation Act 2003 (the LA)
For subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from compliance with a provision of the Regulations or Civil Aviation Orders. An instrument issued under paragraph 98 (5A) (a) of the Act is a legislative instrument if the instrument is expressed to apply to a class of persons or aircraft. The exemption is expressed to apply in relation to the fuelling of turbine engine aircraft and is registered as a legislative instrument.
The instrument is, therefore, a legislative instrument that is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
This instrument renews a current exemption, CASA EX66/14, which is repealed at the end of 31 July 2017. Industry has operated with the understanding that this exemption would continue and the instrument substantially replicates the purpose and legal intention of CASA EX66/14.
However, the application of the instrument has been updated to reflect the scope of subsections 4.2 and 4.4 of CAO 20.9 that were amended by the Civil Aviation Order 20.9 Amendment Order (No. 1) 2010. The amendment changed the scope of the provisions so that they applied in relation to aircraft that have an underwing fuelling system. CASA EX66/14 did not reflect the amendment. The change to the application of the instrument to reflect the 2010 amendment to CAO 20.9 does not materially affect the scope of the instrument.
In these circumstances, it is CASA’s view that it is neither necessary nor appropriate to undertake any further consultation under section 17 of the LA.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required because the instrument is covered by a standing agreement between CASA and OBPR under which a RIS is not required (OBPR id: 14507).
Making and commencement
The exemption has been issued by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR.
The instrument commences on 1 August 2017 and will be repealed at the end of 31 July 2020.
[Instrument number CASA EX106/17]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — use of mobile phones and other electronic devices when loading fuel
This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the legislative instrument
The legislative instrument applies in relation to the fuelling of turbine engine aircraft using underwing fuelling systems to exempt the operator, operator personnel, and the pilot in command of the aircraft from compliance with specified provisions of Civil Aviation Order 20.9 and the Civil Aviation Regulations 1988. The provisions covered by the exemption would otherwise prevent the use of personal electronic devices in the cabin of, or outside, the aircraft. The instrument covers personal electronic devices in the form of digital mobile telephones, devices that transmit on a frequency specified in an IEEE 802.11 wireless standard technology and portable electronic devices that produce radio frequency emissions as an incident of their circuitry.
The exemption is subject to conditions imposed by CASA in the interest of air safety.
The instrument also gives directions for persons not to use personal electronic devices inside the cabin of the aircraft during underwing fuelling operations except with the permission of the pilot in command.
Human rights implications
This legislative instrument does not engage any of the applicable rights or freedoms.
Conclusion
This legislative instrument is compatible with human rights as it does not raise any human rights issues.
Civil Aviation Safety Authority