Explanatory Statement
Civil Aviation Regulations 1988
Amendment of instrument CASA EX79/09 – Exemption – take-off with residual traces of frost and ice
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.
Legislation
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”.
Under subregulation 308 (1) of CAR 1988, CASA may 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 must take into account any relevant considerations relating to the interests of safety. Under subregulation 308 (3), CASA may make an exemption subject to any condition specified in the exemption as being necessary in the interests of safety.
Instrument
Having taken into account all relevant safety considerations, CASA is satisfied that larger aircraft may be able to operate safely on take-off with residual traces of snow, frost and ice, provided the pilot in command complies with certain safety procedures. The principal instrument (CASA EX79/09), therefore, permits an aircraft operated by Pionair Australia Pty Ltd, with a maximum take-off weight of more than 5 700 kg, 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.
The principal instrument referred only to regular transport operations. It was intended that the exemption apply to all operations conducted by the operator. Accordingly this instrument amends the principal instrument by omitting the reference to regular transport operations.
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. Under subregulation 308 (4) of CAR 1988, an exemption is a disallowable instrument. The exemption is, therefore, a legislative instrument and 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. The instrument amends the principal instrument CASA EX79/09 by widening its application to cover all operations, as was the original intention.
The instrument comes into effect on the day after it is registered. It stops having effect at the end of 30 September 2011.
The exemption has been made by a delegate of CASA under subregulation 7 (1) of CAR 1988.
[Instrument number CASA EX85/09]
Overview
The Civil Aviation Regulations 1988 (CAR 1988) Amendment (Exemption – Take-off with Residual Traces of Frost and Ice) Instrument 2009 (F2009L03856) was enacted to address the problem of potentially unsafe take-offs due to residual traces of frost and ice on larger aircraft. This instrument, developed under the authority of the Civil Aviation Act 1988, empowers the Civil Aviation Safety Authority (CASA) to issue exemptions to specific safety regulations, provided certain safety conditions are met. The primary objective of this amendment was to ensure that larger aircraft could operate safely while taking off with residual traces of snow, frost, and ice, provided stringent safety procedures were followed by the pilot in command.
The Australian Parliament is the enacting body for this instrument, which aims to enhance aviation safety by allowing exemptions to certain regulations while maintaining strict safety standards. The policy objective is to balance the operational efficiency of larger aircraft with the paramount importance of flight safety. By amending the principal instrument CASA EX79/09, this legislation expands the scope of the exemption to cover all operations by Pionair Australia Pty Ltd, rather than just regular transport operations, thus ensuring the exemption aligns with the original intent.
Scope and Application
The Civil Aviation Regulations 1988 Amendment of Instrument CASA EX79/09, as amended by CASA EX85/09, pertains to specific exemptions from certain provisions of the Civil Aviation Regulations 1988, particularly focusing on the take-off requirements for aircraft with residual traces of snow, frost, and ice. This amendment applies to aircraft operated by Pionair Australia Pty Ltd that have a maximum take-off weight exceeding 5,700 kg. The exemption allows such aircraft to take off with residual snow, frost, and ice, provided that the pilot in command adheres to prescribed safety conditions. These conditions include ensuring that appropriate de-icing and anti-icing procedures have been followed and that any residual snow, frost, or ice will not impair the aircraft's performance or the functionality of its equipment or instruments. The exemption is made under the authority granted by Section 98 of the Civil Aviation Act 1988, which empowers the Governor-General to make regulations for aviation safety. The exemption is a legislative instrument subject to tabling and disallowance in the Parliament under the Legislative Instruments Act 2003. This instrument applies nationwide and is in effect from the day it is registered until the end of 30 September 2011.
Key Provisions
The primary operative sections of the Civil Aviation Regulations 1988 (CAR 1988) are paragraph 244(1)(c) and subregulation 308(1). Paragraph 244(1)(c) mandates that the pilot in command of an aircraft must ensure that all external surfaces are "completely free from frost and ice" before taking off. Subregulation 308(1) allows the Civil Aviation Safety Authority (CASA) to exempt aircraft or persons associated with the operation of the aircraft from specified provisions of CAR 1988, provided safety considerations are taken into account. This exemption is subject to specific conditions that CASA may impose to ensure safety.
The obligations imposed by the Act require that, under the amended instrument (CASA EX79/09), the pilot in command of an aircraft operated by Pionair Australia Pty Ltd, with a maximum take-off weight of more than 5,700 kg, must ensure that appropriate de-icing and anti-icing procedures have been used to remove all but residual snow, frost, and ice from the aircraft. Before taking off, the pilot must also be satisfied that any residual snow, frost, or ice will not affect the aircraft's performance or any of its equipment or instruments. This regulation applies to all operations conducted by the operator, not just regular transport operations, as clarified by the amendment.
Under the amended instrument, there are no specific offences or penalties detailed for breaches of the conditions set out in the exemption. However, any failure to comply with the safety procedures outlined in the exemption could potentially result in safety violations under CAR 1988, which could lead to enforcement actions by CASA. The maximum penalties for non-compliance with CAR 1988 generally include fines and imprisonment, as outlined in the Civil Aviation Act 1988 and the Civil Aviation Regulations 1988. CASA has the authority to take appropriate action to ensure compliance with aviation safety standards.