Explanatory Statement
Civil Aviation Regulations 1988
Exemption — refuelling with passengers on board
Legislation
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.
Subregulation 235 (7) of the Civil Aviation Regulations 1988 (CAR 1988) provides that CASA may, for the purposes of ensuring the safety of air navigation, give directions with respect to the method of loading persons and goods (including fuel) on aircraft.
Directions under subregulation 235 (7) of CAR 1988 are contained in Civil Aviation Order 20.9 (CAO 20.9). Section 4 of CAO 20.9 sets out particular directions for loading fuel on aircraft. Paragraph 4.2.3 of CAO 20.9 provides that the operator of an aircraft with a maximum seating capacity of less than 20 passengers must ensure that fuel is not loaded on to the aircraft while passengers are on board, or entering or leaving, the aircraft.
Subregulation 235 (11) of CAR 1988 provides that CASA may exempt an aircraft from any of the requirements imposed by regulation 235.
The Royal Flying Doctor Service Australia (South Eastern Section) (the operator), operates a number of Beechcraft Kingair aircraft (the aircraft). The aircraft, though certified for less than 20 passengers, carries a cabin attendant on all operations.
At some ports passengers have no right of entry to airport terminals and would therefore congregate on the hard stand while refuelling of the aircraft takes place. The ability to refuel while passengers remain on board would minimise risk.
Under paragraph 4.2.2 of CAO 20.9, passengers on aircraft with a maximum seating capacity of 20 or more are allowed to remain on board during refuelling if certain conditions are satisfied. These conditions are contained in subparagraphs 4.2.1, 4.2.2 and 4.2.5 of CAO 20.9. The operator’s operations manual contains procedures that meet all of the requirements of these subparagraphs.
The operator has been significantly affected by the requirements of paragraph 4.2.3 of CAO 20.9 that passengers may not remain on board during refuelling. The operator has, therefore, requested an exemption from the requirements of paragraph 4.2.3 of CAO 20.9.
In light of these matters, and taking account of the safety of air navigation, CASA has issued the exemption subject to certain conditions. For example, while passengers may remain on board when fuel is being loaded, they must not board or exit the aircraft. They must be told that fuel is being loaded, that their seat belts must be unfastened, and that there must be no smoking, use of electrical equipment or action that could ignite fuel vapour. They must be told the location of the emergency exits. The cabin door must be open and the aircraft and fuelling equipment connected to an earth point. At least 1 cabin attendant must be on duty in the aircraft and the pilot in command must be in the aircraft loading area. The “fasten seat belt” signs must be off. The loading of fuel must stop immediately if fuel vapour is found in the aircraft or if, for any reason, continuation of the loading is not safe.
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 this exemption affects the operation of paragraph 4.2.3 of CAO 20.9 the instrument is 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 this is reissue of a previous instrument. The exemption has been issued, at the request of the operator, to permit the refuelling of aircraft to minimise risk to passengers.
The exemption commences on the day after it is registered and stops having effect at the end of 30 November 2009.
The exemption has been issued by a delegate of CASA under subregulation 7 (1) of CAR 1988.
[Instrument number CASA EX84/2008]