Explanatory Statement
Civil Aviation Regulations 1988
Exemption — use of mobile phones and other electronic devices when loading fuel
Legislation
Under subsection 98 (1) of the Civil Aviation Act 1988 (the Act), the Governor-General may make regulations for the Act and the safety of air navigation.
Loading fuel
Under subregulation 235 (7) of the Civil Aviation Regulations 1988 (CAR 1988), to ensure safety, CASA may give directions about loading fuel on aircraft. Some of these directions are set out in Civil Aviation Order 20.9 (CAO 20.9). Under subregulation 235 (11), CASA may exempt an aircraft from any of the requirements imposed by regulation 235, including the directions under subregulation 235 (7).
Subsection 4 of CAO 20.9 sets out CASA’s directions under subregulation 235 (7) of CAR 1988 for loading fuel on aircraft. Under paragraph 4.2.2 of CAO 20.9, the operator of an aircraft with a maximum seating capacity of 20 or more must ensure that fuel is not loaded while passengers are on board unless certain conditions are met. One condition, in sub‑subparagraph 4.2.2 (a) (iii), is that passengers must be told that they may not use any electrical equipment (as this might cause fuel vapours to ignite). Under subparagraph 4.2.2 (b), passengers must obey this instruction.
Under subparagraph 4.4.3 (b) of CAO 20.9, a person must not, and the pilot in command and the operator must take reasonable steps to ensure that the person does not, operate electrical equipment within 15 metres of the aircraft’s fuel tank filling points, vent outlets or ground fuelling equipment unless the equipment has been inspected and complies with Appendix I of CAO 20.9.
Under subregulation 308 (1) of CAR 1988, CASA may exempt an aircraft, and persons in it or associated with its operation, from compliance with specified provisions of CAR 1988. Under subregulation 308 (2), before CASA decides to give an exemption, CASA must take into account all relevant considerations relating to the interests of safety. Subregulation 308 (3) provides that an exemption may be made subject to any conditions necessary in the interests of safety. Under these provisions, it is possible to relax certain aviation rules and provide conditional alternatives if it is safe to do so.
Exemption and conditions
The exemption applies only to a turbine engine aircraft with a payload capacity of 3 410 kg or more during refuelling (the aircraft), and to the operator, operations personnel, crew and passengers of such aircraft. The exemption exempts these persons from certain provisions of CAO 20.9 which would otherwise prevent the use of certain electronic devices in the cabin of, or outside, the refuelling aircraft. The devices are defined as digital mobile telephones, handheld personal digital assistants, devices that transmit using only IEEE 802.11 wireless standard technology and any portable electronic devices not designed to produce a radio frequency emission.
The exemption is subject to conditions inside the cabin and outside the cabin so that a device may only be used in restricted circumstances. Outside the cabin, these restrictions are based on the concept of a fuelling zone within which the devices must not be used. The fuelling zone is defined in the instrument as the area that is within 3 metres radially from fuel filling or venting points or fuelling equipment.
Inside the cabin
The conditions provide that a person may only use a device in the cabin of the aircraft if the person complies with the conditions. The pilot in command must give permission for the use and the use must stop if the permission is withdrawn. The pilot in command may only give permission if all doors within the fuelling zone are closed and if the aircraft operator has already ensured that radio frequency emissions will not affect aircraft systems, or if they may do so, the effects are corrected by established procedures before the engines start.
Outside the cabin
The conditions also provide that only a designated member of the aircraft operator’s operations personnel (a designated operations person) may use a device outside the cabin of the aircraft and then only subject to restrictions.
The person may only use a device outside the cabin of the aircraft if it is used outside the 3 metre fuelling zone. The aircraft operator must have trained the person how to identify the fuelling zones associated with relevant aeroplanes, not to use a device within those zones, to be aware of risks associated with distraction when using a device and how to mitigate those risks. The aircraft operator must have already ensured for the operation, or a class of operations including the operation, that radio frequency emissions will not affect the aircraft’s systems or that procedures are established that will correct any effect the emissions may have before the engines are started.
Legislative Instruments Act
Under regulation 308 of CAR 1988, an exemption is declared to be a disallowable instrument. The exemption will also affect the operation of sub-subparagraph 4.2.2 (a) (iii), subparagraph 4.2.2 (b) and subparagraph 4.4.3 (b) of CAO 20.9. Under subregulation 5 (1) of CAR 1988, if an instrument affects the operation of anything in a Civil Aviation Order, it is declared to be a disallowable instrument.
Under paragraph 6 (d) (i) of the Legislative Instruments Act 2003 (the LIA), an instrument is a legislative instrument if it is declared to be a disallowable instrument by legislation in force before the LIA. The instrument is, therefore, a legislative instrument and as such is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
Consultation has not been undertaken because the instrument is similar to a general exemption granted to operators of turbine engine aircraft with a seating capacity of 20 or more except that this instrument refers to payload and seating capacity as the operator conducts freight carrying operations.
The instrument commences on the day after registration and stops having effect at the end of 31 August 2011.
The instrument has been issued by a delegate of CASA under subregulation 7 (1) of CAR 1988.
[Instrument number CASA EX78/09]