Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX113/20 — Use of Portable Electronic Devices during Fuelling Instrument 2020
Purpose
The instrument would, subject to existing conditions imposed in the interests of air navigation safety, continue to enable the following persons to use portable electronic devices (PEDs) in certain locations during the fuelling of a turbine-engined aircraft that is fuelled using an underwing fuelling system:
(a) the operator of an aircraft of that kind;
(b) the pilot in command of an aircraft of that kind;
(c) members of the operator’s personnel.
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and in the interests of the safety of air navigation. Relevantly, the Governor-General has made the Civil Aviation Safety Regulations 1998 (CASR) and the Civil Aviation Regulations 1988 (CAR).
Subregulation 11.160 (1) of CASR provides that, for subsection 98 (5A) of the Act, the Civil Aviation Safety Authority (CASA) may grant an exemption from compliance with a provision of the regulations or of a Civil Aviation Order.
Under subregulation 11.160 (2) of CASR, an exemption may be granted to a person or a class of persons, and may specify the class by reference to membership of a specified body or any other characteristic.
Under subregulation 11.160 (3) of CASR, an exemption may be granted on application by a person or on CASA’s own initiative.
Under subregulation 11.175 (4) of CASR, in deciding whether to reissue an exemption, on application by a person, CASA must regard as paramount the preservation of at least an acceptable level of aviation safety. CASA has regard to the same test when deciding whether to renew an exemption on its own initiative.
Regulation 11.205 provides that CASA may impose conditions on an exemption if necessary in the interests of the safety of air navigation. Under regulation 11.210, it is a strict liability offence not to comply with the obligations imposed by a condition.
Regulation 11.225 of CASR requires an exemption to be published on the Internet. Under subregulation 11.230 (1), the maximum duration of an exemption is 3 years.
Subpart 11.G of CASR provides for CASA to issue directions in relation to matters affecting the safety of air navigation. Under paragraph 11.245 (1) (a) of CASR, CASA may, by instrument, issue a direction about any matter affecting the safe navigation and operation of aircraft. Subregulation 11.245 (2) of CASR provides that CASA may issue such a direction only if CASA is satisfied that it is necessary to do so in the interests of the safety of air navigation, only if the direction is not inconsistent with the Act, and only for the purposes of CASA’s functions.
Under paragraph 11.250 (a) of CASR, a direction under regulation 11.245 ceases to be in force on the day specified in the direction. Under regulation 11.255 of CASR, a contravention of a direction under regulation 11.245 is an offence of strict liability.
Under subsection 235 (7) of CAR, CASA may, for the purpose of ensuring the safety of air navigation, give directions with respect to the method of loading of persons and goods (including fuel) on aircraft. Subregulation 235 (7A) of CAR provides that a person must not contravene a direction under subregulation 235 (7).
CASA has issued directions under subregulation 235 (7) of CAR in Civil Aviation Order 20.9 (CAO 20.9).
Paragraph 4.2 of CAO 20.9 relates to fuelling aircraft with passengers on board. Paragraph 4.2.2 of CAO 20.9 directs the operator of an aircraft that has an underwing fuelling system to ensure that fuel is not loaded onto the aircraft using that system while passengers are on board, or entering or leaving, the aircraft unless several conditions are satisfied, including the condition in sub-subparagraph 4.2.2 (a) (iii). That sub-subparagraph provides that before the fuel is loaded, the operator of an aircraft of that kind must ensure that all persons who may be on board, or entering or leaving, the aircraft while the fuel is loaded are told that they must not, relevantly, “use any electrical equipment (other than medical equipment used for treating a patient, the operation of which will not affect the safety of any person on board the aircraft) or do anything else that might cause fuel vapours to ignite during the loading”.
Subparagraph 4.2.2 (b) of CAO 20.9 directs the operator of an aircraft of that kind to ensure that “all persons on board, or entering or leaving, the aircraft obey the instructions given under sub-subparagraphs (a) (ii) and (iii).”
Subparagraph 4.4.3 (b) of CAO 20.9 directs:
(a) a person not to perform particular conduct during fuelling operations; and
(b) the pilot in command and the operator of an aircraft to take reasonable steps to ensure that a person does not perform the particular conduct during fuelling operations.
The particular conduct mentioned in that subparagraph includes, relevantly, operating “any electrical switch, battery, generator, motor or other electrical apparatus within 15 metres (50 ft) of the aircraft’s fuel tank filling points or vent outlets, and ground fuelling equipment unless the engine, switch, generator, motor or apparatus complies with the provisions of Appendix I to this Order and has been inspected.”. Appendix I to CAO 20.9 sets out fire safety requirements to be met by mechanical and electrical equipment within that distance of an aircraft’s fuel tank filling points and vent outlets during fuelling operations.
Subclause 1.1 of Appendix I to CAO 20.9 provides that the “requirements of this Appendix are applicable to all mechanical and electrical equipment used within 15 metres (50 ft) of an aircraft’s fuel tank filling points and vent outlets during fuelling operations.”. Subclause 1.2 of that Appendix provides that compliance “with these requirements is the responsibility of the operator of the equipment.”.
Background
Available records indicate that CASA has previously made several instruments of the same kind, beginning with instrument number CASA 167/05, Direction — Use of mobile telephones and hand held personal data assistants during refuelling (FRL number F2005L01198 refers) and, most recently, instrument number CASA EX106/17, Exemptions and directions — use of portable electronic devices when loading fuel (FRL number F2017L00975 refers). However, instruments of the same kind will no longer be required after the commencement of the Civil Aviation Safety Amendment (Part 91) Regulations 2018. The Civil Aviation Safety Amendment (Part 91) Regulations 2018 are expressed to commence on 25 March 2021.
If instrument number CASA EX106/17 is not renewed, there would be significant effects on the aviation industry, including the need for aircraft operators to retrain their personnel, change their boarding procedures and conduct a communication campaign to inform their passengers of the resulting changes. Each of those activities would impose a significant financial burden on aircraft operators.
Overview of instrument
The instrument is intended¸ subject to existing conditions imposed in the interests of air navigation safety, to continue to enable the following persons to use PEDs in certain locations during the fuelling of a turbine-engined aircraft that is fuelled using an underwing fuelling system:
(a) the operator of an aircraft of that kind;
(b) the pilot in command of an aircraft of that kind;
(c) members of the operator’s personnel.
CASA has assessed the impact on aviation safety of continuing to grant those exemptions and give those directions. Having made that assessment, because of the additional risk mitigators mentioned in the conditions in sections 8 and 9 of the instrument, CASA is satisfied that renewing the instrument would have no negative impact on the safety of carrying out fuelling operations in those circumstances.
Documents incorporated by reference
The instrument incorporates by reference the latest version of the standard titled IEEE Standard for Information technology--Telecommunications and information exchange between systems Local and metropolitan area networks--Specific requirements - Part 11: Wireless LAN Medium Access Control (MAC) and Physical Layer (PHY) Specifications, published by the Institute of Electrical and Electronics Engineers, as existing from time to time (the IEEE 802.11 wireless standard).
Paragraph 98 (5D) (b) of the Act provides that, despite section 14 of the Legislation Act 2003 (the LA), 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.
The latest version of the IEEE 802.11 wireless standard is freely available to view or download by creating a free account with the IEEE Get Program: see https://ieeexplore.ieee.org/browse/standards/get-program/page/series?id=68 and https://ieeexplore.ieee.org/document/8457463.
Content of instrument
Section 1 names the instrument.
Section 2 sets out the duration of the instrument.
The note below section 2 identifies when the directions in section 10 cease to be in force.
The note below the heading of section 3 is a signpost note, intended to assist users of the instrument to identify defined terms used in the instrument that are located in the Act, CAR or CASR.
Section 3 contains definitions of terms used in the instrument, including, in particular, the following definition:
regulated conduct means the use of a PED while a turbine-engined aircraft is being fuelled using an underwing fuelling system.
The defined term regulated conduct, along with other content of each exemption and one of the directions in the instrument, is used to identify the scope of those exemptions and that direction.
Section 4 provides that the instrument applies in relation to turbine-engined aircraft that are fuelled using an underwing fuelling system.
Subsection 5 (1) exempts the operator of an aircraft from compliance with subregulation 235 (7A) of CAR, to the extent that a direction given by CASA under subregulation 235 (7) of CAR requires the operator to ensure that, before fuel is loaded onto the aircraft:
(a) passengers are told not to engage in regulated conduct in the cabin of the aircraft; and
(b) members of the operator’s personnel who are on board, or entering or leaving, the aircraft are told not to engage in regulated conduct.
Subsection 5 (2) exempts the operator of an aircraft from compliance with subregulation 235 (7A) of CAR, to the extent that a direction given by CASA under subregulation 235 (7) of CAR requires the operator to take reasonable steps to ensure that a member of the operator’s personnel does not engage in regulated conduct outside the cabin of the aircraft.
The note below subsection 5 (2) is a signpost note, intended to assist users of the instrument to locate in the instrument the same kind of exemption related to the pilot in command of an aircraft.
Subsection 5 (3) exempts the operator of an aircraft from compliance with sub‑subparagraph 4.2.2 (a) (iii) of CAO 20.9, to the extent that the sub-subparagraph requires the operator to ensure that, before fuel is loaded onto the aircraft:
(a) passengers are told not to engage in regulated conduct in the cabin of the aircraft; and
(b) members of the operator’s personnel who are on board, or entering or leaving, the aircraft are told not to engage in regulated conduct.
Subsection 5 (4) exempts the operator of an aircraft from compliance with subparagraph 4.2.2 (b) of CAO 20.9, to the extent that the subparagraph requires the operator to ensure that:
(a) passengers obey the instruction, mentioned in paragraph (3) (a), not to engage in regulated conduct in the cabin of the aircraft; and
(b) members of the operator’s personnel who are on board, or entering or leaving, the aircraft obey the instruction, mentioned in paragraph 5 (3) (b), not to engage in regulated conduct.
Subsection 5 (5) exempts the operator of an aircraft from compliance with subparagraph 4.4.3 (b) of CAO 20.9, to the extent that the subparagraph requires the operator to take reasonable steps to ensure that a member of the operator’s personnel does not engage in regulated conduct outside the cabin of the aircraft.
The note below subsection 5 (5) is a signpost note, intended to assist users of the instrument to identify and locate in the instrument an exemption of the same kind related to the pilot in command of an aircraft.
Subsection 5 (6) imposes the conditions mentioned in paragraphs 8 (b), (c) and (d) on the exemptions in paragraphs 5 (1) (a) and 5 (3) (a).
Subsection 5 (7) imposes the conditions mentioned in paragraphs 8 (a), (c) and (d) and subsection 9 (2) on the exemptions in paragraphs 5 (1) (b) and 5 (3) (b).
Subsection 5 (8) imposes the conditions mentioned in paragraphs 8 (c) and (d) and subsection 9 (2) on the exemptions in subsections 5 (2) and 5 (5).
Subsection 6 (1) exempts members of an operator’s personnel from compliance with subregulation 235 (7A) of CAR, to the extent that a direction given by CASA under subregulation 235 (7) of CAR requires the members not to engage in regulated conduct outside the cabin of the aircraft.
Subsection 6 (2) exempts members of an operator’s personnel from compliance with subparagraph 4.4.3 (b) of CAO 20.9, to the extent that the subparagraph requires the members not to engage in regulated conduct outside the cabin of the aircraft.
Subsection 6 (3) imposes the conditions mentioned in subsection 9 (1) on the exemptions in subsections 6 (1) and 6 (2).
Subsection 7 (1) exempts the pilot in command of an aircraft from compliance with subregulation 235 (7A) of CAR, to the extent that a direction given by CASA under subregulation 235 (7) of CAR requires the pilot in command to take reasonable steps to ensure that a member of the operator’s personnel does not engage in regulated conduct outside the cabin of the aircraft.
Subsection 7 (2) exempts the pilot in command of an aircraft from compliance with subparagraph 4.4.3 (b) of CAO 20.9, to the extent that the subparagraph requires the pilot in command to take reasonable steps to ensure that a member of the operator’s personnel does not engage in regulated conduct outside the cabin of the aircraft.
Section 8 sets out conditions imposed on the exemptions in section 5 (as applicable to particular paragraphs and subsections). Those conditions require the operator of an aircraft to perform the following actions:
(a) take all reasonable steps to ensure that members of the operator’s personnel comply with the condition mentioned in subsection 9 (1);
(b) take all reasonable steps to ensure that the pilot in command of an aircraft complies with the direction mentioned in subsection 10 (2);
(c) implement procedures to ensure that:
(i) the safety of a fuelling operation will not be adversely affected by radio frequency emissions or transmissions from a PED; and
(ii) the conditions in this instrument are complied with;
(d) include particular content, including a copy of the instrument, in its operations manual.
Section 9 sets out the conditions imposed on the exemptions in sections 5 and 6 (as applicable to particular paragraphs and subsections).
Subsection 9 (1) provides that a member of an operator’s personnel may engage in regulated conduct only if the member has been specified by the operator, has received particular training from the operator and engages in the regulated conduct outside the fuelling zone.
Subsection 9 (2) provides that the operator may specify a person for subsection (1) only if the operator is satisfied that the person has completed the training mentioned in paragraph 9 (1) (c).
Subsection 10 (1) directs that a person must not engage in regulated conduct in the cabin of an aircraft unless the pilot in command of the aircraft gives permission.
Subsection 10 (2) directs that the pilot in command of an aircraft must not give the permission mentioned in subsection 10 (1) unless each door of the aircraft within the fuelling zone is closed and the operator has notified the pilot in command that the operator has complied with particular conditions mentioned in the instrument.
Legislation Act 2003
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. Subsection 98 (5AA) of the Act provides that an instrument issued under paragraph 98 (5A) (a) is a legislative instrument if the instrument is expressed to apply in relation to a class of aircraft or a class of persons. The instrument is expressed to apply in relation to turbine-engined aircraft that are fuelled using an underwing fuelling system and to the operators and members of the operator’s personnel of such aircraft. Therefore, the instrument is a legislative instrument, and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
The instrument renews current exemptions and directions in instrument number CASA EX106/17, which will be repealed at the end of 31 July 2020. As the explanatory statement for instrument number CASA EX106/17 mentions, industry has operated with the understanding that this exemption would continue.
Although it has been revised for consistency with current drafting practices, the purpose and legal intention of the instrument has not changed since CASA EX106/17 commenced. Additionally, the instrument has been issued at the request of industry and would maintain current safety standards while ensuring no increased economic burden for industry. In those circumstances, CASA is satisfied that no further consultation is appropriate or reasonably practicable for this instrument for section 17 of the LA.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required in this case, as the exemption is covered by a standing agreement between CASA and OBPR under which a RIS is not required for exemptions (OBPR id: 14507).
Statement of Compatibility with Human Rights
The Statement of Compatibility with Human Rights at Attachment 1 has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The instrument does not engage any of the applicable rights or freedoms, and is compatible with human rights, as it does not raise any human rights issues.
Making and commencement
The instrument has been made by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR.
The instrument commences on 1 August 2020 and is repealed at the earlier of the following:
(a) the commencement of the Civil Aviation Safety Amendment (Part 91) Regulations 2018;
(b) the end of 31 July 2023.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX113/20 — Use of Portable Electronic Devices during Fuelling Instrument 2020
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 instrument would, subject to existing conditions imposed in the interests of air navigation safety, continue to enable the following persons to use portable electronic devices in certain locations during the fuelling of a turbine-engined aircraft that is fuelled using an underwing fuelling system:
(a) the operator of an aircraft of that kind;
(b) the pilot in command of an aircraft of that kind;
(c) members of the operator’s personnel.
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