ICAO SARPS State Obligations

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• ICAO SARPS State Obligations

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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.
  

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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.

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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).

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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.

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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.

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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