Explanatory Statement
Civil Aviation Regulations 1988
Exemption — refuelling with passengers on board
Legislation
Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides that the Governor-General may make regulations for the Act and the safety of air navigation.
Subregulation 235 (7) of the Civil Aviation Regulations 1988 (CAR 1988) provides that to ensure the safety of air navigation, CASA may give directions about the method of loading persons and goods (including fuel) on aircraft.
Subsection 4 of Civil Aviation Order 20.9 (CAO 20.9), made under subregulation 235 (7) of CAR 1988, sets out CASA’s directions for loading fuel on aircraft.
Under paragraph 4.2.1 of CAO 20.9, the operator of an aircraft with a maximum seating capacity of 20 or more may never permit passengers to remain on board during refuelling with avgas. However, under paragraph 4.2.2, the passengers of these larger aircraft may be permitted to enter, leave or remain on board during refuelling with anti‑static aviation grade turbine fuel if certain conditions are met.
Under paragraph 4.2.3 of CAO 20.9, the operator of an aircraft with a maximum seating capacity of less than 20 must ensure that fuel is not loaded onto the aircraft while passengers are on board, or entering or leaving, the aircraft. However, under paragraph 4.2.4, the operator may allow passengers to remain on board if their medical condition is such that they cannot leave the aircraft without assistance, the fuel is not avgas or aviation turbine grade which does not contain an anti-static and the conditions in paragraph 4.2.2, applicable to an over 20 passengers aircraft, are observed. These conditions include the presence of cabin attendants.
One effect of paragraph 4.2.3 of CAO 20.9 is that, unlike passengers on larger aircraft, passengers on smaller corporate jet aircraft must disembark and reboard on longer flights which require mid-flight refuelling even with anti-static aviation grade turbine fuel.
Under subregulation 235 (11) of CAR 1988, CASA may exempt an aircraft from any of the requirements imposed by regulation 235, including the directions under CAO 20.9.
Gandel Investments Pty Ltd (Gandel) operates a Bombardier BD 700 Global Express aircraft with nationality and registration marks VH-TGG. Gandel’s BD 700 aircraft, though certified for less than 20 passengers, carries a flight attendant for all operations. Gandel had been severely affected by the requirements of paragraph 4.2.3 of CAO 20.9 because these provisions do not allow passengers to remain on board during aircraft refuelling. The preferred practice is to load an amount of fuel before the passengers have boarded. Once passengers have boarded and the maximum weight is known, Gandel can then increase the fuel load to maximum weight. This practice is necessary to avoid intermediate landings for further fuel loading. Gandel’s Operations Manual details procedures that meet all the requirements of paragraphs 4.2.1, 4.2.2 and 4.2.5 of CAO 20.9.
Exemption
CASA has, therefore, issued an exemption from paragraph 4.2.3 of CAO 20.9 for the refuelling of the Bombardier BD 700 aircraft while passengers are on board. The exemption is subject to conditions.
Conditions
The conditions include telling passengers about the refuelling, that their seat belts must not be fastened and that they must not smoke, use certain electrical equipment or do anything that might cause risk of fuel vapour igniting. There must be at least 1 member of the flight crew on duty in the passenger loading area of the aircraft to ensure passenger safety, maintain discipline and supervise any necessary evacuation. The cabin doors must be open. Unless in the passenger loading area supervising passengers, the pilot in command or the co-pilot must be supervising the loading of the fuel. External evacuation areas must be kept clear. The fuel transfer system must be airtight. If an engine of the aircraft is running, the member of the flight crew supervising passengers in the passenger loading area must also monitor the readings on the auxiliary power unit panel in the aircraft adjacent to the passenger loading area. The loading of fuel must immediately cease if fuel vapour is found inside the aircraft or the continuation of the loading is unsafe. The operations manual must specify the responsibilities of the flight crew, set out procedures for complying with the conditions, include mention of the exemption instrument and an instruction that the procedures and the instrument must be complied with.
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.
The instrument is declared to be a disallowable instrument under regulation 5A of CAR 1988. It is, therefore, a legislative instrument. As a legislative instrument, 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 has not been undertaken in this case because of the specialised nature of the instrument, and of the aircraft and aircraft operations to which it applies. The instrument is substantially the same as instruments issued to other operators. These exemptions are issued, as required, to operators who demonstrate ability to comply with the same stringent safety conditions.
The instrument commences on the day after it is registered and stops having effect at the end of 30 April 2011.
The exemption has been issued by a delegate of CASA appointed under regulation 7 of CAR 1988.
[Instrument number CASA EX29/08]