Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — for Boeing 717 flight data recorder system
Purpose
This instrument exempts Boeing 717 aeroplanes (the aeroplanes) operated by registered operators from certain requirements in Civil Aviation Order 20.18 (CAO 20.18) for the continuous operation of the aeroplane’s flight data recorder (FDR) system.
Legislation — recording equipment
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 subsection 98 (5A) of the Act, the regulations may empower CASA to issue instruments in relation to “(a) matters affecting the safe navigation and operation, or the maintenance, of aircraft”, and “(b) the airworthiness of, or design standards for, aircraft”.
Under subregulations 207 (2) and (4) of the Civil Aviation Regulations 1988 (CAR 1988), a person must not use an Australian aircraft in a class of operation if the aircraft is not fitted with and carrying equipment that CASA has approved and directed, having regard only to the safety of air navigation. Under subregulation 207 (3) of CAR 1988, the person must fit, carry and use the equipment only in accordance with CASA’s directions.
Under subregulation 5 (1) of CAR 1988, where CASA is empowered under CAR 1988 to issue a direction, CASA may issue the direction in a Civil Aviation Order (CAO). CAO 20.18 contains directions for aircraft equipment including its basic operational requirements. Subsection 6 deals with aircraft recording equipment. Relevantly, under paragraph 6.1, a turbine powered aircraft, first certificated in Australia after 1 July 1965, with a maximum take-off weight (MTOW) in excess of 5 700 kg must not be flown unless equipped with an FDR system.
Under paragraph 6.3 of CAO 20.18, for such an aircraft, the FDR system must be operated continuously from the moment when the aircraft commences to taxi under its own power for the purpose of flight until the conclusion of taxiing after landing.
Legislation — exemptions
Subpart 11.F of the Civil Aviation Safety Regulations 1998 (CASR 1998) (as amended from 27 June 2011 by the Civil Aviation and Civil Aviation Safety Amendment Regulations 2011 (No. 2)) deals with exemptions.
Under subregulation 11.160 (1) of CASR 1998, and for subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from a provision of CAR 1988, CASR 1998 or a CAO in relation to a matter mentioned in subsection 98 (5A).
Under subregulation 11.160 (2) of CASR 1998, an exemption may be granted to a person or a class of persons. Under subregulation 11.160 (3), CASA may grant an exemption on application, or on its own initiative. For an application for an exemption under subregulation 11.170 (3) of CASR 1998, CASA must regard as paramount the preservation of an acceptable level of safety. For making a decision on its own initiative, CASA is guided by the requirement in subsection 9A (1) of the Act that in exercising its powers and functions CASA must regard the safety of air navigation as the most important consideration.
Under regulation 11.205 of CASR 1998, CASA may impose conditions on an exemption if necessary in the interests of the safety of air navigation. Under regulation 11.210, it is a strict liability offence not to comply with the obligations imposed by a condition. Under regulation 11.225, CASA must, as soon as practicable, publish on the Internet details of all exemptions under Subpart 11.F.
Under subregulation 11.230 (1), an exemption (but not an exceptional circumstances exemption for regulation 11.185 about major emergencies) may remain in force for 3 years or for a shorter period specified in the instrument.
Under subregulation 11.230 (3), an exemption, in force in relation to a particular aircraft owned by a particular person, ceases to be in force when the aircraft ceases to be owned by that person. Under regulation 11.235, an exemption is not transferable (as between operators, aircraft etc.).
Background
Boeing 717 aeroplanes have a MTOW in excess of 5 700 kg. A small number of these aeroplanes operate in Australia. The aeroplane type is designed in such a way that application of the parking break discontinues operation of its FDR system until the parking break is released. There is nothing inherently dangerous or unsafe about this design and the aeroplane’s FDR system is compliant with the requirements for such systems in the USA where it was manufactured. However, as such, the discontinuity renders the aeroplane non-compliant with paragraph 6.3 of CAO 20.18.
Modifications could be retro-fitted to the aeroplane’s FDR system to make it compliant. However, these would incur high costs relative to the marginal benefits of having FDR system data for those relatively short periods during manoeuvring on the ground for take-off or for arrival at the terminal, when the parking break is applied.
CASA considers that for the small numbers of aircraft involved, and given that the limitation is known, there is no risk to safety in exempting the aircraft from the requirement in paragraph 6.3 of CAO 20.18 for continuous operation of the FDR system when the parking brake is applied.
Exemption
The exemption, therefore, exempts Boeing 717 aeroplanes operated by registered operators, from compliance with paragraph 6.3 of CAO 20.18 for the continuous operation of the FDR system — but only to the extent that the FDR system would otherwise be required to operate while the aeroplane’s parking brake is applied.
An added condition requires that the registered operator must ensure that, apart from the exemption, paragraph 6.3 of CAO 20.18 is otherwise complied with, that is, there must be continuous operation of the FDR system at all relevant times other than when the parking brake is applied.
The exemption is expressed to operate until the end of 31 July 2014. Details of the exemption are set out in Appendix 1.
Legislative Instruments Act
As noted above, exemptions under Subpart 11.F of CASR 1998 are “for subsection 98 (5A)” of the Act, that is, for regulations which empower the issue of certain instruments, like exemptions, in relation to “(a) matters affecting the safe navigation and operation, or the maintenance, of aircraft”, and “(b) the airworthiness of, or design standards for, aircraft”.
The exemption is clearly one in relation to matters affecting the safe navigation and operation of aircraft. Under subsection 98 (5AA) of the Act, an exemption issued under paragraph 98 (5A) (a) for such matters is a legislative instrument if expressed to apply in relation to a class of persons, a class of aircraft or a class of aeronautical products (as distinct from a particular person, aircraft or product).
The exemption applies to a class of aircraft and is, therefore, a legislative instrument subject to registration, and tabling and disallowance in the Parliament, under sections 24, 38 and 42 of the Legislative Instruments Act 2003 (the LIA).
Consultation
Consultation under section 17 of the LIA was not considered necessary in this case because the exemption relieves registered operators of the relevant aeroplanes of an obligation, compliance with which would otherwise be impossible in the short to medium term.
Office of Best Practice Regulation (OBPR)
The exemption is of beneficial effect. OBPR does not require preparation of a Regulation Impact Statement in this case because a preliminary assessment of business compliance costs in the context of the nature of the instrument indicates that it will have only a nil to low impact on business.
Commencement and making
The exemption commences on the day after registration and stops having effect at the end of 31 July 2014.
The exemption has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
[Instrument number CASA EX91/11]
Appendix 1
Details of exemption instrument CASA EX91/11
1 Duration
Under this section, the instrument commences on the day after registration, and stops having effect at the end of 31 July 2014.
2 Application
Under this section, the instrument applies to each Boeing 717 aeroplane (the aeroplane) operated by a registered operator.
3 Exemption
Under this section, the aeroplane is exempt from compliance with paragraph 6.3 of CAO 20.18 for the continuous operation of an FDR system, but only to the extent that the FDR system would otherwise be required to operate while the aeroplane’s parking brake is applied.
4 Condition
Under this section, the registered operator must ensure that, apart from the exemption in section 3, paragraph 6.3 of CAO 20.18 is otherwise complied with.