Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — take-off with traces of frost
Legislation
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 paragraph 244 (1) (c) of the Civil Aviation Regulations 1988 (CAR 1988), immediately before taking off, the pilot in command of an aircraft must ensure that all external surfaces of the aircraft are completely free from frost and ice.
Subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998) provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the regulations, including CAR 1988, 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.
Under subregulation 11.205 (1) of CASR 1998, CASA may impose conditions on an exemption if this is necessary in the interests of the safety of air navigation. Under regulation 11.225 of CASR 1998, 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 3 years after its commencement) or, if no day is specified, 3 years after commencement.
Under subsection 33 (3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
Instrument
CASA previously issued instrument CASA EX70/13 which allowed larger aircraft with maximum take-off weight (MTOW) over 5 700 kg conducting regular public transport (RPT) operations to take off with residual traces of frost or ice. The intention of CASA EX70/13 was to allow larger aircraft to take off without requiring de-icing/anti-icing treatment where there has been a coating of frost to the underside of the aircraft wings within the permitted limits of the manufacturer’s instructions.
An internal review of CASA EX70/13 found that the instrument was drafted in a manner which nevertheless required the application of de-icing/anti-icing treatment to the aircraft before take-off. The review recommended that CASA EX70/13 be repealed and a new legislative instrument created to clarify the intention that larger aircraft conducting RPT operations do not require de-icing/anti-icing treatment within the manufacturer’s permitted frost limits. The review also recommended the exemption be expanded to cover charter operations and to allow aircraft to take off with a thin layer of hoarfrost on the upper fuselage if permitted by the aircraft manufacturer.
This instrument repeals and replaces CASA EX70/13. The instrument exempts pilots in command of larger aircraft from complying with paragraph 244 (1) (c) of CAR 1988 and is subject to a range of conditions, including that the aircraft must not have any frost, ice or snow adhering to the aircraft’s critical surfaces.
Having taken into account all relevant safety considerations, CASA is satisfied that larger aircraft engaged in RPT and charter operations may safely conduct take-off with frost adhering to the underside of their wings caused by cold-soaked fuel, provided that take-off is conducted in accordance with the aircraft flight manual, the flight crew operating manual or the dispatch deviation guide instructions. This means that the depth of frost permissible on the underside of the aircraft’s wings prior to commencing take-off will be determined by the aircraft manufacturer. The instrument also allows larger aircraft to conduct take-off with a thin layer of hoarfrost on the upper fuselage if permitted by the aircraft manufacturer.
Legislative Instruments Act
For subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from compliance with a provision of CAR 1988 or CASR 1998. 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 applies to a class of aircraft, being aircraft of MTOW over 5 700 kg. The exemption is, therefore, a legislative instrument subject to tabling and disallowance in the Parliament under sections 38 and 42 of the Legislative Instruments Act 2003 (the LIA).
Consultation
In 2011, CASA published a draft of proposed amendments to Part 91 of CASR 1998, which included proposed standards relating to frost, ice and snow adhering to an aircraft, and invited comments from the aviation industry and the general public on the draft amendments.
Further consultation under section 17 of the LIA has not been undertaken specifically for this instrument, consultation having already taken place as part of proposed amendments to Part 91 of CASR 1998. CASA is satisfied that no further consultation is appropriate or necessary in these circumstances.
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 exemption is covered by a standing agreement between CASA and OBPR under which a RIS is not required for exemptions (OBPR id: 14507).
Making and commencement
The exemption has been made by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR 1998.
The instrument commences on the day of registration. It expires at the end of 30 June 2016, as if it had been repealed by another instrument.
[Instrument number CASA EX13/14]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — take-off with traces of frost
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 permits a larger aircraft with a maximum take-off weight of more than 5 700 kg that is engaged in regular public transport operations or charter operations to take off with frost adhering to the underside of its wings if that frost has been caused by cold-soaked fuel. The exemption is subject to conditions directed by CASA in the interest of safety, including that take-off be conducted in accordance with the aircraft flight manual, the flight crew operating manual or the dispatch deviation guide instructions for the aircraft, which specify the depth of frost permissible on the underside of the aircraft’s wings in order to conduct a safe take-off. The exemption also permits the aircraft to take off if there is a thin layer of hoarfrost on the upper fuselage of the aircraft if permitted by the aircraft manufacturer.
The primary purpose of the legislative instrument is to allow larger aircraft to take off even though they are not completely free from frost and ice, subject to compliance with the stated conditions.
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