As FG Moves to Amend NCAA Act

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Chinedu Eze writes on the move by the federal government to amend the Nigerian Civil Aviation Authority Act in order to reposition the aviation industry

Aviation stakeholders were elated 14 years ago when the 2006 Civil Aviation Act was passed into law and its implementation started. Their elation was derived from the reality of that time that the Nigerian Civil Aviation Authority (NCAA), would become autonomous and therefore would be able to effectively regulate the airlines without interferences to ensure that they operated safely.

Then the priority was safety. Before the Act, Nigeria had experienced the most tragic period in its aviation history, the air crashes of 2005 and 2006, which industry stakeholder and Director of Engineering, Lukeman Animaseun described as the darkest period of Nigeria’s aviation industry.
So, since 2006, Nigeria has recorded less air accidents and since 2014 till date no accident involving commercial airliner has been recorded in Nigeria.

But now that has been achieved, government felt that there is need to have a more encompassing NCAA, which would effectively engage in economic regulation and also to eliminate conflicts of interest between NCAA and other aviation agencies like the Federal Airports Authority of Nigeria (FAAN) and the Nigerian Airspace Management Agency (NAMA).
The federal government wants the power to regulate the industry to be fully bestowed to NCAA, so FAAN would become known as the Federal Airports Administration of Nigeria.

Full Autonomy
In his opening remarks during the recent public hearing for aviation agencies organised by the Senate Committee on Aviation, the Minister of Aviation, Senator Hadi Sirika noted that the journey to the proposal for amendments of the laws establishing agencies under the Nigeria civil aviation commenced as a result of finding in the International Civil Aviation Organisation (ICAO) universal Oversight Audit Program (USAOP) in 2006 as well as finding in the United States Federal Aviation Administration (FAA) Category/ Certification Audit in 2010 that the establishment Acts of some of the aviation service providers contain regulatory powers, but the Nigerian Civil Aviation Authority (NCAA) should be the only authority and autonomous regulator of the civil aviation in Nigeria.
Thus, Nigeria was requested and agreed to take corrective action to address the Audit findings.

“Consequently, a committee involving the relevant stakeholders was constituted by me to review the establishment Acts is of the six aviation agencies, not only to close the audit findings by removing regulatory powers from service providers agencies, but also to bring the respective Acts up to date with development in International Civil Aviation; separate powers among agencies; give NIMET (the Nigeria Meteorological Agency) the leverage to commercialize some of its products; remove impediments into smooth running of the functions of all the agencies and ensure seamless coexistence between the agencies and encourage the agencies to initiate avenue of generating revenue among others,” the Minister said.

Conformity

While addressing the Senate Committee on Aviation, the Director-General of NCAA, Captain Musa Nuhu said that the coming into force of the Civil Aviation Act, 2006 coincided with the Universal Safety Oversight Audit Programme (USOAP) audit of Nigeria, conducted by the International Civil Aviation Organization (ICAO) later that year.
He explained that the ICAO USOAP audit assesses the capabilities of a member state’s Civil Aviation Authority (CAA) to carry out an effective safety oversight of its aviation sector through the level of implementation of the standards and recommended practices (SARPs) and the critical elements (CEs) of a State’s safety oversight system.

“Part of the findings of the ICAO Audit of Nigeria for that year was that the Establishment Acts of some of the service-provider aviation agencies, such as the Federal Airports Authority of Nigeria Act, 1995 and the Nigerian Airspace Management Act, 1999, which gave them regulatory powers, whereas ICAO requires that the CAA of every ICAO member state (the Nigerian Civil Aviation Authority, in the case of Nigeria), shall be the only and autonomous regulator of civil aviation in the member state.

“ICAO Document 8335, Chapter 3, prescribes two main prerequisites for an effective aviation regulatory system, namely, the provision of a basic aviation law of the State and the establishment of an autonomous CAA with necessary powers to ensure compliance with the regulations. The above was also the finding of the United States Federal Administration (FAA) Category 1 Certification Audit of Nigeria, conducted in 2010.

“Both audits recommended that Nigeria should take corrective actions to address the finding, by amending the said Establishment Acts, to remove regulatory powers from service-provider agencies. Nigeria accepted the recommendation.
Consequently, in 2013, the Ministry of Aviation set up a committee to review the Establishment Acts of all the aviation agencies, and propose amendments, not only to close the audit findings but also to update the respective laws, including the Civil Aviation Act 2006, and bring them into conformity with new and amended ICAO SARPs, and with developments in global civil aviation,” the Director-General said.

Recommended Practices
He also explained that ICAO issues SARPs for the regulation of the aviation industry. Nigeria, as an ICAO Member State, is obliged to comply with the standards while recommended practices are desirable. Since the enactment of the Civil Aviation Act in 2006, ICAO has issued and amended a number of SARPs, such as the new Annex 19 (Safety Management), and there is the need to review Nigeria’s primary aviation legislation (the Civil Aviation Act) to incorporate these developments.

He said besides the SARPs, there are other international air law instruments, including Conventions and Protocols, ratified by Nigeria, for example, the Montreal Protocol of 2014, which provisions needed to be incorporated into the Civil Aviation Act of Nigeria.
“Other developments in civil aviation, such as the increasing collaboration among ICAO member states through establishment of regional, interregional and other strategic partnerships, example, the Banjul Accord Group
Aviation Safety Oversight Organization (BAGASOO)], and the increasing use of remotely-piloted aircraft systems (also known as drones) in Nigeria, the introduction of Advance Passenger Information (API) and Passenger Name Record (PNR) data exchange requirements between departure and destination countries, among others, needed to be provided for in a new Civil Aviation Act.

“Gaps and omissions observed in the Civil Aviation Act of 2006, for instance, the omission of Article 30 of the Convention on International Civil Aviation, 1944 (the Chicago Convention) from the functions, listed in section 68(1) of the Act, which Nigeria may exchange with the aeronautical authority of another ICAO Member State pursuant to Article 83 of the Convention, needed to be filled.
Some provisions of the Civil Aviation Act 2006 lacking in clarity, and which do not satisfactorily answer some protocol questions of the ICAO USOAP Continuous Monitoring Approach (CMA) audit, needed to be rephrased. The above, among others, provide the basis, rationale and justification for this overdue review of the Civil Aviation Act of 2006,” Nuhu added.

Gains
The Director-General of NCAA said Section 4 of the new bill emphasizes the autonomy of the NCAA, and its independence in the discharge of its safety and security oversight functions. This provision, he said, satisfies a key ICAO requirement that member states should set up autonomous Civil Aviation Authorities with necessary powers to ensure compliance with the civil aviation regulations of their States.

Section 11 of the new provisions for the appointment and tenure of office of the Director-General of the NCAA, in section 11 of the Bill, which has made removal subject to Senate confirmation, and only in accordance with the provisions of the Act, will provide stability, as well as a measure of security of tenure, for the Director-General.
This will allow the holder of the office to concentrate on the enormous task of instituting a robust regulatory oversight system for a safe, secure, efficient and sustainable civil aviation industry in Nigeria.

Section 15 of the bill deals with the right personnel and Nuhu explained that to effectively fulfill its responsibilities as a safety oversight organisation, the NCAA must be properly staffed with qualified personnel in sufficient numbers, who are capable of accomplishing the wide range of technical duties involved in aviation safety and security oversight.
“ICAO Documents 9734A, 8335 and 9760 require that technical staff in a State’s Civil Aviation Authority should be more knowledgeable, or at least as knowledgeable, as the persons in the industry they oversight.

“In this regard, the provision of section 15 of the Bill is a welcome development, as it will allow the NCAA to bring in experts to fill the gap, while it continues the training and retraining of its regular workforce, in an effort to attain the desired technical training level, which Nigeria is yet to attain.
“Section 17 of the Bill details the sources of funding for the NCAA. It is a long list but there is actually little money in it, apart from the share of the 5 per cent Ticket Sales Charge (TSC) and Cargo Sales Charge (CSC). The rest of NCAA’s funding comes from fees charged for grant of certificates, licences, permits and other authorisations.

“These fees are charged on cost-recovery basis, in line with ICAO Document 9082 and Part 1.8 of the Nigeria Civil Aviation Regulations, 2015. ICAO Document 9082 require that charges for services in civil aviation be calculated on cost recovery basis, while Part 1.8 of the Nigeria Civil Aviation Regulations prescribe that fees charged for licensing, approvals and certification shall be the cost of actually rendering these services and not for revenue or profit.

A look at section 17 of the Bill shows that 17 of the sources of funding are cost recovery items. The rest are items like subventions and budgetary allocations from the government of the federation, a fund the NCAA does not receive and has never received.
Another item is fines, which is an irregular source of funds, as the NCAA prefers that operators do not violate the regulations, rather than to fine them. That leaves the 5 per cent TSC/CSC as the major source of funding for the NCAA, contributing between 85 per cent and 90 per cent of the agency’s total funds,” the Director General explained.

He also explained that from the five per cent TSC/CSC, the NCAA carries out numerous activities and responsibilities, top of which is training and re-training of aviation safety and security inspectors, and other technical staff, to become more knowledgeable than, or as knowledgeable as, those in the sector they oversight, as ICAO requires, in the interest of safety and security of civil aviation.
“Unfortunately, the capabilities for most of the mandatory technical training for NCAA safety and security inspectors are not available in Nigeria, and have to be done abroad, taking a huge chunk of the NCAA’s share of the five per cent TSC/CSC.

Apart from recruiting such qualified technical personnel, the NCAA also faces the problem of retaining them. To retain personnel with the required technical knowledge, it is imperative that they are offered conditions of service and remuneration which are not only consistent with their qualification and experience but also comparable to what the operators, whose activities they oversight, offer.
In other words, the NCAA has to be a competitive employer, able to finance the initial and recurrent training of its technical staff. Doing this also takes a huge chunk of the Authority’s share of the 5 per cent TSC/CSC,” Nuhu said.