Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — for cabin crew member to use passenger seat
Purpose
The purpose of this instrument is to exempt certain operators from compliance with the standards for cabin crew seats and related equipment under regulation 90.125 of the Civil Aviation Safety Regulations 1998 (CASR 1998) and the Part 90 Manual of Standards (MOS Part 90), when the seat or equipment does not comply with the standards, is the subject of a permissible unserviceability, no alternative compliant seat is provided and a fully functional passenger seat is provided instead.
Legislation — cabin crew 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 90.125 (1) and (2) 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, and while the aircraft is operating, a seat or any related equipment that is provided for a cabin crew member does not meet the standard for cabin crew seats and related equipment set out in MOS Part 90.
Aircraft to which Subpart 90.B of CASR 1998 applies are 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.
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.
Legislation — permissible unserviceability
Under subregulation 37 (1), of the Civil Aviation Regulations 1988 (CAR 1988), CASA may approve a defect in, or damage to, an Australian aircraft, or any aircraft included in a class of aircraft, as permissible unserviceability (PUS) for the aircraft. Under subregulation 37 (2) of CAR 1988, CASA may direct that the use of the aircraft, subject to the PUS, is subject to certain conditions.
Background
From time to time before regulation 90.125 of CASR 1998 took effect on 1 December 2010, CASA approved defective cabin crew seats as a PUS. Alternative seating arrangements were made for the relevant cabin crew.
However, the effect of regulation 90.125 is that now an offence is committed if a cabin crew seat and related equipment complying with the MOS Part 90 is not provided to each cabin crew member while the aircraft is operating.
As a matter of practice, in circumstances where, for the short duration of a PUS, a cabin crew seat is not provided, the relevant cabin crew can be seated in a fully functional passenger seat with an acceptable level of aviation safety.
Exemption
The exemption, therefore, exempts operators with a non-compliant cabin crew seat from the standards for the provision of such seats to cabin crew, provided the seat is the subject of a PUS and the cabin crew member is located in a suitable front or back facing passenger seat.
Details of the exemption are set out in Appendix 1.
The exemption will operate until the end of January 2013 but, it is expected that, sometime before that date, the post-implementation review of Part 90 of CASR 1998 will have resulted in an amendment to the regulations to address this anomaly.
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. Subject to certain conditions, the exemption relieves relevant registered operators of an obligation whose effects in the circumstances may be anomalous.
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 31 January 2013.
The exemption has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
[Instrument number CASA EX16/11]
Appendix 1
Details of exemption instrument CASA EX16/11
1 Duration
Under this section, the exemption instrument commences on the day after it is registered and stops having effect at the end of 31 January 2013.
A Note explains that Part 90 of CASR 1998 will be amended, before the exemption expires, to address the subject matter of the exemption.
2 Definitions
Under this section, some key terms within the instrument are defined.
For this exemption, aircraft means an aircraft to which Subpart 90.B of CASR 1998 applies.
A Note explains that 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.
For the exemption, non-compliant cabin crew seat or related equipment is defined to mean a cabin crew seat or related equipment that is provided for a cabin crew member in an aircraft and that does not comply with MOS Part 90 Standards.
A Note explains that related equipment includes, for example, a restraint system.
The term Standards is also defined for shorthand use. It means the standards for seats and related equipment provided for a cabin crew member, as set out in MOS Part 90 made under regulation 90.125 of CASR 1998.
3 Application
Under this section, the instrument applies to the registered operator of an aircraft (as defined) in which there is a non-compliant cabin crew seat or related equipment and there is no alternative compliant seat or related equipment provided for the cabin crew member.
4 Exemption
Under this section, the registered operator is exempt from regulation 90.125 of CASR 1998 (that is, is exempt from the provision that makes it an offence, while operating an aircraft, NOT to provide a MOS Part 90-compliant cabin crew seat).
5 Conditions
Under this section, those who fall within the scope of the exemption, and who seek the benefit of the exemption, must comply with a set of compensating safety conditions as set out in Schedule 1.
Schedule 1 Conditions
Schedule 1 contains the conditions for operation of the exemption.
1Under clause 1, the non-compliant cabin crew seat or related equipment must be the subject of a PUS.
2Under clause 2, the terms of the PUS and any related conditions must be complied with.
3Under clause 3, while the aircraft is operating, the relevant cabin crew member must be provided with a forward or aft-facing passenger seat suitable for use during take-off and landing.
This latter qualification is to ensure that a side-facing or otherwise unsafe or unsuitable seat is not provided in substitution.
4Under clause 4, the substituted passenger seat must meet the applicable standards for a passenger seat and related equipment for the aircraft type, not have any defect and not itself be the subject of a PUS.
Also under clause 4, as far as practicable, the passenger seat is to be located in the passenger cabin near prescribed floor level emergency exits and provide a direct view of the cabin area for which the cabin crew member is individually responsible.
This latter condition, qualified in terms of practicability, is based on aspects of the standards for cabin crew seats in section 4 of MOS Part 90. It is recognised that it may not always be practicable for the substituted passenger seat to comply with these 2 requirements for the short duration of the operation of the relevant PUS.