CIVIL AVIATION: SUBSIDIARY LEGISLATION: CIVIL AVIATION (ACCIDENT AND INCIDENT INVESTIGATION) REGULATIONS
(sections 68(3) and 89)
(13th June, 2022)
ARRANGEMENT OF REGULATIONS
REGULATION
PART I
Preliminary
1. Citation
2. Interpretation
PART II
Investigations General
3. Application
4. Accident investigations
5. Form and conduct of investigations
6. Accident and Incident Investigation Manual
PART III
Accident Investigations, Advisers and Other Support Personnel
7. Accident Investigators
8. Powers of Accident Investigators
9. Conflict of interest
PART IV
Manner of Carrying Out Investigations
10. Who may carry out investigations
11. Notification of accidents and incidents
12. Notification of accident or incident involving civil aircraft by State of occurrence
13. Notice to public
14. Appointment of accredited representative, adviser, etc.
15. Accredited representatives and advisers from contracting States
16. Participation
17. Observers
18. Assistance to families and survivors
19. Removal of damaged aircraft
20. Protection of evidence, custody and removal of aircraft
21. Request from State of registry, State of the operator, State of design or State of manufacture
22. Flight recorders read-out
23. Autopsy examination
24. Co-ordination – judicial authorities
25. Re-opening of investigation
PART V
Investigation – Responsibility for Instituting and Conducting the Investigation
26. Accidents or incidents in the territory of Botswana
27. Accidents or incidents outside the territory of any State
28. Independence in conducting investigation
29. Designation of the investigator-in-charge
30. Responsibility to the State conducting the investigation
31. Responsibility of the State of registry and the State of the operator
32. Participation in the investigation
33. Participation of other States
34. Participation of States having suffered fatalities or serious injuries to their citizens
PART VI
Investigation Reports
35. Investigation reports
36. Service of notice
37. Publication of final report
PART VII
Reporting Systems and Databases, etc.
38. Incident reporting systems
39. Accident and incident database
40. Safety recommendations
PART VIII
Public Inquiries
41. Manner of carrying out public inquiries
42. Notice of inquiry
43. Powers of Commissioner
44. Proceedings at public inquiry
45. Submission of report by Commissioner
46. Re-opening of public inquiry
PART IX
General Provisions
47. Protection of accident and incident investigation records
48. Release and disposal of aircraft and wreckage
49. Return and disposal of records
50. Penalties
51. Revocation and savings
S.I. 74, 2022.
PART I
Preliminary (regs 1-2)
These Regulations may be cited as the Civil Aviation (Accident and Incident Investigation) Regulations.
In these Regulations, unless the context otherwise requires—
"accident investigation authority" means the authority designated by a State as responsible for aircraft accident and incident investigations;
"accredited representative" means a person designated by a State, on the basis of his or her qualifications, for the purposes of participating in an investigation conducted by another State;
"adviser" means a person appointed by a State on the basis of his or her qualifications for the purpose of assisting the State's accredited representative in an investigation;
"Air Traffic Service" means Air Traffic Services and includes flight information service, alerting service, air traffic advisory service, air traffic control service, area control service, approach control service and aerodrome service;
"automatic deployable flight recorder" means a combination flight recorder installed on the aircraft which is capable of automatically deploying from the aircraft;
"causes" means actions, omissions, events, conditions or a combination thereof which lead to an accident or incident, it does not imply the assignment of fault or the determination of administrative, civil or criminal liability;
"contracting State" means any State which is a party to the Chicago Convention;
"contributing factors" means actions, omissions, events, conditions, or a combination thereof, which, if eliminated, avoided or absent, would have reduced the probability of the accident or incident occurring, or mitigated the severity of the consequences of the accident or incident and the identification of contributing factors does not imply the assignment of fault or the determination of administrative, civil or criminal liability;
"flight recorder" means any type of recorder installed in an aircraft for the purpose of complementing accident and incident investigation;
"investigation" means a process conducted for the purpose of finding out the cause of an accident which includes the gathering and analysis of information, the drawing of conclusions including the determination of causes and contributing factors, when appropriate, the making of safety recommendations;
"investigator-in-charge" means an accident investigator charged with the responsibility for the organisation, conduct and control of an investigation;
"maximum mass" means maximum certificated take-off mass;
"non-contracting State" means any State which is not party to the Chicago Convention;
"pilot-in-command" means the pilot designated by the operator, or in the case of general aviation, the owner, as being in command and charged with the safe conduct of a flight;
"preliminary report" means the communication used for the prompt dissemination of data obtained during the early stages of an investigation;
"safety recommendation" means a proposal by the investigator-in-charge, based on the information derived from the investigation and made with the intention of preventing future accidents or incidents;
"serious injury" means an injury which is sustained by a person in an accident and which—
(a) requires hospitalisation for more than 48 hours, commencing within seven days from the date the injury was sustained;
(b) results in a fracture of any bone and excludes simple fractures such as of fingers, toes or nose;
(c) involves lacerations which cause severe haemorrhage, nerve, muscle or tendon damage;
(d) involves injury to any internal organ;
(e) involves second or third degree burns, or any burns affecting more than five per cent of the body surface; or
(f) involves verified exposure to infectious substances or injurious radiation;
"State of design" means the State having jurisdiction over the organisation responsible for the type design of the aircraft, engine or propeller;
"State of manufacture" means the State having jurisdiction over the organisation responsible for the final assembly of the aircraft, engine or propeller;
"State of occurrence" means the State in the territory of which an accident or incident occurs;
"State of the operator" means the State in which the operator's principal place of business is located or, if there is no such place of business, the operator's permanent residence;
"State of registry" means the State on whose register the aircraft has entered; and
"State Safety Programme (SSP)" means an integrated set of regulations and activities aimed at improving safety.
PART II
Investigations General (regs 3-6)
(1) These Regulations shall apply to activities following accidents and incidents involving Botswana registered aircraft wherever they occur and any accidents and incidents that occur within Botswana.
(2) The specifications concerning the State of the operator apply only when—
(a) an aircraft is leased, chartered or interchanged; and
(b) the State is not the State of registry, and if it discharges, in respect of these Regulations, in part or in whole, the functions and obligations of the State of registry.
(3) The sole objective of the investigation of an accident or incident shall—
(a) be the prevention of accidents and incidents; and
(b) not be to apportion blame or liability.
(1) Subject to section 75 of the Act, an investigation may be conducted to reveal hazards or deficiencies within the aviation system not directly connected with the causes of the accident or incident.
(2) An investigation into an accident or incident shall include among other things—
(a) the gathering, recording and analysis of all available information and evidence on the accident or incident;
(b) the determination of the facts, conditions and circumstances pertaining to the survival or non-survival of the occupants of the aircraft;
(c) where possible, the determination of the cause or contributing factors of an accident or incident;
(d) where appropriate, the issuance of safety recommendations; and
(e) the completion of the final report required under regulation 38.
5. Form and conduct of investigations
(1) An investigation shall not be open to the public.
(2) An Accident Investigator shall have independence and unrestricted authority in the conduct of an investigation in accordance with these Regulations.
(3) The extent of investigations and the procedure to be followed in carrying out investigations required or authorised under these Regulations shall be determined by the Director, taking into account—
(a) the objective of investigation as provided by the Act;
(b) the lessons expected to be drawn from the aircraft accident or incident;
(c) the complexity of the investigation; and
(d) the provision of Annex 13 to the Chicago Convention.
(4) Where, in the course of an investigation into an accident or a serious incident, it becomes known or is suspected that an act of unlawful interference was involved, an investigator-in-charge shall, after consultation with the Director—
(a) immediately inform all aviation security authorities and the police; or
(b) take steps to ensure that the aviation security authorities of other States concerned are informed of the fact.
(5) Any investigation conducted in accordance with these Regulations shall be independent from any judicial or administrative proceedings to determine blameworthiness or liability.
6. Accident and Incident Investigation Manual
(1) The Director shall prepare an Accident and Incident Investigation Manual which shall outline in detail the policies and procedures of the functions of the accident investigation.
(2) The manual shall also contain information and instructions on planning, investigation and reporting and any other information or instructions necessary to enable the Accident Investigators to perform their duties.
PART III
Accident Investigations, Advisers and Other Support Personnel (regs 7-9)
(1) The Director may, where—
(a) more than one Accident Investigator has been appointed to carry out an accident or incident investigation, appoint one of the Accident Investigators as an investigator-in-charge; and
(b) appropriate, appoint one Accident Investigator who shall be the investigator-in-charge.
(2) The investigator-in-charge shall be the first point of call on any issue regarding an accident or incident investigation to which he or she is in charge of.
(3) The Director may appoint any person or call upon the best technical expertise from any source to assist the investigator-in-charge or any other Accident Investigator in carrying out an investigation under these Regulations.
8. Powers of Accident Investigators
(1) In addition to the powers provided under section 72 of the Act, the Director and an investigator-in-charge shall have power to—
(a) order for immediate listing of evidence and the removal of debris or components for examination or analysis purposes;
(b) immediately access and use the contents of flight recorders, Air Traffic Services records and any other recording, which access shall be unrestricted;
(c) require the flight crew, passengers and aviation personnel involved in the accident or incident to undergo such other tests including breathalyser test within a reasonable time for the purposes of the investigation; and
(d) take measures, including the removal or the testing, for the preservation of or otherwise deal with any aircraft other than an aircraft involved in the accident or incident, where it appears to the Director, an investigator-in-charge or an Accident Investigator to be necessary for the purposes of the investigation.
(2) Without prejudice to the generality of subregulation (1), the Director may request another contracting State to provide such information, facilities or experts as the Director may consider necessary for the purposes of an investigation.
(1) The Director shall not appoint a person as an Accident Investigator if the person is directly or indirectly, as the owner, shareholder, director, officer, partner or otherwise, engaged in—
(a) an air transportation undertaking or business; or
(b) the manufacture or distribution of air transportation plant or equipment, except where the distribution is merely incidental to the general merchandising of goods.
(2) During the term of office of an Accident Investigator, in addition to the prohibitions under subregulation (1), the Accident Investigator shall not—
(a) accept or hold any office or employment; or
(b) carry on any activity, inconsistent with the performance of the investigator's duties.
PART IV
Manner of Carrying Out Investigations (regs 10-25)
10. Who may carry out investigations
(1) The Director may, with the approval of the Minister, delegate the task of carrying out an investigation into an accident or a serious incident to another contracting State or accident investigation authority by mutual consent or arrangement made in a Memorandum of Understanding for a specified period of time, or on ad hoc basis.
(2) Where the Director delegates the task of carrying out an investigation to another contracting State or accident investigation authority, he or she shall facilitate investigation carried out by the Accident Investigator appointed by the contracting State or accident investigation authority conducting the investigation.
(3) The Director may carry out, or cause an Accident Investigator to carry out, an investigation into an accident or incident where the task of carrying out the investigation has been delegated to Botswana by another contracting State.
11. Notification of accidents and incidents
(1) Any person who becomes aware of an accident or a serious incident that occurs in or over Botswana or outside Botswana which involves a Botswana registered aircraft or an aircraft operated by a Botswana operator, shall, as soon as is practicable after he or she becomes aware of the accident or serious incident, notify by indicating the place where the accident has occurred, to any of the following persons by the quickest means of communication available—
(a) the Director;
(b) the nearest Air Traffic Service or airport authority;
(c) the Police;
(d) military personnel; or
(e) the nearest local government authority.
(2) The persons listed in subregulation (1)(b) to (e), shall, on being notified of an accident or serious incident, immediately notify the Director.
(3) Subject to subregulation (1), the Director shall, not later than 24 hours after becoming aware of the accident or serious incident, record the following information—
(a) in the case of an accident, the identification abbreviation "ACCID" or, in the case of a serious incident, the identification abbreviation "INCID";
(b) the manufacturer, model, nationality, registration marks and serial number of the aircraft;
(c) the name of the owner, operator or hirer, if any, of the aircraft;
(d) qualification of the pilot-in-command;
(e) nationality of crew and passengers;
(f) the date and time (local time or UTC) of the accident or serious incident;
(g) the last point of departure and the point of intended landing of the aircraft;
(h) the location of the accident or incident with reference to some easily defined geographical point and the latitude and longitude;
(i) the number of crew members, passengers or other persons respectively killed or seriously injured as a result of the accident;
(j) a description of the accident or serious incident and the extent of damage to the aircraft;
(k) an indication as to the extent of the conduct of the investigation or the extent of the investigation proposed to be delegated by the Director;
(l) the physical characteristics of the area in which the accident or serious incident occurred and an indication of access difficulties or special requirements to reach the site;
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