ICAO definitions or applications

[Foggy Bottom]

How does ICAO define "international commercial air transport"? If I am flying an N registered aircraft in Peru, but strictly within the borders of Peru, am I considered being involved in "international commercial air transport"? I am not operating across any international borders, and am not holding myself out to do so.

Can someone point me to a definitive part of ICAO regs or a finding?

[Bravo73]

I can't point you towards the specific regs, I'm afraid, but surely any 'N' reg flying outside of the USA would be considered 'international'?

[JimL]

Foggy Bottom,

You would have to look principally in the ICAO Convention on International Civil Aviation - it is unlikely that you will find the answers you seek in any of the Annexes. It will also be necessary to look in the Primary Legislation of both States.

in General (as I am not a lawyer):

You need to provide more information; what exactly are the operations you are conducting - are they General Aviation (GA) - i.e. private, or commercial? It is generally accepted that you are operating Internationally if conducting operations outside the boundaries of the State of Registration (not just when crossing the border).

If the aircraft is N registered and flying in Peru for GA; you should be flying: in compliance with the relevant Parts of FARs; the more stringent of the Rules of The Air as defined by the FAA, ICAO or Peru; or the more stringent of the operational requirements provided by the FAA or Peru.

A number of States limit the amount of time the aircraft resides - if it remains in their airspace (this is difficult to establish if records of flights are not retained by the State of Operation); this can be done by requiring you to vacate the airspace or re-register the aircraft in the State of Operation. Even if you remain in a foreign State, responsibility for oversight still remains with the State of Registration.

Conducting commercial operations in another State requires either, some protocol agreement (as exists between the US and Canada), or a transfer of Operational Oversight using ICAO Bis 83 (this is an agreement between the two States that responsibility for oversight has been formally transferred) - this permits the aircraft to remain registered to the original State. Other local agreements on (wet or dry) leasing can also be concluded.

ICAO requires CAT Operators to hold an AOC; this has to be issued by the State of Operations (which is usually the State of the Operator). The issuance of an AOC by the State of Operations to a foreign operator, without a Bis 83 transfer, should be seen as a rare occurrence - it places both the State of Registration and the State of Operations in difficult positions.

More information please.

Jim

[Foggy Bottom]

Thanks for the input...I should have been more descriptive in the situation.

Lets talk about Iraq/Afghanistan. The operators do not have a local 135 certificate that I am aware of. They do exclusive work with the Dept of Defense or the State department and do not hold themselves out to the general public. They do hold an FAA 135 Certificate and operate according to that certificate and their OPs Specs. Specifically does the ICAO age 60 rule apply? Are they involved in an International Commercial Operation? Can two pilots over the age of 60 fly together?

I am not as versed in this as maybe I should be, but I would think that ICAO is designed for International operations, and that "could" be defined as transporting person or cargo for hire across international boundries. In order to work within the boundries of a foreign country, it would seem that the foreign countries regulations would hold supreme as all of the operation is conducted within that country and no "international" operations are taking place.

I agree that the aircraft and crew are not operating in the country of the aircrafts registration, and are operating in a foreign country. But does that actually mean "International Operations"? I realize that this could be considered an exercise in semantics, but isn't that what rules and laws are?

[JimL]

The operations in Iraq and Afghanistan (you describe) will be conducted under Article 3 of the Convention (only the first part has been reproduced and you might have to read the other clauses):Article 3

a) This Convention shall be applicable only to civil aircraft, and shall not be applicable to state aircraft.

b) Aircraft used in military, customs and police services shall be deemed to be state aircraft.

c) No state aircraft of a contracting State shall fly over the territory of another State or land thereon without authorization special agreement or otherwise, and in accordance with the terms thereof. Under Article 3, no SARPs apply.

The conditions under which operations are conducted for the DoD are dependent upon the contract. If the contract require them to apply the conditions of the FAA 135 certificate (and OpSpecs), it will be stated.

Jim

[Foggy Bottom]

Thats pretty clear and thanks. Now to further confuse, the contract says that the operator shall abide by all pertinent FAA Part 135 regulations and applicable ICAO and local countries regulations, whichever are stricter, but never less then Part 135. My question still remains, is this an "International Operation" per ICAO and is the age 60 rule now in play?

[JimL]

I think we have gone as far as we can and are moving from the general to the contractual. It does appear that you have a (contractual) dispute that can only be resolved using the normal methods (between the parties and out of the public view).

To conclude the discussion - in my view:

The ICAO Convention and SARPs are applicable only to States - the preamble to the Convention states: "THEREFORE, the undersigned governments having agreed on certain principles and arrangements in order that international civil aviation may be developed in a safe and orderly manner...". My understanding is that each State has to provide regulations in compliance with the Annexes (and make a statement to that effect); if there are differences (and there usually are), they must be declared to ICAO - these are then Appended to the Annexes to which they apply.

To my knowledge, the only Annex that may be directly applicable is Annex 2 'Rules of the Air' - and then, as specified in Article 12, only "Over the high seas...".

It would appear therefore that the words that you have quoted are based upon a misunderstanding of the extent of the 'ICAO remit' and the intent of the Convention. With the exception of the case above, there are no 'applicable ICAO regulations' (in fact there are no ICAO regulations, only the Convention and SARPs - and of course various guidance papers).

If you wish to seek an answer to the question on the age 60 rule, you have to look to the FARs and the local regulations and, more importantly, the contract. If a State (or contractor) wishes to provide a set of regulations for a type of activity which can be regarded as 'State' under Article 3 (the UK police are a good example), it can take whatever template it likes. If those regulations are based upon (say) the rules provided by Parts 91, 119 and 135 and it is shown that one, or some, get in the way of the operation, they can, and will be, alleviated.

Jim