Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — side facing seats on aircraft not occupied for take-off or landing
Purpose
The purpose of this instrument is to modify the scope of regulation 90.120 of the Civil Aviation Safety Regulations 1998 (CASR 1998) in relation to safety standards for side‑facing seats on aircraft.
Legislation — side-facing seats
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and the safety of air navigation.
Under subregulations 90.120 (1) and (3) of CASR 1998, the registered operator of an aircraft to which Subpart 90.B of CASR 1998 applies, commits a strict liability offence if he or she operates the aircraft, or permits it to be operated, in breach of a requirement in subregulation 90.120 (2) dealing with safety standards for side-facing seats.
Subpart 90.B of CASR 1998 applies to aircraft other than balloons, airships, sailplanes, powered sailplanes and aircraft with certain special certificates of airworthiness, experimental certificates, special flight permits and provisional certificates of airworthiness.
Subregulation 90.120 (2) of CASR 1998 specifically provides that a side-facing seat must be equipped with an approved lap belt and an energy-absorbing rest that would support the occupant’s arms, shoulders, head and spine in an emergency landing, or alternatively an approved safety harness that would prevent the occupant’s head being injured by striking an object during an emergency landing.
Legislation — exemptions
Under subregulation 11.160 (1) of CASR 1998, CASA may grant an exemption from compliance with a provision of CASR 1998. Under subregulation 11.160 (3), CASA may grant an exemption of its own initiative. Under subregulation 11.170 (3), in deciding whether to grant an exemption, CASA must regard as paramount the preservation of an acceptable level of safety. Under subregulation 11.205 (1), CASA may impose conditions on an exemption if this is necessary in the interests of the safety of air navigation. Under regulation 11.210, it is an offence to fail to comply with a condition of an exemption. Under regulation 11.225, an exemption must be published on the internet. Under subregulation 11.230 (1), an exemption ceases on the day specified within it (but no longer than 2 years after its commencement), or if no day is specified, 2 years after commencement.
Background
The safety standards set out in regulation 90.120 of CASR 1998 are designed for seats that are to be occupied during an aircraft’s take-off or landing. However, they are unnecessarily stringent for side-facing seats that would be temporarily occupied only during cruising flight (for example lounge seats, or seats for observers on search and rescue aircraft) and that would be vacated for take-off or landing.
Before regulation 90.120 of CASR 1998 took effect on 1 December 2010, registered operators of relevant aircraft were subject to Airworthiness Directive (AD) AD/General/64, Amdt 2 — Side Facing (SF) Seats — Improved Occupant Restraint — 9/201 DM. This required occupant restraint systems of side-facing seats to be modified to schemes approved by CASA. Part 90 of CASR 1998 has now expressly legislated the specific standards consistent with those under the United States of America Federal Aviation Regulations (FAR 25).
However, the former AD made it clear that where seats were not to be occupied during take-off or landing, and had a placard with an appropriate prohibition, the modified restraint standards did not apply.
In the preparation of regulation 90.120 of CASR 1998, this limitation on the scope of safety standards for side-facing seats was overlooked with the consequence that high standards apply also to side-facing seats that are not intended for occupancy during take‑off or landing.
Exemption
It is expected that within the next 2 years, Part 90 of CASR 1998 will be subject to a general post-implementation review which will identify possible changes to refine the scope and operation of the Part. At that time, regulation 90.120 will be amended to exclude from its scope side-facing seats that are not intended to be occupied during take-off or landing.
In the meantime, however, it is necessary for CASA to use its exemption powers to, in effect, exempt such seats from the unintended scope of regulation 90.120 of CASR 1998.
The exemption, therefore, applies to the registered operator of an aircraft to which Subpart 90.B of CASR 1998 applies (that is excluding the types of aircraft mentioned above). The registered operator is exempt from regulation 90.120 of CASR 1998.
The exemption is subject to confining conditions. Thus, the exemption applies to a side‑facing seat of an aircraft only if the registered operator requires the seat to be unoccupied during take-off or landing, and only if the seat has a prominent placard prohibiting occupancy during take-off or landing.
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. Regulation 11.215 of CASR 1998 declares an exemption of this kind to be a disallowable instrument. The exemption is, therefore, a legislative instrument and 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 was not considered necessary in this case. The exemption relieves relevant registered operators of an obligation whose original scope was wider than intended.
Office of Best Practice Regulation (OBPR)
The exemption is of beneficial effect. OBPR does not require preparation of a Regulation Impact Statement in this case because a preliminary assessment of business compliance costs in the context of the nature of the instrument indicates that it will have only a nil to low impact on business.
Commencement and making
The exemption commences on the day after it is registered and stops having effect at the end of 30 November 2012.
The exemption has been made by the Acting Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
[Instrument number CASA EX108/10]