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ICAOICAO
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