Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption – from CAO 100.7 – requirement for aircraft to be weighed on scales calibrated by an accredited laboratory
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the safety of air navigation.
Regulation 5 of the Civil Aviation Regulations 1988 (CAR) empowers CASA to issue a direction, instruction, notification, or give a permission, approval or authority in the form of a Civil Aviation Order (CAO).
Subregulation 235 (1) of CAR provides that CASA may, for the purposes of the Regulations (CAR and the Civil Aviation Safety Regulations 1998 (CASR)), give directions setting out the method of estimating, with respect to an aircraft at any time, the weight of the aircraft, together with the weight of all persons and goods (including fuel) on board the aircraft at that time, and the centre of gravity of the aircraft at that time.
CAO 100.7 was made under the abovementioned provisions of CAR. Before 9 July 2015, paragraph 4.3 of CAO 100.7 required each scale to have been calibrated either by the manufacturer or a State Weights and Measures Authority (the SWMA) within a period of 1 year prior to weighing any aircraft, unless otherwise approved by a CASA airworthiness officer.
On 9 July 2015, Civil Aviation Order 100.7 Instrument 2015 repealed and replaced CAO 100.7. The current CAO 100.7 applies to all aircraft except balloons, airships, or aircraft that have been weighed in accordance with the approved procedures of an approved self-administering aviation organisation. Under paragraph 4.1 of CAO 100.7, aircraft weighing must be carried out under the control of a weight control officer (WCO) whose appointment covers the activity or a person referred to in paragraph 4.1A of CAO 100.7, being a person who has completed a CASA approved weighing procedures course, has practical experience, and weighs the aircraft on scales approved by CASA.
Under paragraph 4.3 of CAO 100.7, each scale must have been calibrated either by the manufacturer or by a laboratory that is accredited with the National Association of Testing Authorities Australia (NATA) or a similar national accreditation body that is a member of the International Laboratory Accreditation Cooperation (ILAC) within a period of 1 year before the weighing of any aircraft. The SWMA ceased to be a relevant weighing authority in 2009.
Subregulation 11.160 (1) of CASR provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the CAOs. 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, 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, 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.
Background
After the new CAO 100.7 came into effect on 9 July 2015, industry provided feedback to CASA advising that the National Measurement Institute (NMI), which was created in 2009 to perform the functions that were previously in the remit of the SWMA, is not accredited with NATA or ILAC. Other aviation industry equipment calibrating organisations may use various standards that may be traced to NATA, but those organisations are also not accredited. Consequently, weighing organisations and individuals in the aviation industry, whose primary business is to provide aircraft weight services, are unable to weigh aircraft to which CAO 100.7 applies (CAO 100.7 aircraft) using equipment that complies with CAO 100.7 until such time that NMI or other calibrating organisations receive NATA or ILAC accreditation.
CASA issued exemption CASA EX135/15 to exempt WCO and persons referred to in paragraph 4.1A of CAO 100.7 from compliance with the requirements of paragraph 4.3 of CAO 100.7. That exemption expires on 30 June 2017. CASA had intended to amend CAO 100. 7 before 30 June 2017 and proposes to commence consultation early in the second half of 2017.
Instrument
The instrument continues the exemption in instrument CASA EX135/15 for relevant persons to comply with paragraph 4.3 of CAO 100.7 when CAO 100.7 weighing aircraft. It has been redrafted to reflect changes in drafting style and to give better legal effect to CASA’s policy.
It is a condition of the exemption that when a WCO or person referred in paragraph 4.1A of CAO 100.7 (a responsible person) weighs a CAO 100.7 aircraft, they must use scales that have been calibrated in the previous year by 1 of the following:
- the manufacturer of the scales
- an organisation that is approved by the NMI for a purpose that covers the purpose of calibrating the scales
- an organisation using a reference standard where there is a valid certificate of verification for the reference standard issued under the National Measurement Regulations 1999
- an organisation using a reference standard where there is a valid calibration for the reference standard issued by an “accredited organisation”.
“Accredited organisation”, in relation to a reference standard, is defined in the instrument to mean an organisation accredited to calibrate the reference standard if the accreditation is issued by NATA or an organisation that is a full member of ILAC.
The instrument clarifies that a certificate mentioned in the condition is “valid” if any date on which the certificate is expressed to cease to be in effect has not passed, and if any date by which a new calibration is stated to be required has not passed. The clarification is intended to ensure that the various ways in which a certificate may express a period of validity can be captured so as to ensure that reference standards are not used beyond the intended period of calibration.
Legislation Act 2003 (the LA)
Paragraph 98 (5A) (a) of the Act provides that CASA may issue instruments in relation to matters affecting the safe navigation and operation or the maintenance of aircraft. Paragraph 98 (5AA) (a) provides that an instrument issued under paragraph 98 (5A) (a) is a legislative instrument if the instrument is expressed to apply in relation to a class of persons. The instrument is expressed to apply to classes of persons, namely WCOs and persons mentioned in paragraph 4.1A of CAO 100.7.
As a legislative instrument, it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
This instrument has been made following industry feedback on CAO 100.7. CASA assessed the implications of the industry feedback and recognised that an exemption was necessary until such time that NMI or other industry recognised calibrating organisations are accredited with NATA or ILAC for the purposes of compliance with CAO 100.7.
Aviation safety will not be adversely affected since weighing calculations and parameters for CAO 100.7 aircraft have not changed, only the accreditation aspect of the calibrating organisation is being addressed.
CASA proposes to soon amend CAO 100.7 to incorporate the substance of this exemption, at which time the exemption will no longer be required.
In these circumstances, it is CASA’s view that further consultation is not necessary or appropriate under section 17 of the LA.
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 instrument, which is minor or machinery in nature, is covered by a standing agreement between CASA and OBPR under which a RIS is not required (OBPR id: 14507).
Making and commencement
The exemption has been issued by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR.
The exemption commences on 1 July 2017 and will be repealed at the end of 30 June 2018.
[Instrument number CASA EX73/17]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption – from CAO 100.7 – requirement for aircraft to be weighed on scales calibrated by an accredited laboratory
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
This legislative instrument exempts persons weighing aircraft to which Civil Aviation Order 100.7 Instrument 2015 (CAO 100.7) applies from the requirement in CAO 100.7 that the weighing scales must be calibrated by a laboratory that is accredited with the National Association of Testing Authorities Australia or a similar national accreditation body that is a member of the International Laboratory Accreditation Cooperation. The exemption allows industry to weigh aircraft using scales that have been calibrated by the scales manufacturer or organisations described in the exemption.
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