Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — from CAO 100.7 requirement for aircraft to be weighed on scales calibrated by an accredited laboratory
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the safety of air navigation.
Regulation 5 of the Civil Aviation Regulations 1988 (CAR 1988) empowers CASA to issue a direction, instruction, notification, or give a permission, approval or authority in the form of a Civil Aviation Order (CAO).
Subregulation 235 (1) of CAR 1988 provides that CASA may, for the purposes of the Regulations (CAR 1988 and the Civil Aviation Safety Regulations 1998 (CASR 1998)), give directions setting out the method of estimating, with respect to an aircraft at any time, the weight of the aircraft, together with the weight of all persons and goods (including fuel) on board the aircraft at that time, and the centre of gravity of the aircraft at that time.
CAO 100.7 was made under the abovementioned provisions of CAR 1988. Before 9 July 2015, CAO 100.7 applied to all aircraft, except balloons. Paragraph 4.1 of the then CAO 100.7 required that, among other things, aircraft weighings shall be carried out under the control of a weight control officer (WCO) whose appointment covers the activity, and under paragraph 4.3 of CAO 100.7, unless otherwise approved by an airworthiness officer, each scale shall have been calibrated either by the manufacturer or a State Weights and Measures Authority (SWMA) within a period of 1 year prior to weighing any aircraft.
On 9 July 2015, Civil Aviation Order 100.7 Instrument 2015 repealed and replaced CAO 100.7 and is, for all intents and purposes, the CAO 100.7 currently in force. The current CAO 100.7 applies to all aircraft except balloons, airships, or aircraft that have been weighed in accordance with the approved procedures of an approved self‑administering aviation organisation. Under paragraph 4.1 of CAO 100.7, aircraft weighings must be carried out under the control of a WCO whose appointment covers the activity or a person referred to in paragraph 4.1A of CAO 100.7, being a person who has completed a CASA approved weighing procedures course, has practical experience, and weighs the aircraft on scales approved by CASA. Under paragraph 4.3 of CAO 100.7, each scale must have been calibrated either by the manufacturer or by a laboratory that is accredited with the National Association of Testing Authorities (Australia) (NATA) or a similar national accreditation body that is a member of the International Laboratory Accreditation Cooperation (ILAC) within a period of 1 year before the weighing of any aircraft. The SWMA ceased to be a relevant weighing authority in 2009.
Subregulation 11.160 (1) of CASR 1998 provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the CAOs. 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.
Instrument
After the new CAO 100.7 came into effect on 9 July 2015, industry provided feedback to CASA advising that the National Measurements Institute (NMI), which was created in 2009 to perform the functions that were previously in the remit of the SWMA, is not accredited with NATA or ILAC. Other aviation industry equipment calibrating organisations may use various standards that may be traced to NATA, but those organisations are also not accredited. Consequently, weighing organisations and individuals in the aviation industry, whose primary business is to provide aircraft weight services, are unable to weigh CAO 100.7 aircraft using equipment that complies with CAO 100.7 until such time that NMI or other calibrating organisations receive NATA or ILAC accreditation.
In the interim, CASA has decided to issue an exemption from compliance with the requirements of paragraph 4.3 of CAO 100.7, applicable to CAO 100.7 aircraft and WCO or persons referred to in paragraph 4.1A of CAO 100.7. It is a condition of the exemption that, for a WCO or person referred in paragraph 4.1A who is taking advantage of the instrument, the person must weigh CAO 100.7 aircraft using scales that have been calibrated annually by the scales manufacturer, or alternatively, calibrated annually by an organisation that:
- uses standards and equipment for which a NATA or ILAC certificate of calibration (however called) is in force; or
- holds a certificate of verification issued under regulation 13 of the National Measurement Regulations 1999 (the NMR) for its standards and equipment; or
- is approved by NMI for the purpose of calibrating weighing equipment.
Regulation 12 of the NMR allows a person to apply to a verifying authority – in the case of weighing measurements, the Chief Metrologist or a person approved by the Chief Metrologist under regulation 73 of the NMR – for verification of a standard of measurement. Regulation 13 of the NMR empowers the verifying authority to verify a standard of measurement and, if the standard is verified, to issue a certificate of verification to the applicant.
CASA considers that the alternative calibration arrangements available under this exemption are equivalent to those provided for by CAO 100.7.
Legislative Instruments Act 2003 (the LIA)
Under subparagraph 6 (d) (i) of 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.
Under regulation 5A of CAR 1988, if CASA has issued a CAO, and CASA later issues an exemption that affects the operation of that CAO, the later document is declared to be a disallowable instrument. This instrument affects the operation of paragraph 4.3 of CAO 100.7 and is, therefore, declared to be a disallowable instrument.
As a legislative instrument, it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
This instrument has been made following industry feedback on recent amendments made to CAO 100.7. CASA has assessed the implications of the industry feedback and recognises that an exemption is necessary until such time that NMI or other industry recognised calibrating organisations are accredited with NATA or ILAC for the purposes of compliance with CAO 100.7. Aviation safety will not be adversely affected since weighing calculations and parameters for CAO 100.7 aircraft have not changed, only the accreditation aspect of the calibrating organisation is being addressed.
CASA will introduce an amendment to CAO 100.7 to incorporate the substance of this exemption into the CAO, at which time this exemption will no longer be required.
It is CASA’s view that it is not necessary or appropriate to undertake any further consultation under section 17 of the LIA.
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, which is minor or machinery in nature, 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 the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
The exemption commences on the day of registration and expires at the end of June 2017, as if it had been repealed by another instrument.
[Instrument number CASA EX135/15]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — from CAO 100.7 requirement for aircraft to be weighed on scales calibrated by an accredited laboratory
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
This legislative instrument exempts aircraft to which Civil Aviation Order 100.7 Instrument 2015 applies (CAO 100.7 aircraft) and the responsible weight control officer, or person who may conduct weighing under paragraph 4.1A of Civil Aviation Order 100.7 (CAO 100.7), from the requirement that the weighing scales must be calibrated by a laboratory that is accredited with the National Association of Testing Authorities (Australia) or a similar national accreditation body that is a member of the International Laboratory Accreditation Cooperation. The exemption allows industry to weigh CAO 100.7 aircraft using scales that have been calibrated by the scales manufacturer or organisations described in the exemption.
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