Civil Aviation Authority

International Standards set forth by the International Civil Aviation Organization (ICAO) say that discipline or punishment for people involved in an aviation accident or incident is appropriate only if evidence shows that the occurrence "was caused by an act considered, in accordance with the law, to be conduct with intent to cause damage, or conduct with knowledge that damage would probably result, equivalent to reckless conduct, gross negligence or willful misconduct."

ICAO also says that the only objective of an accident or incident investigation should be to prevent future accidents and incidents, not to determine blame or liability of anyone involved in the occurrence-and, international aviation leaders say, not to supply data to criminal prosecutors.

In many cases, the risk that the threat of criminal prosecution places on the future safety of air travel greatly may outweigh and societal benefit in satisfying the inherent human desire for revenge or punishment in the wake of a terrible loss. The same sentiments were expressed in an October 2006 resolution approved by Flight Safety Foundation, the Royal Aeronautical Society, the Academie Nationale deIAir et deIEspace and the Civil Air Navigation Services Organization.

The resolution said, "The paramount consideration in an aviation accident should be to determine the probable cause and contributing factors in the accident, not to punish criminally flight crews, maintenance employees, airline or manufacturer executives, regulatory officials or air controllers. By identifying the ‘what' and the ‘why' of an accident, aviation safety professionals will be better equipped to address accident prevention for the future. Criminal investigation can and do hinder the critical information –gathering portions of an accident investigation, and subsequently interfere with successful prevention of future aviation industry accidents."

The joint resolution may assist prosecutors to step back and see the wisdom in preserving an existing aviation safety system that has worked remarkably well in reducing aviation accidents.

Towards a just culture and accountable officers.

Since the approval of the resolution, prosecutors generally become less likely to file charges against "people on the line," Voss said. Instead, the emphasis appears to have shifted to managers who were accountable for failed systems, he said."This is more consistent with what we talk about in good safety practices-the concept of accountable executives," he said."However ,it does still have a little bit of a chilling effect because it makes people in executive positions uncomfortable----It's a thing that's hard to celebrate ,but you also have to acknowledge that it probably reflects an emerging understanding of safety issues on the part of prosecutors."

In addition, he noted that the government agencies that investigate accidents have become increasingly likely in recent years to cite weak safety practices or safety cultures within aviation organizations among causes, or contributing factors, of accidents.

The International Federation of Airline Pilots Associations IFALPA found that in cases in which aviation personnel have been prosecuted for negligence, judges and juries often have been reluctant to convict. According to IFALPA "There is recognition that it is fundamentally wrong to convict someone criminally for trying to do their job. There are several examples where pilots have been acquitted. In each case, the pilot was attempting to respond to either malfunction or highly unusual circumstances and got it wrong. Where there have been convictions, the circumstances have been far more political than legal.

"IFALPA believes that all personnel should be held accountable for their decisions and actions in a safety –critical system.However, experience have shown that criminal prosecution makes no contribution to improving system safety".

Actions that do improve safety include accidents investigations, mandatory safety reporting schemes, and flight operational quality assurance (FOQA) programs and similar data analysis programs, all predicated on a "just culture". ICAO defines a just culture as a culture that recognizes that personnel should freely share critical safety information without fear of punishment while also accepting that, in some instances, there may be a need for punitive action .If this standard is met for these reporting programs, it is almost certain that the prosecutorial standards will be limited to intentional acts.

Voss said that,"for the sake of safety and a just culture, safety investigators, plus those who are being investigated must have complete confidence in the integrity of the process.

Achieving that trust will be difficult, he said, noting that the public and government officials frequently favor prosecution of those involved in accidents.

"We need to be realistic," Voss said.

"We're not going to get major changes in regulations, and we're not going to change any constitutions. We need to just talk to prosecutors so that they can do a better job of balancing the rights of individuals that are compromised as a result of an accident versus the needs of the public."

In future, the public likely will continue to demand punishment of aviation professionals who are involved in accidents and incidents .Nevertheless, the public sentiment cannot be permitted to override "the fundamental principle that punishment does not improve safety" because the threat of punishment-which may deter intentional acts-has no effect on unintentional errors that lead to accidents.

Aviation Safety leaders face a growing challenge in convincing prosecutors to be diligent in filing criminal charges against pilots, controllers and others involved in aircraft accidents.

Globally, there is a growing tendency of prosecutors and judges to seek criminal sanctions in the wake of aviation accidents, even when the facts do not appear to support findings of sabotage, criminal negligence or willful misconduct .The trend may be associate with the publics increased desire for accountability in many areas of industry-not just in aviation.

Without accountability through administrative remedies, such as civil penalties and license suspensions or revocations, one might argue that criminal prosecution in some situations would be reasonable. However, administrative and civil remedies nearly always exist and research by a Flight Safety Foundation working group found almost no adequate basis, other than willful conduct, for punishing individuals and companies further by subjecting them to risk of imprisonment or the equivalent of a corporate death sentence, particularly in an industry where safety reputations mean everything.

The aviation community all too well realizes that a single aviation disaster has many devastating consequences. Most importantly, lives are lost. Family members and friends of the victims mourn these losses; most seek answers, many seek change, and some seek revenge. Like the entire aviation industry, they want to know what happened, and why. In time, and with hard work, many lessons are learned. Possibly, the best way to honor victims of tragedy is to make sure all relevant information is obtained that might prevent future accidents. If individuals are not helpful to investigators out of fear of being prosecuted and sentenced to jail, investigators may never discover the truth.


Vital To Improve Safety

Most accidents are the result of human errors and often arise in context of a series of acts and omissions. Aviation technology is imperfect still, and individuals are even less perfect. Most professionals in any profession make mistakes in their everyday jobs. These mistakes in their everyday jobs. These mistakes normally go unnoticed and rarely result in real harm. Aviation, however, can be most unforgiving .For decades, the system has progressively elevated to its current high level of safety. In part because the industry has been permitted to conduct thorough investigations and collect complete information about the causes of accidents.

Nowadays, accidents in aviation are fortunately rare, so rare that sometimes we cannot learn sufficiently only from them .To learn, we need also to ask pilots,controllers,technicians-operational people often trying to balance multiple goals under time pressure-to tell us their stories, to pass on their insights, their experiences-what went wrong and what went right, what may be worth changing and should not be touched, where the gains are and where, if we act ,we will produce more side effects than benefits. When we punish these people, these valuable intelligence officers working on the front line, for their honest mistakes, we cut our information sources, we obstruct our capability to improve safety, we deny our society an opportunity for safer flights. This effect is also extended to the wider community of colleagues when one of them is ‘victimized'. By doing this we put a bomb in the works of the delicate improvement machine.

Prosecutors face the difficult duty to seek justice and protect society. It is their duty to seek justice, not merely to convict. Their crucial role is to protect the innocent as well as identify the guilty, to respect the rights of the accused as well as recognize the interests of the public. As prosecutors are quintessential public-interest lawyers, the aviation community has to make a case towards them as to how it learns and improves aviation safety for the same public, the same society that prosecutors protect.

Increased Criminalization

"Criminal Prosecutors are becoming increasingly eager to press charges against pilots, air traffic controllers and other aviation professionals involved in aircraft accidents, and that eagerness is a growing threat to flight safety" says Flight Safety Foundation President and CEO William R. Voss.

"The safety of the travelling public depends on encouraging a climate of openness and cooperation following accidents," Voss said." Overzealous prosecutions threaten to dry up vital sources of information and jeopardize safety."

"In situations of gross negligence, willful misconduct or reckless conducts, the judicial authorities need to pursue their own, separate investigation," Voss said. "The future lives of passengers depend on the vital safety information that is gathered during an accident investigation. The aviation industry is not against holding aviation professionals accountable if there is a case to answer. But it is important that everything follows international standards.

For most African operators, the concept of the TCO is new and will trigger the question of why it is necessary and what will it improve. Here are the pros and cons that we envisage at this stage:

Pros:

TCO certification will ensure continuous compliance with international aviation safety standards. The Special Approvals Section of the certificate will serve as a unique point of reference for the applicable airspace entry requirements. Single certificate for all safety approvals. E.g. Some EU states now issue individual Dangerous Goods approvals to foreign operators. The process of sanctioning operators that violate safety standards will be more transparent and easy

Cons:

Red tape: Added layer of bureaucracy Potential of delaying changes in operations (e.g. introduction of a new type). Risk of losing focus and only follow the motions. This appears to be the case with some states that already issue TCO certificates. In such cases, the reason for the certificate is being eroded and needs to be reevaluated.

Conclusion

African operators should watch for more than one reason the EASA website (www.easa.europe.eu) for the TCO NPA, which is now slated for publication last month. Not only will it inform them of this upcoming rule, so that they can prepare themselves but also, being an interested party, they have the right to comment on the rule from a users perspective. The rationale of the TCO concept itself, though, can no longer be addressed as that was fixed when the first extension of the BR was adopted in 2008.

Operators and Civil Aviation Authorities in Africa (and other continents) should watch a anew development in Europe that will affect operators that fly to Europe. Operators that do not fly to Europe but have code share agreements with European operators will possibly also be affected .Rules are being proposed shortly that will require these operators to undergo a certification process. Draft rules for that process will shortly be published .Interested parties can comment on those proposed rules. We advise that you study these and consider to comment upon them.

Background

Aviation Safety needs continuous improvement .Being content with what has been achieved –and that is amazingly much in aviation safety-is not enough. To keep pace with the growth of air transport, the focus on safety needs to more than catch up with that increase so as to make sure that accident rates decline futher.There are many ways to achieve that. Modern State Safety programmes and Safety Management Systems,ICAOs USOAP and the various ramp check programmes,such as SASA in Europe ,are but a few.

The more traditional means to control safety are certification and continous oversight programmes by the Civil Aviation Authorities of states. In the area of operations, these programmes are limited to the state where an operator resides. This will now change.

EU Rulemaking Process

In 2004, the European Union started a rulemaking programme aimed at the certification of third country commercial operators, giving a rationale the need to protect European Passengers and citizens on the ground. This initiative led to the inclusion in the EASA Basic Regulation (BR) of a clause on third country operators and the need to make detailed regulations. The Basic Regulation itself may be regarded as the constitution of European aviation safety regulations, reflecting in scope and function the Chicago Convention, albeit at a European scale. It is adopted by the highest political institutions in the European Union: the council of Ministers and the European Parliament. The BR exists since 2002 and initially was limited to matters of airworthiness .It has since been extended twice: in 2008 for Operations and Crew Licensing and in 2009 for Aerodromes and Air Traffic Management.

The 2008 extension, also called the first extension, ordered the European Aviation Safety Agency (EASA) to have subordinate rules, called Implementation by ultimately 8 April 2012 on all matters of operations and crew licensing. With one exception, they all apply to European applicants. The exception is the latest in the row, the IR ON Third Country Operators (TCO).

The European rulemaking process follows a number of steps, the two most important of which are the publication of a Notice of Proposed Rulemaking (NPA) which opens a proposed rule for public Document(CRD).The latter is a compilation of all comments and their disposition by EASA and may be seen as a last option for interested parties to comment. Most of the first extension IRs is now beyond the NPA phase and, in some cases, even beyond the CRD phase. The Publication of the NPA was expected last month. The comment period will be three months, following which all comments will be reviewed .The CRD is expected to be published by mid-2011 and the final rule late 2011 or early 2012.

TCO Rule Requirements

Although the NPA is yet to be issued, we have some idea as to what it will entail. We expect that basically it will require that all operators from outside the European Union need to obtain a safety certificate before being allowed access to European airspace. Possibly, the rule will also affect operators that do not fly into EU territory but have a code share agreement with an EU operator. The substance of the regulation will be based on that of –or preferably even refer to –ICAO Annex6,Part1,added with airspace related requirements, possibly in the form of ‘ Special Approvals,' as is now the case for EU AOCs.The latter includes approvals for such aspects as RVSM,RNP,LVO,8.33 KHz,ELS/EHS,Dangerous Goods.

It is unlikely, or at least improper from an international civil aviation promotion point of view, that the TCO IR will include requirements that are stricter than those of ICAO. Having said that, we cannot exclude the possibility that in some areas the NPA will introduce substance that does go beyond ICAO standards, but which EASA considers to be vital to guarantee safety to its citizens.

In addition, there certainly will be an administrative section that regulates the application, continuation and suspension of the certificate. Quite possibly, a link will be made to the SAFA regulation, as ramp checks will form an important source of information for the continued validity of the certificate.Currently,repeated SAFA-found violations may lead to a process of ‘blacklisting' a foreign operator. This process is cumbersome and not transparent to parties, not the least the operator in question. We expect that suspension measures for the TCO certificate will not only ease that process, but also make it more transparent, thereby helping operators to avoid getting in such a situation.

It is yet unknown what level of details will be used on the certificate-will it list individual aircraft types or even registrations? Will it list details of equipment installed? Will it list key personnel? And so on………….

Operators will come from those states, but may also include operators from states that score lower but have good ramp check (SAFA) results. These operators are expected to receive the certificate, upon application, without any further showing. For the remaining operators, a division is likely between those operators that are currently on the European black list and those that are not. Black-listed operators will not be granted a TCO certificate .Other operators are expected to be subjected to a desktop scrutiny or an audit before certification.

Managing Applications

When the TCO rule will become in force –ultimately 8 April 2012-EASA awaits the enormous task of processing applications and issuing certificates to well over a hundred of non-EU operators that at that time operate into the EU. This should be done without any disruption to those operators that deserve the certificate. It will be impossible for EASA to deeply scrutinize all these carriers before issuing a certificate. Quite likely, during the transition phase they will apply the policy of trusted states and trusted operators. Trusted states will be those states that score high in the USOAP.Trusted operators will come from those states, but may also include operators from states that score lower but have good ramp check (SAFA) results. These operators are expected to receive the certificate, upon application, without any further showing.

For the remaining operators, a division is likely between those operators that are currently on the European black list and those that are not. Black-listed operators will not be granted a TCO certificate. Other operators are expected to be subjected to a desktop scrutiny or an audit before certification.

Continuous Monitoring

How will operators that have been certificated be monitoring? Once a certificate has been obtained, a process starts of continuous monitoring. That process is likely to be made up of the same elements that play a role in initial certification:

What is the performance of the issuing state?

What is the performance of the operator (e.g as verified during SAFA inspection)?

Changes in equipment, routes, etc;

Transition Phase

The duration of the transition phase itself is unclear at this stage. As the NPA is still being developed, all options are open. Will it be a big bang, meaning that on 8 April 2012 and non-EU operators must have a certificate or will there be some time for operators to file their application and EASA to process them?

Certification By Other States

Actually, the concept of TCO certificates is not new. Other states have similar regulations. In the USA it exists that long that those who are currently active in aviation do not know when it was introduced.There,is it known as ‘Operations Specifications.' The legal basis is Federal Aviation Regulation 129.Canada issues TCO certificates under the name' Foreign Air Operator Certificate.' From the early 1990s onwards, a proliferation is seen of states that introduced such certificates. Initially, this concentrated in Latin America and was possibly a result of the IASA program of the USA. That program started in 1992 and focused on the ability of states to adhere to ICAO standards for aircraft operations and maintenance, in fact a forerunner of the ICAO USOAP.Later, states in Asia, such as China, also introduced foreign Air Operators Certificate.

Lack of infrastructure- There is non-availability of FBO's (Fixed Base Operator), terminals. The numbers of agencies for ground handling are extremely restricted, there is non-availability of MRO'S (Maintenance, Repair & Overhaul) and increases cost of maintenance. There is no separate parking and the helicopters are operating out of airports. There are no heliports and heli-routes in India till date.

Restrictive regulations- Too many agencies are involved in the procedure of getting a private aircraft such as Ministry of Home Affairs, Ministry of Civil Aviation, Directorate General of Civil Aviation, Bureau of Civil Aviation Security, and Airport Authority of India. 25% of duty is only restricted only to the corporate aircrafts, which increases costs. The owner has to restrict himself to operational timings at major metros, which renders private ownership useless.

Lack of Manpower- There is shortage of pilots and engineers. In India there are 35 flying schools, which are not producing the required number of pilots. There is a demand of about 50,000 employees and 15000 engineers in the airline industry.

The general aviation sector still has large scope for growth, by the intervention of private players and the availability of the purchasing power among the classes.

It increases the efficiency and productivity of businesses by reducing travel time that would be required to drive or to use more congested commercial airports. It provides training for a majority of new pilots.


Companies/ Government Agencies can use airplanes/ helicopter to:

• For corporate Use

• Offshore purposes especially helicopters

• Emergency Medical Services (EMS)

• Disaster Management

The latest statistics for the civil aviation sector depict:

• FDI up to 100 per cent is allowed under the automatic route for Greenfield projects.

• For existing projects, FDI up to 100 per cent is allowed; while investment up to 74 per cent under the automatic route and beyond 74 per cent under the government route.

The Indian aviation industry is one of the fastest-growing aviation industries in the world with private airlines accounting for more than 75 per cent of the sector of the domestic aviation market (as of 2006). A compound annual growth rate (CAGR) of 18 per cent and 454 airports and airstrips in place in the country, of which 16 are designated as international airports, the time has come to monitor the increasing growth of aviation sector.

Today, the General aviation sector is most neglected in the civil aviation industry. It is treated as a step child of aviation in India. There are no separate guidelines for general aviation. In India there is no concept of FBO's (Fixed Base Operator), helicopters or GA (General Aviation) terminals. Maximum use of General Aviation is in corporate charters, followed by offshore operations through helicopters, tourism etc. In the private charter industry itself there is an estimated business of Rs.2900 crores and it should not be neglected. General Aviation in India is a very niche market, especially since it is hassle free and has instant availability status. The value additional benefits of private aircraft are that it can fly to destinations not covered by scheduled airlines, has access to over 400 air strips (Only 90 are operational right now). The versatility of helicopters of reaching where nothing else can is not being exploited to its best potential.

Ethiopian Airlines recently celebrated the maiden flight of its first woman captain.Amsale Gualu Endegnanew, when she took off on her first flight from the left-hand seat on the flight deck of a Bombardier Q-400 aircraft from Addis Ababa.

She flew the service to Gondar, then to Axum and finally returned back to Addis Ababa after a total of 3,6 flight hours.

Captain Amsale joined the Ethiopian Airlines pilot Training School on July, 10, 2000 and started her career as first officer on November 26, 2002.Since then; she has trained and worked on Fokker-50, Boeing 757 and 767 aircraft as first officer. Captain Amsale has been able to complete all the necessary training requirements and passed through rigorous checks to gain her fourth stripe.

She had a total of 4475 flight hours under her belt when she became the commander of her flight.

Ato Tewolde G. Mariam, designated chief executive officer of the airline, welcomed her at an Addis Ababa International Airport function on her return flight from Axum ,saying: "We congratulate Captain Amsale on her outstanding achievement. She deserves the recognition as she has demonstrated tremendous dedication to reach the pinnacle."