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 of CAO 20.9, 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 on to the aircraft while passengers are on board, or entering or leaving, the aircraft. However, under paragraph 4.2.4 of CAO 20.9, 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 of CAO 20.9 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. Execujet Australia Pty Limited (the operator), have applied for an exemption.
Corporate jet aircraft are usually serviced and boarded away from passenger terminals. When making a refuelling stop, there may be no passenger facilities available, resulting in passengers having to stand on a busy ramp area while refuelling takes place. Further, the operator’s Air Operator’s Certificate authorises world-wide operations and consequently the aircraft operates over long distances and requires intermediate landings for the sole purpose of refuelling. On certain occasions, refuelling must occur in countries where security may be an issue because of the high profile of the passengers usually carried. The ability to refuel while passengers remain on board would enhance their security and minimise turnaround time at these locations.
The option of passengers remaining on board is not available to the operator although its operations manual details procedures that, using a flight crew member, meet all the requirements of paragraphs 4.2.1 and 4.2.2 of CAO 20.9 mentioned above, and also of paragraph 4.2.5 (refuelling to stop if vapour is detected in the aircraft). Thus, although the operator can meet the safety conditions of the larger aircraft, it cannot, without an exemption, make use of the corresponding flexibility in refuelling. The operator would be significantly affected by this.
Exemption
CASA has, therefore, issued an exemption, in effect from the direction in paragraph 4.2.3 of CAO 20.9, so that passengers may remain on board the aircraft during refuelling. Because of the safety risks involved, the exemption does not apply to the aircraft when the overwing refuelling ports are used. These risks are not present to the same degree when other refuelling ports are used. Other safety conditions comparable to those applying to larger aircraft under paragraph 4.2.2 of CAO 20.9 are included.
Conditions
For example, the conditions include telling passengers of 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. The fuel transfer system must be airtight. If an engine of the aircraft is running, the cabin attendant supervising passengers in the passenger loading area must be on the flight deck. 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.
Because the exemption affects the operation of paragraph 4.2.3 of CAO 20.9, 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. It is a remake of an instrument CASA EX23/07. Similar instruments have been issued to other operators who have demonstrated that they are able to meet the safety conditions.
The instrument commences on the day after it is registered and stops having effect at the end of 31 March 2011.
The exemption has been issued by a delegate of CASA appointed under regulation 7 of CAR 1988.
[Instrument number CASA EX37/09]