Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — take-off with residual traces of frost and ice
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and the safety of air navigation.
Under paragraph 244 (1) (c) of the Civil Aviation Regulations 1988 (CAR 1988), immediately before taking off, the pilot in command of an aircraft must ensure that all external surfaces of the aircraft are “completely free from frost and ice”.
Subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998) provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the regulations, including CAR 1988, in relation to a matter mentioned in that subsection. Under subregulation 11.160 (2), an exemption may be granted to a person, or to a class of persons, and may specify the class by reference to membership of a specified body or any other characteristic.
Under subregulation 11.205 (1) of CASR 1998, CASA may impose conditions on an exemption if this is necessary in the interests of the safety of air navigation. Under regulation 11.225 of CASR 1998, an exemption must be published on the Internet. Under subregulation 11.230 (1), an exemption ceases on the day specified within it (but no longer than 3 years after its commencement) or, if no day is specified, 3 years after commencement.
Instrument
Having taken into account all relevant safety considerations, CASA is satisfied that larger aircraft engaged in regular public transport (RPT) operations may safely take off with residual traces of snow, frost and ice, provided the pilot in command complies with certain safety procedures. The exemption, therefore, permits an aircraft with a maximum take-off weight of more than 5 700 kg that is engaged in RPT operations to take off with residual traces of snow, frost and ice subject to safety conditions.
Conditions
Under these conditions, before taking off, the pilot in command must ensure that appropriate de-icing and anti-icing procedures, in accordance with the aircraft flight manual or the manufacturer’s instructions and data, have been used to remove all but residual snow, frost and ice from the aircraft. To ensure that there has been no subsequent build-up of snow, frost or ice, immediately before taking off, he or she must also be satisfied that any residual snow, frost or ice will not affect the performance of the aircraft or any of its equipment or instruments.
Legislative Instruments Act
For subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from compliance with a provision of the Regulations. An instrument issued under paragraph 98 (5A) (a) of the Act is a legislative instrument if the instrument is expressed to apply to a class of persons or aircraft. The exemption applies to a class of aircraft employed by the operator. The exemption is, therefore, a legislative instrument subject to tabling and disallowance in the Parliament under sections 38 and 42 of the Legislative Instruments Act 2003 (the LIA).
Consultation
In 2011, CASA published a draft of proposed amendments to Part 91 of CASR 1998,
which included proposed standards relating to frost, ice and snow adhering to an aircraft, and invited comments from the aviation industry and the general public on the draft amendments. This instrument takes into account any comments received in response to that consultation.
Further consultation under section 17 of the LIA has not been undertaken specifically for this instrument. The instrument remakes instrument CASA EX59/11, which had similar scope and effects and which expires at the end of June 2013.
CASA is satisfied that no further consultation is appropriate or necessary in these circumstances.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required because the exemption is covered by a standing agreement between CASA and OBPR under which a RIS is not required for exemptions (OBPR id: 14507).
Making and commencement
The exemption has been made by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR 1998.
The instrument commences on 1 July 2013. It expires at the end of 30 June 2016, as if it had been repealed by another instrument.
[Instrument number CASA EX70/13]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — take-off with residual traces of frost and ice
This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the legislative instrument
The legislative instrument permits an aircraft with a maximum take-off weight of more than 5 700 kg that is engaged in regular public transport operations to take off with residual traces of snow, frost and ice. The exemption is subject to conditions directed by CASA in the interest of safety, including that the pilot in command must ensure that appropriate procedures have been used and be satisfied that any residual traces of snow, frost or ice will not affect the performance of the aircraft.
The primary purpose of the legislative instrument is to continue to allow those aircraft to take off even though they are not completely free from frost and ice, subject to compliance with the stated conditions.
Human rights implications
This legislative instrument does not engage any of the applicable rights or freedoms.
Conclusion
This legislative instrument is compatible with human rights as it does not raise any human rights issues.
Civil Aviation Safety Authority