SMS Across International Boundaries

This article is the fourth in a series to simplify the understanding of the SMS processes. The entire series can be found here.

Putting together what we have learned in the first three articles in this series we know that:

  • ICAO requires that signatory States implement the requirement for an SMS for certain operators;
  • States that are signatory to the United Nations agree to:
    1. Operate in compliance with the regulatory requirements of the State in which the operation takes place, or in compliance with the regulatory requirements of the State of aircraft registration, whichever is most restrictive;
    2. Comply with the ICAO SARPS; and
    3. File differences for the SARPS in which the State will not be in compliance.
  • Commercial operators are already required to have an SMS; and
  • By November 2010 private operators will be required to have an SMS.

The FAA has not provided commercial operators with a means for complying with the ICAO requirement.

Key Points about State Differences

When an operator operates into, within, or out of a territory where the Treaty applies, that operator is subject to the oversight of their State of registry, as well as the State or Community where the operations occur.  What this means is:

  • Operators of a State that has filed a difference with ICAO are not required to comply with the ICAO requirement, for which the difference was filed, while operating in that State’s airspace;
  • Operators of a State that has filed a difference are not exempt from ICAO, or third-country State requirements, while operating in that third-country State, unless the third-country State agrees to accept that difference; and
  • Operators are not exempt from ICAO requirements, or the requirements of their State of registry, while operating in the airspace of a third-country State that has filed a difference.

A Real World Example

Annex 6 Part I requires commercial operators to implement an SMS, for which the U.S. has filed a difference.  This means that U.S. Part 135 operators are not required to implement an SMS while operating within U.S. airspace.  Canada has not filed a difference that exempts the SMS requirement, which means that all charter operators, including the U.S. operators, are required to have an SMS in Canadian airspace.  Additionally, Canadian charter operators are not exempt from the Canadian requirement for an SMS while operating within U.S. airspace.

When Annex 6 Part II becomes applicable in November 2010, U.S. Part 91 operators will become subject to the ICAO SMS requirement.  There is a caveat to the example above.  Canada’s SMS requirements are more stringent than the ICAO requirement.  The Canadian requirement for an SMS applies to all turbine-powered, pressurized airplanes.

The Conundrum for Operators

The States that do not have a requirement for operators to implement an SMS, such as the U.S., leave operators in a bit of a pickle when it comes to International operations.  The FAA has not provided commercial operators with a means for complying with the ICAO requirement.

The Advanced Notice of Proposed Rulemaking published by the FAA in July of 2009, pertains to implementation of an SMS for certificated operators.  This is a clear indicator that the FAA does not intend to address the ICAO requirement for Part 91 operators in the foreseeable future.  This will leave a large subset of U.S. operators hanging with regard to ICAO SMS requirements in foreign States.

ICAO Provides States an Alternative

ICAO SARPS allow States to accept and reference industry codes of practice, and guidance material developed by an industry body, as an acceptable means of compliance.  This opens the door for operators without State SMS requirements, such as U.S. Part 91 operators, to implement the IS-BAO in the States that recognize it as an acceptable means of compliance.

More on the alternatives in the next article.