Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — from compliance with Foreign State of Design Airworthiness Directive
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.
Airworthiness Directives
Under regulation 39.003 of the Civil Aviation Safety Regulations 1998 (CASR 1998), a person must not operate, and a registered operator must not permit the operation of, an Australian registered aircraft in breach of the requirements of an Airworthiness Directive.
Exemptions from CASR 1998
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 on its own initiative. 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 World Wide Web. 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.
Background
The United States Federal Aviation Administration (the FAA) issued an airworthiness directive that required the removal or discharging of the emergency oxygen generators installed in transport category aircraft engaged in commercial passenger carrying operations. The FAA limited the applicability to operations within US airspace. The basis for the airworthiness directive was a perceived vulnerability identified by a US law enforcement agency. There was no evidence of a realistic threat or increased risk associated with this vulnerability.
The Canadian authorities subsequently issued CF 2011-03 (the AD), an airworthiness directive that was closely aligned to the FAA. The applicability went significantly further in that it was to apply to not only all transport category aircraft in Canadian airspace but also to all Bombardier Inc. aircraft engaged in commercial passenger operations.
Advice from the Office of Transport Security confirmed there was no information available to suggest that the removal of the oxygen generators is based on a known security threat or substantive vulnerability and, therefore, they do not intend to take any action from a security perspective.
The removal of the emergency oxygen generators from aircraft toilets decreases the level of safety existing on these aircraft. As there has been no evidence to support the potential threat posed by this equipment, CASA does not agree with the actions taken by other national airworthiness authorities.
Current provisions within Part 39 of CASR 1998 do not allow for a Foreign State of Design Airworthiness Directive to be rejected for any reason.
Details of exemption instrument
This exemption applies to the pilot in command and the operator of an Australian registered Bombardier Inc. aircraft (the aircraft) to which the AD applies.
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 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 has not occurred in this case. The exemption removes a requirement to comply with an Airworthiness Directive that decreases the level of aviation safety.
Commencement
The instrument commences on the day after it is registered and ceases to have effect 2 years after commencement or on the revocation of the AD, whichever is the earlier.
The exemption has been made by the Executive Manager, Standards Development and Future Technology Division, a delegate of CASA, in accordance with regulation 11.260 of CASR 1998.
[Instrument number CASA EX39/11]