Explanatory Statement
Civil Aviation Safety Regulations 1998
Part 90 Manual of Standards Amendment Instrument 2017 (No. 1)
Purpose
The purpose of the Part 90 Manual of Standards Amendment Instrument 2017 (No. 1) (Part 90 MOS Amendment) is to prescribe or amend airworthiness requirements for aircraft, primarily in relation to flight crew seating requirements, emergency exit requirements and the carriage of fire extinguishers, as contained in the Part 90 Manual of Standards (Part 90 MOS). The Part 90 MOS Amendment is made under Part 90 of the Civil Aviation Safety Regulations 1998 (CASR) and aligns with regulatory changes made to that Part through the Civil Aviation Safety Amendment (Part 90) Regulations 2017 (Part 90 Amendment).
The key changes made by the Part 90 MOS Amendment are as follows:
- changes that will reduce the number of routine exclusions issued by CASA under regulation 90.010 of CASR for aircraft meeting acceptable foreign airworthiness standards without compromising Australian aviation safety
- changes regarding the replacement of Halon fire extinguishing agents. The new requirement bans the use of Halon fire extinguishing agents from aircraft lavatories and hand-held fire extinguishers for new production aircraft from 31 December 2018.
- clarification of terminology to align Part 90 MOS requirements with other civil aviation legislation requirements, as well as other minor textual changes and referencing improvements in accordance with drafting best practice.
Legislation
Under subsection 98 (1) of the Civil Aviation Act 1988 (the Act), the Governor‑General may, among other things, make regulations prescribing matters required, permitted, necessary or convenient for the Act and in the interests of the safety of air navigation. The Civil Aviation Regulations 1988 and CASR are made under the Act.
Under regulation 90.020 of CASR, CASA may issue a Manual of Standards for Part 90 of CASR that prescribes matters required or permitted by the regulations to be prescribed, or prescribe matters necessary or convenient to be prescribed for carrying out, or giving effect to, Part 90. This power is supplemented by other provisions, throughout Part 90, which empower CASA to prescribe specific matters in the Part 90 MOS. The Part 90 Amendment introduces additional specific powers for CASA to prescribe, in the Part 90 MOS, types of aircraft that need to be equipped with a single shoulder strap harness, and fire extinguishing agents which are prohibited on aircraft.
Under subsection 33 (3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument. In this case, regulation 90.020 is the power for the making of the Part 90 MOS Amendment which is the same power for the making of the Part 90 MOS.
Part 90 MOS Amendment
The Part 90 MOS Amendment makes 32 changes to the Part 90 MOS. The majority of these changes remove past commencement dates for certain provisions, revise headings, clarify cross-references to Part 90 regulations or make minor editorial amendments. The more substantive changes are described below.
Item 6 (paragraph 4 (b)) harmonises the requirement for a cabin crew seat to provide a direct view of the cabin area to the extent possible without compromising proximity to a required floor level emergency exit with the US Federal Aviation Regulations (FAR). Paragraph 4 (b) of the Part 90 MOS created unintentional confusion in industry on whether there was a difference in requirements with the FAR. There is no such intention for a difference and CASA is aligning the text of the provision to when it was first consulted with industry in April 2003 (refer to consultation document NPRM 0305CS).
Item 7 (sections 5A and 5B) permits a single shoulder strap harness alternative for the cockpit observer’s seat for 4 types of aircraft, the DHC-8, the Fokker 27, the Fokker 28 and the SAAB 340. This alternative has been standard practice in accordance with exclusions issued by CASA under regulation 90.010 of CASR. The technical basis of these exclusions are being incorporated into the Part 90 MOS.
Item 7 (sections 5C and 5D) clarifies emergency exit requirements to ensure that emergency exits must be of sufficient size to allow the passage of an elliptical object of a minimum size of 483 mm by 660 mm rather than the whole opening. This is not a new requirement being imposed on industry.
Item 7 (sections 5E and 5F) prescribes fire extinguishing agents that contain a substance in Group II of Annex A: Controlled substances of the 8th Edition of the Montreal Protocol on Substances that Deplete the Ozone Layer (the Montreal Protocol) as being prohibited for carriage in lavatory fire extinguisher and hand-held fire extinguishers. This amendment has the effect of banning Halon fire extinguishing agents, which aligns Australia’s requirements with Standards and Recommended Practices of the International Civil Aviation Organization (ICAO). This new requirement comes into effect on 31 December 2018.
In accordance with subregulation 98 (5D) of the Act, the 8th Edition (2009) of the Montreal Protocol, including Annex A, is incorporated by reference. The Montreal Protocol is freely available through the website of the Ozone Secretariat of the United Nations Environment Program, at: http://ozone.unep.org/en/treaties-and-decisions/montreal-protocol-substances-deplete-ozone-layer.
Item 10 (new subsection 10.4) inserts a requirement that the escape device for an aeroplane, whose type certificate application was filed on or after 1 May 1972, must meet design requirements under which the aeroplane was type certificated. Section 10 of the Part 90 MOS details requirements for aircraft certified before 1 May 1972. The new subsection 10.4 simply clarifies that for aircraft certified on or after 1 May 1972, the escape devices installed on those aircraft must meet type certificate requirements.
Certain aircraft models, including the A319, were not captured by regulatory requirements as a result of lack of harmonisation of standards between the US Federal Aviation Regulations (on which the Australian regulatory standards are based) and the then European Joint Aviation Authorities (now European Aviation Safety Authority). The removal of references to 2 June 1992 by amendment items 12, 16, 18, and 20 has the effect of capturing these aircraft. None of these aircraft models operate in Australia and the amendment is editorial in nature.
Item 13 amends paragraph 17.1 (b) of the Part 90 MOS to reduce triple seat passageway widths at Type III overwing exits from 508 mm to 330 mm. This is based on extensive overseas research and has been in use in Australia since the late 1990s in alignment with the minimum requirements prescribed by EASA and the FAA. This reduction was also the subject of routine exclusions issued by CASA under regulation 90.010 of CASR and is being incorporated into the Part 90 MOS.
Finally, item 28 amends section 55 of the Part 90 MOS to clarify that the two options for regulatory compliance is either regulation 25.729 of the FAR as in force on 6 January 1992, or alternatively, any subsequent version of regulation 25.729 of the FAR after 6 January 1992. The amendment provides a new method of compliance to clarify that compliance with requirements of regulation 25.729 of the FAR after 6 January 1992 will be satisfactory.
Legislation Act 2003
Under paragraph 98 (5A) (b) of the Act, regulations made for that provision may empower CASA to issue instruments in relation to the airworthiness of, or design standards for, aircraft. Under paragraph 98 (5B) (b), an instrument issued under paragraph 98 (5A) (b) is a legislative instrument if the instrument is, or relates to, an airworthiness standard.
For paragraph 98 (5A) (b) of the Act, CASR 90.020 empowers CASA to issue the Part 90 MOS which prescribes airworthiness standards and is a legislative instrument. Paragraph 10 (1) (d) of the Legislation Act 2003 (the LA) provides that an instrument will be a legislative instrument if it includes a provision that amends another legislative instrument. Therefore, the Part 90 MOS Amendment is a legislative instrument subject to tabling and disallowance in the Parliament under sections 15G, 38 and 42 of the LA.
Consultation
Following the making of Part 90 of CASR and Part 90 MOS in 2010, CASA initiated a Post-Implementation Review in 2014. This review, in consultation with the Certification Subcommittee of the CASA Standards Consultative Committee, identified several areas of Part 90 that could be improved. Meanwhile, ICAO had issued Amendment 103 of Annex 8 which included the banning of Halon from certain fire extinguishing systems. In November 2016, CASA prepared and released for public consultation a draft of the Part 90 Amendment and Part 90 MOS Amendment as part of consultation draft CD1613CS. A total of 3 comments were received on the draft Part 90 MOS Amendment after a 4 week period of consultation, and were considered by CASA for incorporation into the Part 90 MOS Amendment.
CASA is satisfied that its consultation on the Part 90 MOS Amendment is appropriate for section 17 of the LA.
Office of Best Practice Regulation (OBPR)
OBPR assessed that the proposed amendments have a minor or machinery impact and that no further analysis in the form of a Regulation Impact Statement is required (OBPR ID: 21075).
Statement of Compatibility with Human Rights
The Statement in Appendix 1 is prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The legislative instrument does not directly engage any of the applicable rights or freedoms, and is compatible with human rights, as it does not directly raise any human rights issues.
Commencement and making
The Part 90 MOS Amendment commences on the day after registration on the Federal Register of Legislation.
The Part 90 MOS Amendment has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
[Part 90 Manual of Standards Instrument 2017 (No. 1)]
Appendix 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Part 90 Manual of Standards Amendment Instrument 2017 (No. 1)
Overview of the legislative instrument
The purpose of the Part 90 Manual of Standards Amendment Instrument 2017 (No. 1) (Part 90 MOS Amendment) is to prescribe matters for the airworthiness of aircraft in addition to their certification basis. The Part 90 Manual of Standards (Part 90 MOS) has been made under Part 90 of the Civil Aviation Safety Regulations 1998 (CASR) and sets out technical requirements that apply to aircraft set out in Part 90 of CASR.
Part 90 MOS prescribes standards and requirements for aircraft in various airworthiness categories related to aircraft mechanical system and cabin safety.
Human rights implications
The 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. The instrument does not engage any of the applicable rights or freedoms. The matters prescribed in the Part 90 MOS Amendment are in respect of aircraft and aviation safety requirements for the purpose of preserving passenger life and safety.
Conclusion
This legislative instrument is compatible with human rights as it does not raise any human rights issues. The Part 90 MOS Amendment ensures that the operation of aircraft is conducted in accordance with acceptable procedures and standards.
Civil Aviation Safety Authority