Explanatory Statement
Civil Aviation Regulations 1988
Exemption — refuelling with passengers on board
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.
Legislation
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), 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 not 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 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 of an aircraft with a maximum seating capacity of less than 20 may allow passengers to remain on board if their medical condition is such that they cannot leave the aircraft without assistance, the fuel is neither avgas nor aviation grade turbine fuel without an anti-static, and the conditions in paragraph 4.2.2 (i.e. applicable to an aircraft with over 20 passengers) are complied with.
One of these conditions, in sub-subparagraph 4.2.2 (i) of CAO 20.9, is that the fuel must be loaded using a system which transfers the fuel from its container to the aircraft’s fuel tank without exposing it to the air.
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.
Royal Flying Doctor Service
The Royal Flying Doctor Service (Western Operations) Incorporated (the RFDS) operates a number of aircraft which carry less than 20 passengers. Their aircraft carry passengers whose medical condition could deteriorate if they were required to leave the aircraft during refuelling. However, the aircraft are fuelled overwing and do not have a system which transfers the fuel from its container to the aircraft’s fuel tank without exposing it to the air. They, therefore, cannot comply with sub-subparagraph 4.2.2 (i) of CAO 20.9 and the RFDS cannot take advantage of paragraph 4.2.4 of CAO 20.9 which requires such compliance.
Exemption
The instrument exempts the RFDS from the requirements of paragraphs 4.2.3, 4.2.4, and, in effect, 4.2.2 of CAO 20.9. The exemption would be subject to a set of conditions and requirements that are similar to those in paragraph 4.2.2 except that overwing fuelling is permitted and cabin attendants, by definition, have a less prescribed role.
Conditions
The fuel in question must not be avgas or aviation grade turbine fuel without anti-static. The conditions are that while fuel is being loaded no passenger may enter or leave the aircraft, and generally no passenger may be on board the aircraft. However, a passenger is permitted to remain on board if his or her medical condition may deteriorate if he or she leaves the aircraft. In this case, certain requirements must be met.
Requirements
For example, before fuel is loaded, each person on board who is capable of understanding the information must be told that fuel is to be loaded. He or she must not smoke or use any electrical equipment (other than medical equipment which the pilot in command has agreed will not affect the safety).
While the fuel is loaded, the aircraft’s cabin door must be open and passenger loading equipment (if any) must be in position. The aircraft and the fuelling equipment must be earthed. The areas outside the aircraft that would be used if the aircraft were evacuated must be kept clear. If the fuel is loaded using an overwing system, the operator must take all reasonable precautions to reduce the fire hazard from the procedure. The operator must ensure that the loading of fuel stops immediately if fuel vapour is found inside the aircraft or if for any reason it is not safe to continue loading fuel.
Unless conducting the refuelling, the pilot in command of the aircraft must be in the aircraft loading area. A cabin attendant, or a person who is on board to provide medical care to a passenger, must be on duty in the aircraft. If the aircraft’s engine is running while the fuel is loaded, a member of the flight crew must be on duty on the flight deck.
The operator’s operations manual must include certain specified information and procedures about refuelling, including the terms of the instrument and an instruction that the procedures must be followed.
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 paragraphs 4.2.3 and 4.3.4 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 the instrument amends a previous instrument by removing an aircraft with nationality and registration marks VH-KFN and adding the PC-12 aircraft with nationality and registration marks VH-YWO.
The instrument commences on the day after it is registered and stops having effect at the end of 30 September 2008. The exemption has been issued by a delegate of CASA appointed under regulation 7 of CAR 1988.
[Instrument number CASA EX65/06]