Article 83 bis, ICAO amendment requires give and take

Nov. 1, 2000

Article 83 bis

ICAO amendment requires give and take

By Brian Whitehead

November 2000

Although most AMEs are familiar with the International Civil Aviation Organization (ICAO), it's probably not something they think about very often. Nevertheless, ICAO requirements form the basis for virtually all our aviation regulations. Toward the end of World War II, it had become obvious that, once hostilities were over, the impetus the war had given to aviation would result in an unprecedented expansion of international air travel.

The Chicago Convention
With remarkable foresight, given the other priorities driving national agendas at the time, the countries then known as the United Nations (the allies) and several neutral nations met in Chicago in December, 1944 to hammer out the details of an agreement on the safe and orderly development of international air transport. In all, 52 states participated. The result was The Convention on International Civil Aviation (usually referred to as "The Chicago Convention" or, in the Canadian Aviation Regulations, simply "The Convention").
When the United Nations Organization was formed in 1947, ICAO became a specialized agency of the new organization, and the Convention, having been ratified by the required two thirds of member states, became binding upon the signatories.
The Convention addresses a wide range of topics; articles 31 and 33, dealing with Certificates of Airworthiness, being of most interest to maintenance personnel. The Convention itself is supported by several Annexes, containing Standards And Recommended Practices (SARPs). Of particular interest to AMEs are Annexe 1 (Personnel Licensing), Annexe 6 (Operation of Aircraft), and Annexe 8 (Airworthiness). Under the Convention, signatories agree to establish regulations that meet the minimum requirements outlined in the SARPs, and to permit each other's aircraft to operate in their domestic airspace. Largely because of ICAO, commercial aviation has avoided the "flags of convenience" that are now so much a part of the marine world.

Evolution of the Convention
One of the fundamental principles of the Convention is that while the state of operation (that is, the state that issued the Air Operator Certificate, and in whose airspace the operation takes place) is responsible for the operating rules, the state of registry is responsible for the aircraft's airworthiness. When the Convention was first established, air carriers almost exclusively used domestically registered aircraft, so this distinction was moot. Things are very different now. International leases are commonplace, and air carriers often operate foreign registered aircraft alongside those under the domestic flag. With mixed fleets of this nature, the need to comply with different airworthiness regulations can be problematic. To complicate things further, there is not always complete agreement among airworthiness authorities as to whether a given topic should be treated as an operational or an airworthiness requirement. Maintenance schedules and airworthiness directives are just two examples of topics that can be addressed under either set of rules. When operating a fleet of mixed nationality, this situation is obviously far from ideal, and raises the possibility of misunderstandings that could lead to a serious oversight. At the very least, it creates an expensive administrative burden for both the operator and the regulator.

Article 83 bis
In recognition of the changes in the industry, ICAO has introduced article 83 bis (the term bis, meaning Ôthe second,' indicates that that the new section supplements the original article 83). The amendment was first introduced in 1980, but due to the time taken for the required number of states to ratify the agreement, did not come into force until 1997. Article 83 bis provides that by mutual agreement, the state of registry may transfer some or all of its responsibilities in certain areas to the state of operation. It also requires other (third party) states who are signatories to the amendment, to recognize such agreements in respect of aircraft operating in their airspace. One of the affected areas is airworthiness. Another is flight crew licensing.
Full implementation of 83 bis may require some states to change their regulations. For example, while CAR 571 makes clear that foreign aircraft operated by Canadian Air Operators must meet all the same maintenance requirements as Canadian aircraft, it does not currently include any provision for Canadian aircraft to be relieved from compliance when operating under a foreign AOC. In effect, this means that for an international lease to take place, the aircraft must comply with two sets of regulations. That may well be possible, but it is not particularly convenient. On occasion, the different national requirements could be in direct conflict, which would actually prevent operation of the leased aircraft.

Careful considerations
Like other national aviation authorities, Transport Canada will be looking at its current regulations to determine which, if any, require amendment to enable the implementation of article 83 bis. At the very least, we will have to ensure that 83 bis arrangements between other states are recognized in our airspace. There will no doubt be some initial resistance to complete implementation, since that inevitably involves giving up a degree of sovereignty. Like ships, which are also registered to a state, when operating internationally, aircraft take some attributes of the parent state's territory with them. If we are to take full advantage of 83 bis, we must relinquish this control. On the other hand, the reverse is also true. The same agreement will provide increased control over foreign aircraft operating under a domestic AOC.
Agreements under 83 bis do not have to be all encompassing. The Convention provides for the transfer of "some or all" of the responsibilities, so the individual agreements can be tailored to the circumstances. However, if the agreements involve only a partial transfer, it will obviously be even more important to specify the terms clearly, so that no one can be in any doubt as to who is responsible for what.
Article 83 bis presents us with a real quid pro quo. We have to give something to get something. The bottom line is, it enables operators to maintain all of their aircraft to the same standards, regardless of the state of registry, and that has to be good news for maintenance professionals.