ICAO Aerodrome Safety Workshop Almaty, Kazakhstan – 18 to 22 November 2002 ICAO SARPS State Obligations

Aerodrome Safety Workshop - Almaty, Kazakhstan - 18 to 22 November 2002 Legal position of a safety regulator in an ICAO contracting State (1) ICAO contracting States are signatories or adherents to the Chicago Convention, which applies only to civil aircraft.

Aerodrome Safety Workshop - Almaty, Kazakhstan - 18 to 22 November 2002 Legal position of a safety regulator in an ICAO contracting State (2)  The ICAO Annexes comprise, among other things, Standards and Recommended Practices (SARPS).  The uniform application of Standards is recognized as necessary for the safety or regularity of international air navigation.  Contracting States will conform to ICAO Standards in accordance with the Convention.

Aerodrome Safety Workshop - Almaty, Kazakhstan - 18 to 22 November 2002 Legal position of a safety regulator in an ICAO contracting State (3)  ICAO Standards are prescriptive in style and should be incorporated into national legislation and/or requirements.  If it is impracticable for a State to comply with a particular Standard, immediate notification to the ICAO Council is mandatory under Article 38 of the Convention (“filing a difference”).

Aerodrome Safety Workshop - Almaty, Kazakhstan - 18 to 22 November 2002 Legal position of a safety regulator in an ICAO contracting State (4)  The uniform application of Recommended Practices is recognized as desirable for the safety, regularity or efficiency of international air navigation.  There is no binding requirement to file a difference in case of non-compliance with Recommended Practices.

Aerodrome Safety Workshop - Almaty, Kazakhstan - 18 to 22 November 2002 Legal position of a safety regulator in an ICAO contracting State (5)  Contracting states are invited to extend such notification to any differences from the recommended practices contained in the Annexes and any amendments thereto, when the notification of such differences is important for the safety of air navigation  It should, however, be the policy of ICAO contracting States to deal with Standards and Recommended Practices in a similar way.

Aerodrome Safety Workshop - Almaty, Kazakhstan - 18 to 22 November 2002 The use of legislation and supporting material (1)  Legislation provides the Authority with a means to ensure that operators comply with ICAO provisions  Legislation is enforceable by law with penalties for infringements  In this presentation the definition of legislation refers to all the material that has legal status either via international or national law  The terms “regulations and rules” will not be used because of the different meanings they have in different fields

Aerodrome Safety Workshop - Almaty, Kazakhstan - 18 to 22 November 2002 The use of legislation and supporting material (2)  The legislation is supported by additional material such as Guidance Material, and in some States by acceptable means of compliance or Codes of Practice, which do not have a formal legal status  Most legislation is derived from international codes which are generally drafted in a prescriptive style  The provisions of ICAO Annex 14 are expected to be implemented in the legislation of contracting States

Aerodrome Safety Workshop - Almaty, Kazakhstan - 18 to 22 November 2002 The use of legislation and supporting material (3)  With the implementation of Recommended Practices the Authority has a choice to implement these in legally enforceable or non-legally enforceable material  In these cases the Authority can choose between legislation or non-legal material such as codes of practice  It is, however, desirable that contracting States implement Recommended Practices in an enforceable way so that the uniformity envisaged under Article 37 of the Chicago Convention can be achieved

Aerodrome Safety Workshop - Almaty, Kazakhstan - 18 to 22 November 2002 The use of legislation and supporting material (4)  Either choice has some advantages and disadvantages as an instrument for the safety regulator of an ICAO contracting State  However, as earlier stated, it ought to be the policy of ICAO contracting States to deal with Standards and Recommended Practices as much as possible in the same way  The inclusion of the requirements into legislation has the big advantage that they are easy enforceable

Aerodrome Safety Workshop - Almaty, Kazakhstan - 18 to 22 November 2002 The use of legislation and supporting material (5)  However in many countries it may take a long time to establish or change national legislation  Another often heard objection is that legislation is difficult to understand due to the legal language used  With an additional explanatory document on how the legal requirements should be interpreted, the safety regulator could overcome this objection

Aerodrome Safety Workshop - Almaty, Kazakhstan - 18 to 22 November 2002 The use of legislation and supporting material (6)  The non-legally binding supporting material could also be used to embody the requirements  The major advantage that supporting material has over legislation is timeliness and flexibility because changes can be achieved without going through extensive lawmaking processes and interpretations can be given without fear of infringement of the law

Aerodrome Safety Workshop - Almaty, Kazakhstan - 18 to 22 November 2002 The use of legislation and supporting material (7)  An important disadvantage of the various styles of supporting material is the possible loss of standardisation  Another important disadvantage is the fact that in some cases the supporting material includes requirements which the Authority requires an operator or a person to follow rather than being purely supportive  As far as the balance between legislation and supporting material is concerned, there will always be a need for a degree of legislation to give legal impact to the regulatory task

Aerodrome Safety Workshop - Almaty, Kazakhstan - 18 to 22 November 2002 The use of legislation and supporting material (8)  The Authority has, however, some competence to determine the extent to apply legislation  The choice whether to use legislation or non-legally enforceable material contains advantages and disadvantages, but there is no final good or evil in this matter  The most important question in relation to this choice for every Authority is the question whether the system works

Aerodrome Safety Workshop - Almaty, Kazakhstan - 18 to 22 November 2002 Regulatory style (1)  There are a wide range of styles according to regulatory philosophy, legal requirements, industry expertise and public expectation  The two extremes of regulatory style could be described as non-involvement/passive and on the other hand as total involvement/directive

Aerodrome Safety Workshop - Almaty, Kazakhstan - 18 to 22 November 2002 Regulatory style (2)  In the passive style the safety regulator sets requirements and only gets involved as a last resort either in terms of serving a notice for the particular operator/person to meet requirements or as a part of a prosecution action subsequent to an incident or accident in which the particular provider had not complied with requirements

Aerodrome Safety Workshop - Almaty, Kazakhstan - 18 to 22 November 2002 Regulatory style (3)  In the directive style, the arrangements would be for the regulator to set requirements and also have significant involvement in findings of compliance and issuing industry with licenses/certificates  The regulator would also get involved as part of an investigation in respect of an incident which could have lead to an accident and also as part of a prosecution action subsequent to an accident or incident

Aerodrome Safety Workshop - Almaty, Kazakhstan - 18 to 22 November 2002 Regulatory style (4)  In practice, regulation in aviation areas is somewhere between the two extremes, with variations according to the aviation industry sector and the degree of risk associated with the particular activity  This means that in high risk areas (in terms of potential harm) such as commercial air transport, the directive style should be used and in areas with minor risks, such as some areas of general aviation, the regulator could use the passive style

Aerodrome Safety Workshop - Almaty, Kazakhstan - 18 to 22 November 2002 Regulatory style (5)  The balance between both styles is a reflection of the relationship between the safety regulator and the operators and this balance can vary a bit in the ICAO contracting States  Requirements can be set as either prescriptive or objective based/goal setting

Aerodrome Safety Workshop - Almaty, Kazakhstan - 18 to 22 November 2002 Regulatory style (6)  The objective based requirements are requirements for which the means of achieving compliance are not specified, but goals are set allowing the potential for several means of achieving compliance  In prescriptive requirements the means of achieving compliance are specified

Aerodrome Safety Workshop - Almaty, Kazakhstan - 18 to 22 November 2002 Regulatory style (7)  Requirements can neither be considered as totally objective nor totally prescriptive  These terms should rather be considered as representing the degree of objectivity or prescription applicable to a requirement

Aerodrome Safety Workshop - Almaty, Kazakhstan - 18 to 22 November 2002 Regulatory style (8)  When drafting requirements, careful consideration should be given to the appropriate degree of objectivity or prescription and a number of factors should be taken into account in making this assessment  Objective requirements tend to be less restrictive but compliance is often difficult to demonstrate simply

Aerodrome Safety Workshop - Almaty, Kazakhstan - 18 to 22 November 2002 Regulatory style (9)  Objectivity is more appropriate: - Where technology or operating environment are evolving at a rate where prescriptive requirements could not keep pace and would probably be inadequate or inhibit innovation; - Where the maturity of the industry allows greater use of Safety Management Systems; - Where great variations in operating conditions or in feasible means of compliance would make the formulation of prescriptive requirements impracticable

Aerodrome Safety Workshop - Almaty, Kazakhstan - 18 to 22 November 2002 Regulatory style (10)  In many instances, compliance may be more readily demonstrated by having simple prescriptive requirements  Prescription is more appropriate: - Where the requisite level of safety may readily be obtained and demonstrated by the specification of simple criteria; - Where current prescriptive requirements have proven to achieve acceptable levels of safety without objection from the industry

Aerodrome Safety Workshop - Almaty, Kazakhstan - 18 to 22 November 2002 Procedure for the development of requirements (1) The elements of a comprehensive consultative process can be summarised:  There should be an internal procedure to ensure as far as possible that proposed requirements are acceptable, and to ensure that the priority given and the resources to be committed are appropriate  The regulator should involve the specific industry sector at the earliest possible stage in requirement development and comment processes  A formal consultation process should be published

Aerodrome Safety Workshop - Almaty, Kazakhstan - 18 to 22 November 2002 Procedure for the development of requirements (2)  The regulator should publish a requirements development plan with associated time scales  During the formal consultation process, the regulator should keep a record of all comments received and action taken with each comment

Aerodrome Safety Workshop - Almaty, Kazakhstan - 18 to 22 November 2002 Procedure for the development of requirements (3)  The regulator should reply to all comments on draft regulatory material in accordance with the service levels published in the formal rule making process  The record of comments received and the associated response should be a “public” document

Aerodrome Safety Workshop - Almaty, Kazakhstan - 18 to 22 November 2002 Procedure for the development of requirements (4)  The regulator should carry out regular reviews of the effectiveness of the consultation process  Another related consideration is that consultation can be treated as a process and could benefit from being administered by dedicated staff irrespective of the subject matter  This arrangement could utilise the staff in technical departments for content and drafting but employ the skills of business support, i.e. non-technical staff to provide editorial consistency and an efficient system of consultation