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04
feb

Newsletter February 2013: Newsletter FLO – Aviation

 Arthur Flieger, Attorney at law Flieger Law Office bvba with the cooperation of Stijn Brusseleers, Attorney at law Flieger Law office bvba

BRAZILIAN ALTERNATIVE TO MITIGATE THE LACK OF LEGISLATION TO PROTECT SAFETY INFORMATION – JUST CULTURE

I. Introduction
Brazil took several initiatives aiming the necessary protection of flight safety information concerning the investigation of accidents.

1.1.
The Military Organization of the Brazilian Air Force responsible for the activities of prevention of aircraft accidents, is the Aeronautical Accident Investigation and Prevention Center ( CENIPA ). The organization is responsible for the activities of prevention of aircraft accidents, including the investigation of civil and military aviation occurrences.

CENIPA was created in 1971 as a central organization of the Aeronautical Accident Investigation and Prevention System ( SIPAER ). The creation of CENIPA represented the emergence of a new philosophy, in which investigations have to be conducted with the sole purpose of promoting the prevention of aeronautical accidents in accordance with international standards.

The Aeronautical Accident Investigation and Prevention Center develops educational, operational and regulatory activities annually. Its duties are the supervision, planning, control and coordination of aeronautical accidents investigation and prevention activities. CENIPA is the body of SIPAER.

The above mentioned actions are performed in a universe that involves the three Brazilian Armed Forces (the navy, army and Air Force) and the National Civil Aviation Agency (ANAC) and the Brazilian Airport Infrastructure Enterprise (Infraero), and the airline companies, among other representative entities.

On the civil aviation section CENIPA has 7 Regional Aeronautical Accident Investigation and Prevention Service Offices ( SERIPA ). The SERIPA’s perform all the activities related to the investigation of aircraft accidents and incidents.

The CENIPA and the SERIPA’s have teams on the alert 24/7 to carry out the initial action of investigation. Support from the Air Force is sometimes used, making it possible for the investigators to reach places that would otherwise be difficult to access.

The assistance of the air force is also used to carry debris in accessible areas, and move quickly and efficiently.

In the phase of analysis, the CENIPA counts on the support of the Department of Aerospace Science and Technology ( DCTA ). This organization of the Brazilian Air Force has equipment and highly qualified personnel, capable of performing the necessary examination and research: removal of engines, research of fuels and lubricants, analysis of flight instruments a.o.

CENIPA will at the end of the investigation issue a final report with flight safety recommendations. CENIPA will send all reports required by the Chicago Convention Annex 13 to the ICAO and the countries participating in the investigation.

1.2
LABDATA is the flight data laboratory of the CENIPA. This flight data laboratory is capable of retrieving and analysing the data in flight recorders of civil and military aircraft both from Brazil and other countries. The investigators will obtain from LABDATA deep analysis of FDR and CVR recorded information. Their system allows high level extraction and handling of data by means of mathematical and statistical operations, with the development of visual graphics and animation that allow the reproduction of the flight path, engine parameters and other information essential to the investigation and analysis of the occurrence.

Everything is done in accordance with the FAB and ICAO Annexe 13 standards.

CENIPA has also a number of tools to act directly on prevention. The Prevention Report is a voluntary reporting tool widely used by the Brazilian aviation community, and it aims at fostering the adoption of preventative measures in the various organizations in a proactive manner and without punitive purposes. There is also a Flight Safety Confidential Report ( RCSV ) next to the Prevention Report.

1.3
Another preventative tool is the Aeronautical Accident Prevention Program (PPAA). This PPAA enables the analysis of trends as well as the implementation of operator-specific programs: CFIT, FOQA, LOSA aviation risk prevention, prevention of drug and alcohol abuse and conversation of hearing, a.o.

The PPAA allows the operator to organize flight safety, educational and promotional activities. This all becomes an essential tool for the dissemination of the flight safety culture in Brazil.

CENIPA encourages the making of flight safety inspections, with the objective of providing advice to the chief of an organisation, through a detailed analysis of the organization, highlighting the conditions of risk observed, risk analysis and recommended mitigation actions.

Every year CENIPA will in the educational area, promote a schedule of flight safety seminars and courses. It will also offer the military and the civilian community an average of 15 different courses all free of charge. The main course is the Aeronautical Accident prevention course

II. Flight Safety Information Protection in Brazil
CENIPA participates in the Task Force on Safety Information Protection. This group was created in the International Civil Aviation Organization (ICAO) to provide recommendations for the improvement of SARPs or the development in the new SARPs, aiming at the protection of flight safety information. ICAO considers that the existence of legal safeguards to protect such information is essential to encourage reporting and cooperation among the participants.

CENIPA does not restrict its action in protecting the safety of flight information to participation in the SIP TF group.

Brazilian law (2453/2007) refers to the inviolability of the investigation confidentiality, and is divided into four sections. The first section deals with the independence of the SIPAER investigation relative to other investigations, such as police enquiries for judicial purposes, and establishes that investigators can not take part in both investigations simultaneously. Other sections deal with the SIPAER investigation competence, professional secrecy and information protection, as well as access to the wreckage. This law has got a significant importance.

III. Alternative actions
Because of its concern about the misuse of flight safety information, CENIPA has been developing other actions to ensure that this information is used to prevent accidents. It occurs that one of the most promising activities has been based on a greater institutional integration between the CENIPA and the Judiciary Branch, through courses for the members of the judiciary in order to clarify the ins and outs of the SIPEAR investigations and the prevention tools used in the Brazilian aviation.

There are some courses such as “The challenges of the Aeronautical Law and the Military Administrative law”, the first of which was held in Recife with the support of the federal Judiciary School of the 5th Region.

3.5
After this first successful step, the CENIPA intends to reach the other regions of the country with the same course, always in partnership with the Schools of Magistrates. The results have been amazing and acceptance by the Judiciary Branch was excellent. As fruits from this strategy, one can mention the good coordination between law enforcement agencies and SIPAER investigators on the occasion of an actual accident occurrence, when all professionals were able to work smoothly because they were aware of the responsibilities of one another.

3.6
Another important positive result was the decision made by a federal magistrate, following a request of a public attorney to have full access to the CENIPA investigation data related to an aeronautical accident, which was being the subject of police investigation. The judge’s decision limited the access of the police and Federal prosecutors to the CENIPA information, based on item 3.1 of Annex 13 to the Chicago Convention.

Initially, the magistrate recognized the objective impediment established by the Chicago Convention. Moreover, considering that the SIPAER investigation is not focused on the determination of guilt or liability, and that it may even establish hypotheses or possibilities in its investigation, the federal judge evaluated that a strong subjective incompatibility falls upon the SIPAER investigation if it were to be used for judicial purposes.

3.7
It’s clear that when the judiciary develops a deeper understanding of the worldwide aviation system, as well as of the aviation industry practices and, especially, of the international agreements, including the annexes of the Chicago Convention, they are able to make better judicial decisions concerning the protection of flight safety, indepently of the fact that the country still does not have a specific law regarding the subject.

One can say that the Brazilian system has shown satisfactory results while some significant legislative milestones on this issue are still being processed.

For further information and comment, please contact Arthur Flieger at Flieger@fliegerlaw.com, Website: www.fliegerlaw.com, telephone: +32 3 238 77 66

Copyright A. Flieger
This publication is defined to provide accurate and authoritative information in regard to the subject matter covered. It is transmitted with the understanding that the publisher is not engaged in rendering legal, or any other professional services. If legal advice or other expert assistance is required, professional services should be sought. You can always contact A. Flieger at flieger@fliegerlaw.com.