Oshokha Momoh August 16 2017 Civil Aviation Regulations 2015 – an overview George Etomi & Partners | Aviation - Nigeria Oshokha Momoh Aviation AmendmentsPart 18 – Air Transport Economic RegulationsPart 19 – Consumer Protection RegulationsPart 20 - Safety ManagementCommentThe Civil Aviation Regulations were first promulgated in 2006 in order to establish national requirements that align with the Civil Aviation Act 2006 provisions regarding standardised operational procedures, equipment and infrastructure. This included establishing safety management and training systems that conform with the standard and recommended practices (SARPs) contained in the annexes to the Chicago Convention on International Civil Aviation.AmendmentsThe Civil Aviation Regulations originally constituted Parts 1 to 18 (17 parts in total, due to the non-existence of Part 13). The regulations were amended in 2009, 2012 and 2015. The 2015 amendments took effect in 2016, following a review by the Nigerian Civil Aviation Authority (NCAA) which aimed to align the regulations with recent International Civil Aviation Organisation (ICAO) amendments to the SARPs and industry observations. The Civil Aviation Regulations 2015, as amended, incorporate three new parts:Part 18 – Air Transport Economic Regulations;Part 19 – Consumer Protection Regulations; andPart 20 – Safety Management.Part 18 – Air Transport Economic RegulationsPart 18 governs the administration, certification, licensing, permit, registration and audit procedures for all economic air transport activities. Specifically, Part 18 includes regulations concerning:air transport licensing;domestic operations;regional and international operations by Nigerian carriers;foreign airline operations into and out of Nigeria;air service agreements;airport and air navigation services;the facilitation of air transport;allied aviation services; andtravel agencies.Section 18.2 on air transport licensing covers all licensing, permit and other authorisation matters regarding scheduled and non-scheduled flight operations.Section 18.2.2 covers licences for scheduled domestic flight operations. It states that any person engaged in such operations must hold an air transport licence (ATL). Further provisions in Section 18.2.2 address issues such as:validity and expiration;renewal;violation;revocation; andall relevant requirements relating to ATLs.Section 18.2.3 and its related sub-sections provide for airline operating permits (AOPs) and address similar issues to those covered by the immediately preceding paragraph. An AOP is the equivalent of an ATL, except AOPs are given to persons that engage in non-scheduled or charter air service operations, while ATLs are given to persons that engage in scheduled operations. Section 184.108.40.206 provides that:"No person shall use any aircraft in Nigeria for hire and reward in public transport category to provide non-scheduled or charter air service unless such a person holds an ATL or Airline Operating Permit (AOP) issued by the Authority."As such, ATL holders can engage in non-scheduled or charter air service operations. No such allowance to operate scheduled services is made for AOP holders under Section 18.2.2.Section 18.2.4 and its related sub-sections provide for flight operations undertaken for non-commercial or private purposes. Under this section, any party that uses an aircraft in Nigeria for non-commercial purposes must possess a permit for non-commercial flights. Other sub-sections under Section 18.2.4 cover related matters, such as validity, renewal and revocation. Notably, Section 220.127.116.11 states that a permit for non-commercial flights that has not been utilised at the expiration of its validity will not be renewed by the NCAA regardless of whether an application for its new issuance has been made.Sections 18.2.5, 18.2.6 and their related sub-sections cover air travel organiser's licences (ATOLs) and permits for aerial aviation services, respectively. ATOL holders provide holiday tour packages and pilgrimages, whereas permits for aerial aviation services holders provide aviation services, such as aerial work, flying club, flying school and other services. This section sets out mandatory provisions relating to the grant, renewal, validity, suspension, revocation and variation of an ATOL.Section 18.5 provides for airline operations into and out of Nigeria and includes various requirements to which foreign airlines must adhere if they wish to operate in Nigeria. One such requirement is that foreign airlines that want to engage in scheduled operations into and out of Nigeria must hold a foreign carrier operation permit issued by the NCAA.Section 18.104.22.168 applies to foreign airlines that want to engage in charter operations. Under this provision, such a foreign airline must obtain flight clearance from the NCAA. Further, Section 22.214.171.124 states that foreign airlines cannot engage in non-scheduled (charter) passenger operations into and out of Nigeria, unless they do so in conjunction with a Nigerian ATOL holder.Section 18.9 covers allied aviation services, which are peripheral but necessary to achieving the main goal of aviation (ie, safe and convenient transportation by air carriers). Examples of allied aviation businesses listed under Section 18.9.1 are:aviation fuel suppliers;air transport training institutions;travel agencies; andin-flight catering service providers.Parties that wish to engage in the above services must obtain a certificate of registration or a licence from the NCAA.Part 19 – Consumer Protection RegulationsPart 19 of the Civil Aviation Regulations 2015 covers passengers' rights and responsibilities and airlines' obligations to passengers. It addresses consumer protection issues, including compensation for denied boarding and flight delays and cancellations.Section 19.5 covers priority boarding procedures. It stipulates that every air carrier must establish priority boarding procedures and criteria for determining the passengers with a confirmed reserved space who will be denied boarding on an oversold flight if there is an insufficient number of volunteers. The established boarding procedure must be filed with the NCAA and must be consistent with the regulations. Section 19.5.2 also details some of the priority boarding factors to be considered, such as:passengers on urgent medical trips;passengers with a reduced mobility status; andfamilies (with a maximum of two adults) where at least one child is aged five years or under.Sections 19.5.3 and 19.5.4 provide that where there is an insufficient number of volunteers, passengers can be denied boarding and such passengers will be entitled to compensation and assistance.Section 19.6 addresses flight delays and compels air carriers to perform certain obligations in such an event. These obligations include the payment of compensation, which is dependent on the amount of time that the delay subsists. For instance, Section 19.6.11 provides that where an air carrier that operates domestic flights reasonably expects a flight to be delayed beyond its scheduled time of departure, it must provide passengers with:reasons for the delay within 30 minutes of the scheduled departure time; andassistance, as detailed in the corresponding sub-sections.Where the flight is delayed beyond three hours, the affected passengers must be reimbursed in accordance with Section 19.9.1(i).Section 19.7 requires passengers to be compensated or assisted by the operating air carrier in the event of a flight cancellation. Passengers have the right to compensation unless they are informed of the cancellation at least 24 hours before the departure time. Section 19.8 further provides for the right to compensation and stipulates the level of compensation passengers are likely to receive in certain conditions or on the occurrence of certain events.Part 20 - Safety Management Part 20 of the Civil Aviation Regulations 2015 covers all safety management issues. It was incorporated into the regulations to align them with the updated standards and recommended practices in ICAO Annex 19. The SARPs in ICAO Annex 19 aim to assist states in managing aviation safety risks. Part 20 effectively adopts the SARPs included in ICAO Annex 19.The decision to establish ICAO Annex 19, which specifically covers safety management, was not due to a lack of safety management regulations or provisions. Rather, it was to consolidate all safety management provisions under one section and further improve and develop the existing regulations. To this end, safety management elements from Annexes 1 (Personnel Licensing), 6 (Operation of Aircraft), 8 (Airworthiness), 11 (Air Traffic Services), 13 (Aircraft Accident & Incident Investigation) and 14 (Aerodromes) were incorporated into Annex 19.Section 20.2.1 contains provisions on state safety programmes. Section 126.96.36.199 states that the NCAA will establish a state safety programme (SSP) for safety management in Nigeria in order to achieve an acceptable level of safety performance in civil aviation. Further, Section 188.8.131.52 states that the NCAA, as part of its SSP, will require that the following service providers under its authority implement a safety management system:approved training organisations;operators of airplanes or helicopters authorised to conduct commercial air transport;approved maintenance organisations providing services to operators of airplanes or helicopters engaged in commercial transport; andair traffic service providers.Sections 184.108.40.206 and 220.127.116.11 are important provisions. The requirement for an SSP recognises that states, as well as service providers, have safety responsibilities. The SSP therefore provides a framework within which service providers must establish a safety management system.CommentThe Nigerian aviation industry has continued to improve steadily in recent years. These standards of improvement are attributable to the proper implementation of the Civil Aviation Regulations 2015. The annexes introduced in 2015 are a welcome addition to the aviation industry; however, it remains to be seen how they will be implemented or enforced. With regard to consumer protection (Part 19), the NCAA needs to undertake effective education and orientation activities to inform consumers about the various rights provided for by the regulations. It is unlikely that service providers are adhering to Part 19's many stipulations; thus, they continue to get away with substandard practices and poor service delivery. If more consumers are aware that such rights exist and service providers are compelled to satisfy those rights, this will result in efficient service delivery and improved flight standards.The SSP is an integrated set of regulations and activities aimed at improving aviation safety. The SSP process is inaugurated in member countries in compliance with the ICAO requirements, as contained in Annex 19 on Safety Management (also contained in Part 20 of the Civil Aviation Regulations 2015).Nigeria is implementing the SSP and had achieved an effective implementation level of 67.36% at the last ICAO Audit in March 2016, which is higher than the world average of 63.54%. Nigeria has also attained Level 3 SSP implementation, as determined by the ICAO, which tracks the SSP implementation process of member states via its Integrated Safety Trend Analysis and Reporting System. The significance of this is that Nigeria's aviation safety standards are sufficiently high globally and continue to improve. According to ICAO records, only Australia and Sri Lanka have achieved full implementation of the SSP. In a January 2017 news release, the NCAA stated that Nigeria is striving to achieve Level 4 (ie, 100% implementation) by the end of 2017.For further information on this topic please contact Oshokha Michael Momoh at George Etomi & Partners by telephone (+234 1 462 1660) or email ([email protected]). The George Etomi & Partners website can be accessed at www.geplaw.com.