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, by instrument, grant an exemption from compliance with a provision of CASR 1998. Under subregulation 11.160 (2), CASA may grant an exemption to a person or a class of persons. Under subregulation 11.205 (1), CASA may impose on an exemption any condition necessary in the interests of the safety of air navigation.
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 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 conditions. 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
For subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from compliance with a provision of the Regulations. 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 persons and a class of aircraft. The exemption is, therefore, a legislative instrument and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the Legislative Instrument Act 2003 (the LIA).
Compatibility with human rights and freedoms
This 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 as it does not raise any human rights issues. It does not engage any of the applicable rights or freedoms.
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. It renews a previous instrument, CASA EX108/10, which expires at the end of November 2012.
Commencement and making
The exemption commences on 1 December 2012 and stops having effect at the end of 30 November 2015.
The exemption has been made by a delegate of CASA, under regulation 11.260 of CASR 1998.
[Instrument number CASA EX175/12]