Explanatory Statement
Civil Aviation Regulations 1988
Revocation of exemptions for fuelling
Purpose
The purpose of this instrument is to revoke 2 exemptions, the requirement for which has been superseded by an amendment to paragraph 4.3.4 of Civil Aviation Order (CAO) 20.9 concerning fuelling of aircraft.
Legislation — Act and CAR 1988
Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides that the Governor-General may make regulations for the Act and in the interests of the safety of air navigation.
Under subregulation 235 (7) of the Civil Aviation Regulations 1988 (CAR 1988), CASA may, for the purpose of ensuring the safety of air navigation, give directions with respect to the method of loading persons and goods, including fuel, on aircraft. CASA has given relevant directions concerning the loading of fuel in subsection 4 of CAO 20.9, which deals, among other things, with precautions in fuelling in air service operations.
Legislation — exemptions
Before 27 June 2011, under subregulation 308 (1) of CAR 1988, CASA could exempt aircraft, or persons in, on, or otherwise associated with the operation of, the aircraft, from compliance with specified provisions of CAR 1988. Under subregulation 308 (2), before making an exemption, CASA had to take into account any relevant considerations relating to the interests of safety. Under subregulation 308 (3), CASA had to make an exemption subject to any condition specified in the exemption as being necessary in the interests of safety. Under subregulation 308 (3A), it was an offence to contravene a condition of an exemption that was otherwise being relied upon for an operation.
Legislation — amendment regulations
On 27 June 2011, the Civil Aviation and Civil Aviation Safety Amendment Regulations 2011 (No. 2) came into effect. Regulation 308 of CAR 1988 was repealed and the 2 separate powers to issue an exemption from a provision of CAR 1988, and to issue an exemption from a provision of the Civil Aviation Safety Regulations 1998 (CASR 1998), were unified in a single provision, namely, an amended regulation 11.160 of CASR 1998.
However, subregulation 202.011 (2) of CASR 1998, provides that despite the repeal of regulation 308 of CAR 1988, an exemption from compliance with a provision of CAR 1988 that was in force immediately before 27 June 2011, continues in force after that date according to its terms.
Subregulation 202.011G (1) of CASR 1998, provides, among other things, that an exemption mentioned in regulation 202.011 may be revoked under Subpart 11.F of CASR 1998 as if it were an exemption granted under Division 11.F.1.
Legislation — Acts Interpretation Act 1901 (AIA)
Subsection 33 (3) of the AIA provides, in effect, that where a person has a legislative power to make an instrument, he or she has the power to revoke the instrument in like manner.
Background
Directions under subregulation 235 (7) of CAR 1988 have recently been amended. Previously, paragraph 4.3.4 of CAO 20.9 provided that an aircraft, and all items of fuelling equipment, were to be connected in such a way as to ensure that they were of the same electrical potential. The paragraph stated that where a suitable earth point was available at the fuelling site, both the aircraft and the equipment are to be effectively connected to that earth point. Subparagraph (a) in paragraph 4.3.4, went on to mention that where a fuelling operation was performed by a barge to a seaplane, the barge was to be effectively connected to the aircraft in such a way as to ensure that the barge, the fuelling equipment and the aircraft were at the same electrical potential.
Appropriate fuelling procedures
Pumping highly refined products such as jet fuel or aviation gasoline (Avgas) for aircraft fuelling generates static electricity. However, the practice of earthing fuelling equipment as a means of dealing with this is no longer considered to be a state-of-the-art practice.
Many fuelling operations no longer follow the earthing practice because it is thought that electrical currents from aircraft devices (for example, auxiliary power units) should not be allowed to run through fuelling vehicles to earth but rather through separate earth paths away from fuel sources, which is not practical for fuelling vehicles. When fuelling operations cause differences in electrical potential between a fuelling vehicle (or other fuelling equipment) and the aircraft, bonding is considered to be the optimal method to allow equalization of electrical charges between the aircraft and the vehicle (or other equipment).
Bonding is the process of providing electrical continuity between the fuelling vehicle and the aircraft. This avoids the build-up of differences in electrical potential. It is such differences which give rise to the risk of release through a static spark which is “hot” enough to ignite fuel vapour in the right concentration. Fuel vapour is invariably present during fuelling operations.
The Australasian Aviation Ground Safety Council Incorporated (the AAGSC), in its Recommended Industry Practice (RIP) for working around aircraft during fuelling (RIP No. 22, issue 1, 1 November 2009), has highlighted the importance of correct bonding in fuelling operations. AAGSC has also alerted to the need to ensure that if the bonding wire is inadvertently disconnected from either the aircraft or the fuelling vehicle (or other fuelling equipment), the fuelling operation should be stopped until bonding is re‑established. In practice, a short period must be allowed before reconnecting the bonding wire — this is to allow for the dissipation of static electricity that may have built up.
Because of the changed scientific opinions on this matter, CASA has in the past provided exemptions to various operators whose fuel suppliers have advised them against the practice of earthing during aircraft fuelling as was required by paragraph 4.3.4 of CAO 20.9. The exemptions in question are CASA EX72/09 and CASA EX57/10.
The CAO amendment
Civil Aviation 20.9 Amendment Instrument 2011 (No. 1) (the CAO amendment) provides that when fuelling an aircraft, before a fuel tank cap is removed, the aircraft and all fuelling equipment must be bonded, and if bonding is lost, fuel transfer must be stopped immediately and not resumed until the bond is restored. A Note states that if bonding is lost care must be taken before reconnecting the bonding wire to allow for the dissipation of any static electricity that may have built up.
Revocation of relevant exemptions
The procedures mandated by the CAO amendment make the previous relevant exemptions redundant. Therefore, the instrument revokes them, using (to avoid doubt) powers expressed or implied in subregulation 202.011G (2) of CASR 1998, Division 11.F.1 of CASR 1998, and subsection 33 (3) of the AIA.
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.
Before 27 June 2011, under subregulation 308 (4) of CAR 1988, an exemption was a disallowable instrument The exemption was, therefore, a provision of a legislative character. The same rules applied to the revocation of such an exemption. The revocation of an exemption was a legislative instrument and, therefore, subject to registration, and tabling and disallowance in the Parliament, under sections 24, 38 and 42 of the LIA.
As noted above, subregulation 202.011G (1) of CASR 1998 provides that an exemption mentioned in regulation 202.011 (i.e. under repealed regulation 308) may be revoked under Subpart 11.F of CASR 1998 “as if it were an exemption granted under Division 11.F.1” of CASR 1998.
Under subregulation 11.160 (1) in Division 11.F.1 of CASR 1998, “for subsection 98 (5A), of the Act”, CASA may grant an exemption.
Subsection 98 (5A) of the Act provides that the regulations may empower CASA to issue instruments, generally speaking, in relation to aviation safety (which includes exemptions).
Under subsection 98 (5AA), such an instrument is a legislative instrument if expressed to apply to a class of aircraft, persons or aeronautical products.
Under subsection 98 (5AB), such an instrument is not a legislative instrument if expressed to apply to a particular person, aircraft or aeronautical product.
Each of the 2 exemptions in question applies to a particular airline operator, but, in effect, for all of their relevant aircraft as a class.
To avoid doubt, and because the 2 exemptions in question were originally treated as legislative instruments, CASA has decided to treat the revocation instrument as if it were a legislative instrument, subject to registration, and tabling and disallowance in the Parliament, under sections 24, 38 and 42 of the LIA.
Consultation
Consultation under section 17 of the LIA has been undertaken with the operators who previously had the benefit of the relevant exemptions.
Office of Best Practice Regulation (OBPR)
OBPR does not require preparation of a specific Regulation Impact Statement (RIS) because a preliminary assessment of business compliance costs indicates that the revocation instrument will have only a nil to low impact on business.
Commencement and making
The revocation instrument comes into effect on the day after registration.
The instrument has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
[Instrument number CASA EX67/11]