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INTEGRATED CIVIL AVIATION ACT CONTENT PROPOSAL

Table of Contents

1.   PRELIMINARY (OR GENERAL) PROVISIONS ......................................... 1  

1.1.   Short title ................................................................................................. 1  1.2.   Scope of the Act ...................................................................................... 1  1.3.   Commencement ...................................................................................... 1  1.4.   Definitions ................................................................................................ 1  1.5.   International rules .................................................................................... 1  1.6.   Civil Aviation Registry .............................................................................. 2  

2.   SOVEREIGNTY AND USE OF AIRSPACE ............................................... 2  2.1.   Exclusive sovereignty over airspace of Nepal ......................................... 2  2.2.   Airspace use and airspace violations ...................................................... 2  2.3.   Prohibited and Restricted airspace areas ................................................ 3  2.4.   Designated customs airport ..................................................................... 3  2.5.   Rules of the air ........................................................................................ 4  2.6.   Prohibition of Certain Suits: ..................................................................... 4  

3.   AIR TRANSPORT ...................................................................................... 4  3.1.   Open Skies Principle ............................................................................... 4  3.2.   Commercial and non commercial air transport ........................................ 4  3.3.   International and domestic air transport .................................................. 5  3.4.   Scheduled and non scheduled air transport ............................................ 5  3.5.   International and multilateral services agreements ................................. 5  3.6.   Foreign ownership ................................................................................... 5  3.7.   Air transport certificates and permits or licenses ..................................... 5  3.8.   Insurance requirements ........................................................................... 6  3.9.   Carrier liability .......................................................................................... 6  3.10.  Dangerous goods .................................................................................... 7  3.11.  Transportation documents ....................................................................... 7  

4.   AIRCRAFT .................................................................................................. 7  4.1.   Technical requirements ........................................................................... 7  4.2.   Registration and nationality ..................................................................... 7  4.3.   Airworthiness ........................................................................................... 8  4.4.   Operation ................................................................................................. 8  4.5.   Maintenance ............................................................................................ 8  4.6.   Sate aircraft ............................................................................................. 9  4.7.   Documents on board ............................................................................... 9  

5.   SAFETY ...................................................................................................... 9  5.1.   State Safety Aviation Program ................................................................ 9  5.2.   In flight safety .......................................................................................... 9  

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5.3.   On the ground safety ............................................................................. 10  5.4.   Aviation safety oversight ........................................................................ 10  5.5.   Investigation of accidents and incidents ................................................ 10  

6.   SECURITY ............................................................................................... 11  6.1.   Aviation Security .................................................................................... 11  6.2.   Airport Security ...................................................................................... 12  6.3.   Aircraft Security ..................................................................................... 13  

7.   PERSONNEL ........................................................................................... 14  7.1.   Flight personnel ..................................................................................... 14  7.2.   Air Traffic control personnel ................................................................... 14  7.3.   Flight Operations Officers/Flight Dispatchers ........................................ 14  7.4.   Maintenance personnel ......................................................................... 14  

8.   AERODROMES ........................................................................................ 15  8.1.   Aerodrome classification: Aerodromes are classified as follows ........... 15  8.2.   Airport: Any aerodrome used for purposes of commercial air transportation. ................................................................................................. 15  8.3.   Aerodrome establishment ...................................................................... 15  8.4.   Aerodrome construction ........................................................................ 15  8.5.   Aerodrome operation ............................................................................. 16  8.6.   Certification ............................................................................................ 16  8.7.   Nepal airports system ............................................................................ 16  8.8.   Nepal Airports System ownership and operation .................................. 17  8.9.   Private participation ............................................................................... 17  8.10.  Joint use of military/civilian facilities ...................................................... 18  8.11.  Aerodrome tariffs ................................................................................... 18  8.12.  Airport vicinity protection ....................................................................... 18  8.13.  Environnemental protection: noise and air pollution .............................. 20  

9.   AIR NAVIGATION SERVICES ................................................................. 21  9.1.   Nepal Air Navigation System ................................................................. 21  9.2.   Scope of NANS ..................................................................................... 21  9.3.   Charges ................................................................................................. 21  9.4.   Types of air navigation services ............................................................ 21  9.5.   Air traffic services .................................................................................. 21  9.6.   Aeronautical telecommunication services ............................................. 22  9.7.   Aeronautical information services .......................................................... 22  9.8.   Aeronautical meteorological services .................................................... 22  9.9.   Search and rescue services .................................................................. 22  9.10.  Air navigation services personnel .......................................................... 23  9.11.  Air navigation facilities and protected areas .......................................... 23  

10.   POWERS OF GOVERNMENT OF NEPAL .............................................. 23  10.1.  Power to frame rules ............................................................................. 23  10.2.  Power to issue orders ............................................................................ 25  

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10.3.  Government of Nepal may, by an order or regulation published in the Nepal Gazette, or by a specific decision implementing such an order or regulation, do as following if it deems necessary for public safety, peace and order: .............................................................................................................. 25  10.4.  Power to enter into agreements ............................................................ 26  10.5.  Power to detain aircraft .......................................................................... 26  10.6.  Power to frame rules for the protection of public health ........................ 27  10.7.  Emergency powers for the protection of public health ........................... 27  10.8.  Powers may be Delegated: ................................................................... 27  10.9.  Granting Waivers: .................................................................................. 28  

11.   CIVIL AVIATION AUTHORITY OF NEPAL .............................................. 28  11.1.  Establishment of the Authority ............................................................... 28  11.2.  Denomination and legal personality ...................................................... 28  11.3.  Offices ................................................................................................... 28  11.4.  Independent authority ............................................................................ 29  11.5.  Regulatory and oversight functions ....................................................... 29  11.6.  Service Provision Functions, Duties and Powers of the Authority: ........ 31  11.7.  Separation of functions .......................................................................... 31  11.8.  Powers of CAAN officers and inspectors ............................................... 31  11.9.  Land acquisition ..................................................................................... 32  11.10.   Power to frame rules and guidelines ............................................... 32  11.11.   Financial resources ......................................................................... 32  11.12.   Fund of the Authority ....................................................................... 33  11.13.   Accounts and audit .......................................................................... 33  11.14.   Board of Directors ............................................................................ 33  11.15.   Director General, Advisor and other Employees: ............................ 35  11.16.   Functions, Duties and Powers of the Director General: .................. 35  11.17.   Restrictions on Chairperson, the Members, Director General, the Advisors and Employees of the Authority: ...................................................... 36  11.18.   Protection of Good faith ................................................................... 36  11.19.   Liaison with Government of Nepal ................................................... 36  

12.   OFFENSES AND PENALTIES ................................................................. 36  12.1.  Punishment for the violation of this Act or any Rule framed under this Act: 36  12.2.  Offence and Punishment: ...................................................................... 37  12.3.  Aircraft in flight or in service: For the purposes of this Act: ................... 39  12.4.  Conditions to which Section XX. Applies: The provisions of Section XX shall apply to the following conditions: ........................................................... 39  12.5.  Jurisdiction: ............................................................................................ 39  12.6.  Power to Arrest: ..................................................................................... 40  12.7.  Accused or offender may be extradited: ................................................ 41  12.8.  To return the Seizure of aircraft and allow to make flight: ..................... 41  

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12.9.  Jurisdiction under other Laws of Nepal: Notwithstanding anything contained in this Act with respect to punishment for and proceedings in the offenses under Section 9A., it shall not be deemed to exclude or limit the exercise of criminal jurisdiction conferred by the existing laws. ..................... 41  12.10.   Recognition of International conventions relating to the Prevention of unauthorized Interference in Air Service: ....................................................... 41  12.11.   Penalties for those Flying an Aircraft in a dangerous way: .............. 42  12.12.   Penalties for access to the restricted areas without permission: ..... 42  12.13.   To make searches of passenger, or any other persons or goods: .. 42  12.14.   Penalties for abetment or attempt of offenses: ................................ 44  12.15.   The Authority to hear cases, and proceedings for such cases: ....... 44  12.16.   Government to be the Plaintiff: ........................................................ 44  

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INTRODUCTION The purpose of this document is to submit a proposal for debate in which the full contents of a possible new civil aviation act is presented in a structured way. Despite the fact that the proposal follows a structure similar to that of a possible new act, the text intentionally avoids any reference to “chapters”, “sections” or “articles” in order to underline the fact that this is not a legislative draft, but rather the presentation of the contents that could be included in a new act. The wording of this proposal is relatively “rough” in as much as it does not intend to assume the role of “draft legislation”. The intention has been to convey ideas and not to present a refined text proposal. Once an agreement has been reached on the contents, then it will be time to prepare a “draft” with all the attributes necessary to initiate a “legal debate”. The consultant is aware, nevertheless, of the fact that even if a “draft” is produced as a result of the debate over this content proposal, the real “draft bill” may only come from the national authorities. This content proposal is based on the conclusions of the workshop held in the month of September, and therefore, presents the integration of the Civil Aviation Act and the CAAN Act into a single text and separates regulatory and service provision functions by maintaining the current institutional status of CAAN in a purely regulatory capacity, and contemplating the establishment of a public company for airports and ANS. A large part of the proposed contents is new if compared to the existing legislation, but there are some parts which are taken directly from the current Acts. This is the case with the regulation of the CAAN, which is an adaptation of the current CAAN Act, by removing the references to direct involvement in service provision and adding some provisions which are considered necessary to comply with ICAO’s view of the role of an agency dealing with regulation and safety oversight. The part where the powers of the Government of Nepal are enumerated is, likewise, an adaptation of the current CA Act, with some modifications and the addition of some functions which would also be best to include explicitly in order to comply with the USOAP report. Finally, the part on Offences and Penalties has been transcribed in its entirety and will have to be reviewed at the end of the process when the rest of the act

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has been clearly defined. It is included here mostly in order to provide an idea of what the totality of an integrated act may be like. In the text there are some sentences or paragraphs that have been included between double square brackets [[]] in order to indicate that these are alternatives on which a decision will have to be made. Whenever texts taken from the existing Acts are modified, the proposal is underlined for greater clarity.

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1. PRELIMINARY (OR GENERAL) PROVISIONS

1.1. Short title This Act may be called "The Civil Aviation Act, …...... 1.2. Scope of the Act 1.2.1. This Act shall apply to all public and private activities relating to civil

aviation conducted within the territory and airspace of Nepal, and particularly to:

a) Aircraft registered in Nepal regardless of their location b) Personnel licensed according to this Act, regardless of where they are

located. c) Aircraft registered in other states while they are within Nepali territory or

airspace. d) Users of aeronautical services within Nepal or in aircraft registered in

Nepal. e) Providers of aviation related services regulated under this Act.

1.2.2. The provisions of this Act shall not apply to aircraft, personnel or

facilities used exclusively for purposes of the Armed forces, unless engaged in the provision of transport services for hire or reward.

1.2.3. [[¿Exclude also all state aircraft (i.e. customs, police, etc.)?]] 1.3. Commencement This Act shall come into force from such date as Government of Nepal by a Notification published in the Nepal Gazette, may appoint. 1.4. Definitions ……………… [[To be drafted when the text is completed]] 1.5. International rules 1.5.1. The provisions of the Chicago Convention and the Convention of

Montreal of 1999 and the related international treaties and agreements, signed and ratified by Nepal, are considered complementary to this Act.

1.5.2. [[In case of conflict, the provisions of the related international treaties and agreements shall prevail. ]]

1.5.3. [[In the absence of national legislation the international treaties will be applied]]

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1.5.4. The standards and recommended practices adopted as annexes to the Chicago Convention shall be applied in Nepal as prescribed by CAAN.

1.6. Civil Aviation Registry 1.6.1. CAAN will maintain the Civil Aviation Registry of Nepal in which

records shall be entered and kept regarding: a) Aircraft registered in Nepal b) Aerodromes operating within the territory of Nepal c) [[Airlines holding AOCs or licences]] d) [[maintenance organizations]]

2. SOVEREIGNTY AND USE OF AIRSPACE

2.1. Exclusive sovereignty over airspace of Nepal The State of Nepal has full and exclusive sovereignty over the airspace of Nepal. 2.2. Airspace use and airspace violations 2.2.1. No scheduled international air service flight operated by a company

registered in a state other than Nepal may enter, overfly or land on the territory of Nepal without prior permission from the Government of Nepal or in accordance with international or bilateral agreements granting such privileges.

2.2.2. Foreign civil aircraft operating non-scheduled flights may enter the airspace of Nepal and make in-transit technical stops without authorization from the government of Nepal, provided they fulfill all conditions established under the Chicago Convention and follow applicable rules for the use of airspace, communications and airports in Nepal. Whenever non scheduled flights from other signatories of the Chicago Convention wish to take or discharge passengers or cargo within Nepalese territory they will be able to do so subject to obtaining prior permission in accordance with the conditions or regulations as prescribed by the Government of Nepal.

2.2.3. No state aircraft from foreign States may enter the airspace of Nepal without special authorization from the Ministry in charge of Defense. Aircraft used in military, customs and police services shall be deemed to be state aircraft. Any aircraft commanded by a person in military service detailed for the purpose shall be deemed to be a military aircraft.

2.2.4. No aircraft capable of flying without a pilot shall be flown without a pilot over the territory of Nepal unless previously authorized by CAAN and in accordance with the conditions set in the authorization.

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2.2.5. Any aircraft found to be in violation of the airspace of Nepal may be ordered to leave the airspace of Nepal or required to land on a stipulated airbase or airport within the territory of Nepal.

2.2.6. All flights originating or with destination to an airport outside Nepal shall land or take off at an airport designated as an international airport. Except in emergency situations.

2.3. Prohibited and Restricted airspace areas 2.3.1. Government of Nepal [[The Director of CAAN]] can designate airspace

areas in which flight may be totally prohibited or restricted under special conditions.

2.3.2. Such prohibitions and restrictions may be of a permanent or temporary nature

2.3.3. Permanent airspace prohibitions and restrictions shall be made public in the Gazette and temporary restrictions will be notified by means of aeronautical publication.

2.3.4. Unauthorized flight within airspace prohibited or restricted areas will be considered a punishable offence and aircraft shall be required to leave the prohibited or restricted airspace area or to land in an airbase or aerodrome within the territory of Nepal in accordance with 2.2.5

2.3.5. Aircraft may also be ordered to land at a designated airbase or aerodrome if there are reasonable grounds to conclude that it is being used for any purpose inconsistent with the aims of the Chicago Convention.

2.3.6. Enforcement of orders issued in case of airspace or restricted area violation shall take place without resorting to the use of weapons against civil aircraft in flight and, in case of interception action shall be takn in such way that the lives of persons on board and the safety of aircraft will not be endangered. Interception of civil aircraft, if necessary, shall take place in accordance with Appendix 2 of Annex 2 to the Chicago Convention.

2.4. Designated customs airport 2.4.1. Government of Nepal may designate specific airports for the purpose

of customs and other examinations at the time of landing or departure. 2.4.2. Nepal authorities have the right to search all aircraft and to inspect

certificates and other documents required by law or international convention.

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2.5. Rules of the air 2.5.1. All aircraft entering Nepal airspace or bearing Nepal’s nationality marks

must comply with the rules of the air as adopted by Government of Nepal in compliance with article 12 of the Chicago Convention.

2.6. Prohibition of Certain Suits: 2.6.1. If any person makes flight of an aircraft in any height over the assets of

a person and that flight is reasonable on account of wind, weather, and other circumstances, no civil suit shall be initiated in any court against him/her for his/her trespassing to others assets or causing direct or indirect damage or loss to others by reason only of making such flight or any ordinary incident resulted from such flight.

3. AIR TRANSPORT

3.1. Open Skies Principle 3.1.1. Air transport activities within Nepal and between Nepal and

international destinations shall be operated under the open skies principle, in accordance with such bilateral and multilateral air services agreements as may be in force from time to time.

3.1.2. Government of Nepal will adopt the necessary measures to ensure the gradual implementation of the open skies principle to domestic and international air services through the adoption of transparent procedures based on objective criteria.

3.2. Commercial and non commercial air transport 3.2.1. Air transport activities can be classified as commercial and non-

commercial. 3.2.2. Commercial air transport is any aircraft operation involving the

transport of passengers, cargo or mail for remuneration or hire. 3.2.3. All other air transport activities shall be considered non commercial,

including: a) Aerial work: An aircraft operation in which an aircraft is used

commercially or non commercially for specialized services such as agriculture, construction, photography, surveying, observation and patrol, search and rescue, aerial advertisement, etc.

b) General aviation: All civil aviation operations other than scheduled air services and non-scheduled air transport operations for remuneration or hire or aerial work.

c) Training: Civil aviation operations conducted for the purpose of personnel training.

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3.3. International and domestic air transport 3.3.1. Domestic air transport takes place only between airports within Nepal

and is operated by a company having its principal place of business in Nepal.

3.3.2. International air transport originates or terminates in a State other than Nepal, or takes place entirely within the territory of Nepal but is operated by an air carrier not having its principal place of business in Nepal.

3.4. Scheduled and non scheduled air transport 3.4.1. Air transport services are considered as scheduled when they meet all

the following requirements: 1. Operated for transport of passengers, cargo or mail for remuneration, in

such a manner that each flight is open to use by members of the public; and

2. Operated so as to serve traffic between the same two or more airports, either: a) in accordance with a published timetable; or b) with flights so regular or frequent that they constitute a recognizably

systematic series; 3.5. International and multilateral services agreements Government of Nepal may enter into international, bilateral or multilateral agreements for the purpose of regulating air transport services to be operated within the territory of Nepal by air carriers not having its principal place of business in Nepal as well as services to be provided by Nepalese air carriers outside Nepal territory. 3.6. Foreign ownership 3.6.1. Nepali air transport operators must disclose foreign ownership of

interest shares in the company. 3.6.2. Government of Nepal may impose limits to the percentage of foreign

ownership in Nepalese air transport operators as well on the exercise of any control rights over such company. (National Aviation Policy 2063)

3.7. Air transport certificates and permits or licenses 3.7.1. Air Operator Certificate (AOC) 3.7.2. No one shall operate an aircraft for commercial air transport purposes

without an Air Operator Certificate.

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3.7.3. Government of Nepal will determine by regulations the requirements needed to obtain an AOC for operators having their residence or principal place of business in Nepal.

3.7.4. [[All persons wishing to engage in commercial air transport in Nepal must obtain previously an Airline Operator License.

Government of Nepal will determine by regulation the requirements to be met in order to obtain an Airline Operator License, regarding: a) Prior Air Operator Certificate b) Financial guarantees c) Adequate infrastructure, facilities, staff and organization. d) Liability insurance e) Compliance with the National Aviation Security Program f) Any other requirements considered applicable]]1

3.7.5. [[Special requirements for foreign operators??]] 3.7.6. [[Any person engaging in aerial work in Nepal must obtain previously

an Aerial Work License. An Aerial Work License may be granted to holder of Air Operator Certificate who meet such requirements as prescribed by Government of Nepal.]]

3.8. Insurance requirements 3.8.1. In order to obtain and maintain the AOC all operators must subscribe

adequate insurance as prescribed by Government of Nepal. 3.8.2. Insurance requirements will be set differently for different types of air

services and/or aircraft. 3.8.3. Holders of Airline Operator Licenses must hold adequate insurance for: a) Carrier liability b) Comprehensive insurance covering at least passengers, personnel and

cargo c) Third party liability in the amounts prescribed by government of Nepal d) War risk 3.9. Carrier liability Carrier liability will be required to meet the requisites of the Warsaw Convention as amended

1 Some countries require not only an AOC, but also an Airline Operator License as a separate document. It is not necessary to follow this approach.

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3.10. Dangerous goods Government of Nepal shall regulate air transport of dangerous goods in order to implement Annex 18 to the Chicago Convention. 3.11. Transportation documents Air transport operators are required to issue transportation documents for passengers, baggage and cargo as prescribed by Government of Nepal in accordance with the Warsaw Convention. 4. AIRCRAFT

4.1. Technical requirements No aircraft will be permitted to operate within the territory of Nepal without the appropriate type certificate or certificates as prescribed by CAAN. 4.2. Registration and nationality 4.2.1. No civilian aircraft shall be permitted to operate in Nepal unless it is

properly registered in Nepal, in another State signatory of the Chicago Convention or an international operating agency.

4.2.2. Any aircraft bearing the nationality mark of Nepal must be registered in the Civil Aviation Registry of Nepal.

4.2.3. Government of Nepal will regulate the requirements and procedures for registration in the Civil Aviation Registry and for validation and recording in said Registry of aircraft registered in another State or international operating agency.

4.2.4. Aircraft registration may be cancelled or revoked as prescribed by Government o Nepal.

4.2.5. No aircraft may be registered in more than one State. 4.2.6. Aircraft have the nationality of the State in which they are registered. 4.2.7. All aircraft registered in Nepal will bear registration, nationality marks

and identification plate as prescribed by Government of Nepal. 4.2.8. Nationality, registration marks and identification plates on aircraft

registered in another State will conform to the rules and regulations of the State of registration and the prescriptions of the Chicago Convention and Annex 7 thereof.

4.2.9. Government of Nepal may enter into agreements with other States for the transfer of functions and duties from the State of registration to the State where the operator has his residence or permanent place of business in accordance with article 83bis of the Chicago Convention.

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4.3. Airworthiness 4.3.1. No civilian aircraft will be allowed to operate in Nepal without a valid

certificate of airworthiness issued or validated by CAAN. 4.3.2. Government of Nepal will regulate, in accordance with Annex 8 to the

Chicago Convention, the requirements and procedures for issuing, validating, renewing, keeping in force, suspending and cancelling the certificates of airworthiness for aircraft, aircraft engineering and maintenance, as well as licensing/approving persons and approving organizations.

4.4. Operation 4.4.1. No civilian aircraft will be allowed to operate in Nepal unless all the

following requirements are met: a) The aircraft is covered by a valid Certificate of Registration b) The aircraft is covered by a valid Certificate of Airworthiness c) The aircraft operator is in possession of a valid Air Operator

Certificate (AOC) d) [[The aircraft operator is in possession of a valid Airline Operator

License or an Aerial Work Operator License if the aircraft is to be used for air transportation or aerial work purposes.]]

e) Personnel operating the aircraft are in possession of valid certificates of competency, licenses, ratings or authorizations issued or validated by the State of registration or the State of the operator.

f) All prescribed documents are carried on board. [[¿¿Flight Permit?? Chapter 9 Regulations 20582]] 4.5. Maintenance 4.5.1. All aircraft operating in Nepal must be ensured continuing airworthiness

through the implementation of appropriate maintenance programs and practices as prescribed by Government of Nepal in accordance with the standards and recommended practices approved or adopted by the International Civil Aviation organization under the Chicago Convention.

4.5.2. Maintenance activities may only undertaken by: a) The holder of an Air Operator Certificate b) An organization holding a maintenance certificate c) Specialized personnel in possession of a maintenance license.

2 Should the Act contain any provision on the subject of the Flight Permit?. This is a topic which could be probably be left entirely for the Regulations.

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4.5.3. Government of Nepal shall regulate the requirements and procedures for issuing, renewing, cancelling and suspending or revoking maintenance certificates and licenses.

4.6. Sate aircraft Government of Nepal shall regulate the requirements and procedures applicable to state aircraft with regard to airworthiness, maintenance and operation. 4.7. Documents on board All aircraft operating in Nepal, [[engaged in international navigation]], shall carry the following documents in conformity with the conditions prescribed n the Chicago Convention and the regulations adopted by Government of Nepal: a) Its certificate of registration; b) Its certificate of airworthiness; c) The appropriate licenses for each member of the crew; d) Its journey log book; e) If it is equipped with radio apparatus, the aircraft radio station license; f) If it carries passengers, a list of their names and places of embarkation and

destination; g) if it carries cargo, a manifest and detailed declarations of the cargo. 5. SAFETY

5.1. State Safety Aviation Program 5.1.1. The Civil Aviation Administration of Nepal shall establish a State Safety

Program aimed at achieving an acceptable level of safety in civil aviation operations in accordance with the standards and recommended practices of the Annexes to the Chicago Convention.

5.1.2. CAAN shall adopt, or submit for adoption, the regulatory instruments required for the implementation of the State Safety Program.

5.1.3. CAAN shall have the necessary powers to enforce the State Safety Program and safety related rules and regulations, including the power to detain any civil aircraft, inspect aircraft and operators or service providers premises, withhold, suspend or revoke licenses, permits or certifications, require and inspect documentation and adopt any coercive and punitive measures as established in this act or the implementing regulations.

5.2. In flight safety

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In flight safety is the principal responsibility of the pilot in command, who will have authority to take action as needed for the purpose of ensuring safety during flight. 5.3. On the ground safety 5.3.1. CAAN inspectors and designated personnel shall have the power to

search any civil aircraft on landing and departure and to inspect the certificates and other documents prescribed by the Convention and its Annexes.

5.3.2. CAAN inspectors and designated personnel shall have the power to inspect service providers and air operators premises for the purpose of enforcing safety standards.

5.4. Aviation safety oversight 5.4.1. Aviation safety oversight is the primary responsibility of CAAN. To that

end, the authority will enjoy all necessary powers to implement the SSP and require all parties participating in aviation activities to adopt and implement adequate safety practices in accordance with such SSP, Nepalese regulations and ICAO’s standards and recommended practices.

5.4.2. CAAN shall exercise safety oversight powers over any aircraft flying over or maneuvering over Nepalese territory in order to implement and enforce the rules of the air as adopted by Nepal.

5.4.3. CAAN safety oversight powers shall extend to all aircraft registered in Nepal, regardless of their ownership and location, except in cases of aircraft lease, charter or interchange in which Nepal has transferred its functions and duties to another State in accordance with article 83bis of the Chicago Convention.

5.5. Investigation of accidents and incidents 5.5.1. Government of Nepal shall institute an inquiry into the circumstances of

any accident arising out of the air navigation over the territory of Nepal involving death or serious injury, or indicating serious technical defect in the aircraft or air navigation facilities. The actual conduct of the investigation may be delegated in the whole or in part to another State by mutual agreement and consent;

5.5.2. Government of Nepal shall adopt regulations relating to the investigation of any accident arising out of the air navigation over the territory of Nepal or the flight over elsewhere of an aircraft registered in Nepal; such Rules shall come into force after having been published in the Nepal Gazette.

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5.5.3. Without prejudice to the generality of the powers conferred under other parts of this Act, the following matters shall be provided for in such regulations:

a) Providing information of accidents, the form of such notice and the informant thereof,

b) Grant the authority in charge of the investigation full and immediate access to all relevant evidence without requiring prior consent from judicial bodies or other authorities,

c) Prohibit access to or interference with aircraft to which an accident has occurred until the investigation thereof concludes, and empower any person to have access to such aircraft for the purposes of investigation, examine, remove, take measures for the preservation of or otherwise deal with any such aircraft,

d) Where it is deemed necessary in course of the investigation of the accident, cause to, require to or empower to require to the cancellation, suspension, endorsement or, surrender of any license or certificate granted or recognized in accordance with this Act or prevailing law, and cause to present any such license for the purposes of such investigation,

e) Allow the State in which the aircraft is registered the opportunity to appoint observers to be present in the inquiry,

f) Ensure that the investigation is conducted with the sole purpose of accident prevention and in such a way that it is separated from any other judicial or administrative inquiry,

g) Facilitate entry into Nepal to family members, relevant authorities, and authorized representatives of the operator as well as provide assistance to survivors and victim’s families, and

h) Publish a final report with the results of the investigation and communicate the findings to the State where the aircraft is registered.

5.5.4. Government of Nepal shall designate an independent authority for the purpose of accident and incident investigation.

6. SECURITY

(see also offences and penalties) 6.1. Aviation Security 6.1.1. Government of Nepal shall adopt and implement a National Security

Program to safeguard civil aviation operations against acts of unlawful interference.

6.1.2. Government of Nepal shall have competence to exercise jurisdiction over offences and acts committed on board aircraft registered in Nepal.

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6.1.3. Government of Nepal shall take such measures as may be necessary to establish its jurisdiction over offences committed on board aircraft registered in Nepal.

6.1.4. Government of Nepal may interfere with aircraft in flight within Nepal airspace regardless of the State of registration in order to exercise criminal legislation when an offence is committed on board an aircraft which:

a) has an effect on the territory of Nepal; b) is committed by a national of Nepal or one of its permanent residents; c) affects security; d) consists of a breach of any of Nepal’s rules or regulations relating to

the flight or maneuver of the aircraft; e) requires the exercise of jurisdiction in order to ensure observance of

obligations under multilateral treaties. 6.1.5. Any act or omission taking place on board an aircraft registered in

Nepal while in flight outside Nepalese airspace which, would constitute an offence under Nepalese law if taking place in Nepal, constitutes that offence unless such act or omission is expressly or impliedly authorized by or under Nepalese law when taking place outside the territory of Nepal.

[[Nepal has not signed the Montreal Protocol of 1988, nor the Convention on the Marking of Explosives. In 2010 Nepal signed the Beijing Convention and Protocol, but there has been no ratification yet]] 6.2. Airport Security 6.2.1. Airport operators are required to establish and implement an Airport

Security Program in accordance with the National Security Program. 6.2.2. CAAN shall designate at each airport an authority responsible for

coordinating the implementation of security controls. 6.2.3. At each airport there will be established an Airport Security Committee

to assist the aviation security authority in the coordination of the implementation of security controls and procedures.

6.2.4. Airports shall establish security restricted areas, adopt and implement procedures and identification systems for persons and vehicles and ensure adequate supervision over the movement of persons and vehicles to prevent unauthorized access to aircraft and restricted areas.

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6.3. Aircraft Security 6.3.1. Aircraft operators operating in and from Nepal are required to establish

and implement an operator security program in accordance with the National Security Program.

6.3.2. The commander of an aircraft registered in Nepal or flying over Nepal, may take reasonable measures, including restraint of his or her person or disembarking, whenever such commander has reasonable grounds to believe in respect of any person on board the aircraft:

a) that the person in question has done or is about to do any act on the aircraft while it is in flight which jeopardises or may jeopardise the safety of the aircraft or of persons or property on board the aircraft or the good order and discipline on board the aircraft; or

b) that the person in question has done on the aircraft while in flight any act which in the opinion of the commander is a serious offence under any law in force in Nepal.

6.3.3. For the purpose of adopting the measures mentioned in 6.3.2 above, the aircraft commander may require any member of the crew or ask any other person on board to render assistance in restraining any person whom the commander is entitled to restrain.

6.3.4. Measures of restraint imposed upon a person in accordance with paragraph 6.3.2 above shall not be continued beyond any point at which the aircraft lands unless:

a) the authorities refuse to permit disembarkation of that person b) the restrain measures have been imposed in order to deliver such

person to the competent authorities; c) the aircraft makes a forced landing and the aircraft commander is

unable to deliver that person to competent authorities; or d) the restrained person agrees to onward carriage under restraint.

6.3.5. The aircraft commander may disembark any person whenever he or she has reasonable grounds to believe that it is necessary to do so in order to protect the safety of the aircraft or of persons or property on board the aircraft or to maintain good order and discipline on board the aircraft. Upon disembarking, the person shall be delivered to a police officer or immigration officer or any officer performing such functions. The aircraft commander shall report the disembarkation and the reasons thereof to an appropriate officer of the State of disembarkation.

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7. PERSONNEL

7.1. Flight personnel 7.1.1. A person shall not act as a flight crew or cabin crew member of an

aircraft unless a valid license or certificate is held showing compliance with the prescribed specifications and rating appropriate to the duties to be performed by that person.

7.1.2. CAAN shall issue licenses and certificates for the crew of aircraft registered in Nepal and shall validate licenses issued by other states.

7.1.3. CAAN shall establish the personal, professional, linguistic and medical requirements as well as the procedure to be applied for the issuing renewing or validating of crew members licenses and ratings, as well as the circumstances and procedure for variation, suspension and cancellation of said licenses and certificates.

7.2. Air Traffic control personnel 7.2.1. A person shall not be involved in the controlling of aircraft as an Air

Traffic Controller unless he or she holds a valid Air Traffic Controller License and rating or operates under the conditions determined by CAAN.

7.2.2. CAAN shall establish the personal, professional, linguistic and medical requirements as well as the procedure to be applied for the issuing, renewing or validating of Air Traffic Controller Licenses, as well as the circumstances and procedure for variation, suspension and cancellation of said licenses.

7.3. Flight Operations Officers/Flight Dispatchers 7.3.1. A person shall not dispatch an aircraft as a Flight Operations

Officer/Flight Dispatcher unless he or she holds a valid license or certificate showing compliance with the prescribed specifications and appropriate to the duties to be performed by that person.

7.3.2. CAAN shall establish the personal, professional and linguistic requirements as well as the procedure to be applied for the issuing, renewing or validating of Flight Operations Officer/Flight Dispatcher Licenses, as well as the circumstances and procedure for variation, suspension and cancellation of said licenses.

7.4. Maintenance personnel 7.4.1. A person shall not carry out any aircraft maintenance work, as a

maintenance person, unless he or she holds a valid license or authorization and a Type Rating showing compliance with the prescribed specifications and appropriate to the duties to be performed by that person.

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7.4.2. CAAN shall establish the personal and professional requirements as well as the procedure to be applied for the issuing renewing or validating of maintenance personnel license or authorization, as well as the circumstances and procedure for variation, suspension and cancellation of said licenses and authorizations.

8. AERODROMES

8.1. Aerodrome classification: Aerodromes are classified as follows 8.1.1. Public use aerodromes: Aerodromes open to use by any aircraft

meeting the required technical specifications without prior permission and according to operating hours and conditions published in AIS.

8.1.2. Restricted use aerodromes: Aerodromes where the airport operator permission is required before an aircraft can use it. Restricted use aerodromes may be:

a) Government operated: Aerodromes reserved for use by the Ministry of Defense or other branches of Government, as well as any other public administration authorized to use the aerodrome for public purposes.

b) Private aerodromes: Aerodromes which can only be used by the owner, gests or members of a particular organization.

8.2. Airport: Any aerodrome used for purposes of commercial air transportation. Airports at which facilities are available for the formalities incident to customs, immigration, quarantine and other requirements in connection with arrival in or departure of aircraft from Nepal territory, may be designated as international airports.

8.3. Aerodrome establishment 8.3.1. No aerodrome shall be established in Nepal without prior written

consent of the Government of Nepal. 8.3.2. Government of Nepal may delegate to CAAN the power to authorize

the establishment of aerodromes not to be considered as airports. 8.3.3. The Civil Aviation Authority of Nepal shall advise the Government of

Nepal on the suitability of the area where the new aerodrome would be established taking into account existing national policy and planning as well as impact on airspace organization.

8.4. Aerodrome construction 8.4.1. Aerodrome initiatives having obtained the Government prior consent

for their establishment shall submit to the CAAN a master plan and will initiate environmental and consultation procedures as prescribed.

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8.4.2. Following the approval by CAAN of the aerodrome master plan, the construction project will be submitted to said Authority for approval according to national regulations and international standards and recommended practices.

8.4.3. Aerodrome construction projects shall be subject to environmental impact assessment in accordance with the law.

8.4.4. The aerodrome construction permit granted by CAAN will empower the applicant to initiate construction according to the approved project [[without any further permit from Government of Nepal, local or provincial administration]] [[ALTERNATIVE: Government of Nepal may exempt specific aerodrome projects from obtaining any further license or permit in order to initiate construction.]]

8.4.5. In granting aerodrome construction permits CAAN shall take into account the environmental impact of the project in accordance with national law on environmental impact assessment.

8.4.6. Aerodrome master plans shall include the land in the vicinity of the aerodrome which should be reserved for future aerodrome development. Town planning documents and authorities shall take into consideration the land designated for future aerodrome development and will allow only such uses and activities as are compatible with such future development.

8.4.7. Aerodrome master plans shall identify the land to be included in the Airport Vicinity Protection Area as defined in 8.12.

8.5. Aerodrome operation 8.5.1. No aerodrome may commence operation without prior registration in

the Civil Aviation Register of Nepal. 8.5.2. No aerodrome shall commence operation prior to obtaining an

operation license from the CAAN. CAAN regulations shall determine the procedure and requirements to obtain and maintain the operating license.

8.6. Certification 8.6.1. All international airports as well as those meeting the specifications as

prescribed by CAAN shall be in possession of an airport certificate in order to operate.

8.6.2. CAAN Regulations shall determine the requisites and procedures for airport certification in accordance with such ICAO´s standards and recommended practices as deemed applicable.

8.7. Nepal airports system

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8.7.1. All airports in Nepal, regardless of their ownership or operation, conform an integrated system operating under the plans and policies adopted by the Government of Nepal.

8.7.2. All airports in Nepal regardless of ownership and operation shall contribute financially to the NAS and the operation of the CAAN

8.8. Nepal Airports System ownership and operation 8.8.1. Nepal Government shall establish a publicly owned corporation under

company law in charge of owning and/or operating public airports [[aerodromes]] and participating in ownership and/or operation of mixed ownership airports. Such public corporation may engage also in the provision of air navigation services in accordance with 9.1.2 below.

8.8.2. The purpose of the airports corporation shall be to plan, build, develop, improve, own and/or operate the airports in the Nepal Airports System.

8.8.3. The airports corporation shall be allowed to establish subsidiaries for purposes of construction, development, improvement or operation of any particular airport or group of airports.

8.8.4. Government of Nepal may sell or otherwise trade shares in the airports corporation not exceeding a 49% interest.

8.8.5. The airports corporation subsidiaries may be open to private, local and provincial participation. The airports corporation can participate in such subsidiaries as a minority shareholder.

8.9. Private participation 8.9.1. Government of Nepal may determine the conditions for private

participation in any airport or group of airports in Nepal. 8.9.2. Private sector initiatives may participate in the planning, construction,

development, improvement and operation of airports and services provided therein.

8.9.3. Such private participation may take any form admissible under the law, including, but not limited, to service contracts, leases, concessions and, in general all modes of private financing in build and operation of infrastructures.

8.9.4. Private participation may also take place through ownership of minority shares in the airports corporation. Private participation may hold the majority of shares in subsidiaries of the airports corporation.

8.9.5. Private participation may take place through ownership of majority shares in the airport corporation's subsidiaries established for the construction, improvement or operation of specific airports or groups of airports.

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8.10. Joint use of military/civilian facilities 8.10.1. Government of Nepal shall determine the conditions under which any

aerodrome owned by Government or in which it holds a majority share may be used both for military and civilian purposes.

8.10.2. Government of Nepal may determine the conditions under which any aerodrome in Nepal may be requisitioned in case of war or emergency.

8.11. Aerodrome tariffs 8.11.1. Government of Nepal may determine airport tariffs for publicly operated

aerodromes and establish the economic regulation system to be applied to aerodromes operated by private companies or companies in which Government of Nepal owns a minority share.

8.11.2. No discrimination may be applied to aerodrome tariffs and charges on account of the nationality of the aircraft or the airline operator.

8.12. Airport vicinity protection 8.12.1. Government of Nepal shall designate an "Airport Vicinity Protection

Area" (AVPA) located in the vicinity of an airport, navigation aid or communications equipment in which measures must be adopted to ensure the safety and regularity of air navigation operations and the sustainable development of the airport and its surroundings

8.12.2. The aerodrome operator shall prepare an Airport Vicinity Protection Area Plan specifying the aerodrome protected areas and submit this to CAAN for approval. Regardless of whatever arrangements and procedures may be in place for liaison and notification of developments, planning, public events, etc, the aerodrome operator shall retain the ultimate responsibility for ensuring that the aerodrome protection is correctly implemented. Any non compliance shall be immediately reported to the CAAN, whilst the aerodrome operator takes immediate action to safeguard the operation of aircraft at the aerodrome.

8.12.3. Within the "Airport Vicinity Protection Area", CAAN shall have the

power to: a) prevent the establishment or to impose the demolition, whether total

or partial, of any buildings, constructions, facilities, plantations, objects or barriers of any kind and to determine their heights, construction material and finishes;

b) prevent the installation or fixation of cables of any kind or the establishment of any type of facilities or land uses that may represent or generate a hazard or risk to air navigation;

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c) prevent the installation or operation of any constructions, facilities or devices that may interfere with the proper operation of radar, communications equipment or navigational aids in general;

d) mandate the placement of lights or guide signs for obstacles that represent a threat to air navigation safety;

e) determine land uses which should not be considered compatible with the protection of persons or property and the sustainable development of the airport and its environs;

f) secure access to the facilities and installations related to air navigation and to carry out any works or engineering constructions;

g) erect and maintain any installation, structure or equipment necessary for the purposes of air navigation.

8.12.4. The implementation regulations shall determine the scope and extent of protected areas in accordance with the provisions of national and international standards.

8.12.5. The holders of title to land, property or real rights included in the area covered by protected areas will be entitled, in accordance with the law, to just compensation for any actual and effective loss in which they may incur as a result of the restrictions imposed on existing constructions or land uses.

8.12.6. CAAN may impose conditions and special requirements for the construction of any structure exceeding the height to be determined in the implementation regulations or for the erection of wind turbines or the construction or operation of facilities emitting smoke, gases or light that could constitute a risk to air navigation throughout the territory of Nepal.

8.12.7. The establishment, construction or modification of structures or facilities of any kind that may constitute an obstacle or in any other way entail an increase in the level of risk to air navigation or diminish the level of protection of persons and property in protected areas, such as buildings, trees, wires, poles, wind turbines, dams, waste related facilities, etc., as well as changes in the nature or use of the land of areas, shall always take place in accordance with a town plan which has been adopted with the favorable opinion of the CAAN. When such town plan does not exist, has not been favorably reviewed by the CAAN, or does not contemplate the construction, facility or land use to be established or modified, it will be necessary to obtain the prior authorization of the CAAN.

8.12.8. The competent town planning authorities shall establish their town plans in accordance with the Airport Vicinity Protection Area Plan and obtain the CAAN favorable opinion before the approval of such town plans.

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8.12.9. No building, construction or land use permit may be granted contrary to the provisions of the Airport Vicinity Protection Area Plan.

[[ALTERNATIVE APPROACH Government of Nepal may make regulations for the purposes of: (a) preventing lands adjacent to or in the vicinity of an aerodrome or air navigation facility from being used or developed in a manner that is incompatible with the operation of the aerodrome or air navigation facility; (b) preventing lands adjacent to or in the vicinity of an aerodrome from being used or developed in a manner that is incompatible with the safe operation of the aerodrome or of aircrafts; and (c) preventing lands adjacent to or in the vicinity of ANS facilities from being used or developed in a manner that would cause interference with signals or communications to and from aircraft or to and from those facilities.]] 8.13. Environnemental protection: noise and air pollution 8.13.1. Government of Nepal shall establish noise quality objectives to be

applied in the vicinity of airports and determine the methodology for the evaluation of noise originating from aviation activities.

8.13.2. CAAN shall determine the allowable noise level of aircraft, altitudes, speeds, and engines capabilities at aerodromes in conformity with Annex 16 to the Chicago Convention and may define noise abatement procedures or regulate in any other way the operation of aerodromes for the purpose of mitigating exposure to noise originating from aviation activities.

8.13.3. The Authority shall set up necessary instructions, requirements and specifications to ensure that the allowable noise level do not exceed the limit under this Act and implementation regulations.

8.13.4. The Airport Vicinity Protection Area Plan shall include the estimated noise contours for the forecasted level of operation and may indicate the measures to be adopted in order to ensure the best compatibility between air navigation activities and current or planned land uses. The provisions of town plans within the protected area shall take into consideration the levels of noise estimated in the AVPA and regulate land uses and building specifications accordingly.

8.13.5. Government of Nepal shall adopt air quality objectives to be attained in the vicinity of airports and adopt the regulations, plans and policies required to reach and maintain such objectives.

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9. AIR NAVIGATION SERVICES

9.1. Nepal Air Navigation System 9.1.1. Government of Nepal shall define the Air Navigation System (NANS)

servicing the needs of air transportation with the airspace of Nepal. 9.1.2. Government of Nepal shall establish a publicly owned corporation

under company law in charge of operating Nepal Air Navigation System or entrust such operation to the publicly owned corporation in charge of the Nepal Airports System.

9.1.3. Government of Nepal may entrust the operation of the Nepal Air Navigation System to the same publicly owned company operating the Nepal Airport System.

9.1.4. Specific elements of the Nepal Air Navigation System not affecting national security may be operated by private companies under service contracts, leases, concessions or any other contractual arrangement.

9.2. Scope of NANS 9.2.1. Government of Nepal shall determine the portions of airspace and the

aerodromes where air navigation services shall be provided under the responsibility of Nepal.

9.2.2. Services rendered by the Air Navigation System of Nepal may extend beyond the airspace of Nepal by agreement with neighboring States.

9.3. Charges 9.3.1. The provision of air navigation services shall be financed by charges

levied on the users of the Nepal Air Navigation System. 9.3.2. Air navigation services charges shall be levied without discrimination

on account of nationality. 9.4. Types of air navigation services 9.4.1. The Air Navigation System of Nepal shall comprise the following types

of air navigation services: a) air traffic services; b) communication, navigation and surveillance services; c) meteorological services for air navigation and; d) aeronautical information services (AIS)

9.5. Air traffic services 9.5.1. Air traffic services comprise:

a) air traffic control service; b) flight information service; and c) alerting service

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9.5.2. Air traffic services shall be provided under direct control of the Nepal Air Navigation System in accordance with the standards and recommended practices included in Annex 11 of the Chicago Convention as prescribed by CAAN.

9.6. Aeronautical telecommunication services 9.6.1. Aeronautical telecommunication services shall be provided under direct

control of the Nepal Air Navigation System in accordance with the standards and recommended practices included in Annex 10 of the Chicago Convention as prescribed by CAAN.

9.7. Aeronautical information services 9.7.1. Aeronautical information services shall be provided under direct control

of the Nepal Air Navigation System or delegated to a non-government entity, in accordance with the standards and recommended practices included in Annex 15 of the Chicago Convention as prescribed by CAAN.

9.7.2. Government of Nepal shall remain, in any case, responsible for the information published.

9.7.3. Government of Nepal may require other public administrations and private entities within Nepal to provide data or information needed for the adequate functioning of the Aeronautical Information Services.

9.8. Aeronautical meteorological services 9.8.1. Government of Nepal shall determine the meteorological services to be

provided within the territory of Nepal and airspace portions under its responsibility.

9.8.2. Government of Nepal shall designate the meteorological authority charged with providing or arranging for the provision of meteorological services for air navigation.

9.8.3. Meteorological services for air navigation shall be provided in accordance with the standards and recommended practices included in Annex 3 of the Chicago Convention as prescribed by CAAN.

9.9. Search and rescue services 9.9.1. Government of Nepal shall arrange for the continuous provision of

search and rescue services within their territory and neighboring areas where such services are to be provided under agreement with other States.

9.9.2. Government of Nepal shall cooperate and cooperate with neighboring States for the efficient and effective provision of search and rescue

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services and will determine the conditions under which rescue units from other States may enter the territory of Nepal in case of accident.

9.9.3. Search and rescue services shall be provided in accordance with the standards and recommended practices included in Annex 12 of the Chicago Convention as prescribed by CAAN.

9.10. Air navigation services personnel 9.10.1. No one shall participate in the provision of air navigation services

unless he or she meets all the requirements with may have been set for the performance of such services.

9.10.2. CAAN shall determine the requirements applying to any person wishing to participate in the provision of air traffic control services.

9.10.3. Air Traffic Controller Licenses shall be issued by CAAN in accordance with the requirements and procedure determined by the authority.

9.11. Air navigation facilities and protected areas 9.11.1. The provisions in this Act regarding Airport Vicinity Protection Areas

shall apply to the surroundings of air navigations facilities. 9.11.2. No one shall be allowed to build any construction or facility o operate

any device which may cause interference with or prevent the adequate operation of air navigation facilities and equipment.

9.11.3. Any person operating equipment which causes interference with or prevents the adequate functioning of air navigation facilities may be required to cease in such operation.

9.11.4. Government of Nepal may adopt regulations in order to protect the operation of air navigation facilities and restrict the use of equipment or the erection of constructions and facilities, including wind turbines, which may interfere with the proper functioning of such air navigation facilities.

10. POWERS OF GOVERNMENT OF NEPAL3

10.1. Power to frame rules 10.1.1. In order to implement the objectives of this Act or the standards and

recommended practices prescribed under the Chicago Convention and its Annexes, Government of Nepal may frame Rules as required.

10.1.2. Without prejudice to the generality of the powers conferred by Sub-section (XX), such Rules particularly may provide for any of the following matters:

3 This part of the text is taken from the current Act. New text is underlined.

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a) Regarding complete prohibition of the use of aircraft in any part of aerial territory of Nepal or allowing flights only in particular conditions or times.

b) Regarding adoption of any necessary means for the protection of the person and life of the general people in course of air flights.

c) Regarding conditions pertaining to establishment and operation of radio services, meteorological services and other air navigation facilities to facilitate international air navigation.

d) Regarding to establishment and operation of standard systems of communications procedure, codes, markings, signals, lighting and other operational practices and rules.

e) Regarding preparation and publication of aeronautical maps and charts and the obligations of public administrations and airport operators to facilitate information for the preparation and update of such maps and charts..

f) Regarding fixing the modalities for determining the amounts for compensation for any loss or damage which may be caused if any body's house, building, shed, tower etc. are demolished wholly or in part in course of construction or operation of aerodrome or while regulating, restricting or prohibiting any construction work carried out at an aerodrome or aerodrome area.

g) Regarding prohibition, restriction, prevention and regulation of carrying any substance by aircraft.

h) Regarding grant of license to corporations operating air services, flying schools and the institutes engaged in the manufacture, repair and overhauling including test of aircraft and their parts.

i) Regarding mandatory issuance or validation of licenses and certificates of competency for the pilot and other members of the operating crew of every aircraft registered in Nepal. For the purpose of flight above Nepal, Government reserves the right to refuse to recognize certificates of competency and licenses granted to Nepali citizens by another State.

j) Regarding he documents to be carried in aircraft, k) Regarding search for aircraft and carrying out rescue operations. l) Regarding controlling the noise of aircraft and preventing

environmental pollution cause by the operation of aircraft. To that end Government may establish noise contours in the vicinity of airports and designate areas where noise sensitive uses may be limited. Government may also regulate the use of airports and airspace for the purpose of limiting the impact of aviation on certain areas.

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m) Regarding the designation of Airport Vicinity Areas around the airports and air navigation and communications facilities, and the determination of construction and land use limitations for the protection of aircraft operations. To that end Government may adopt Airport Vicinity Protection Plans indicating maximum heights for buildings, cranes and installations of any kind as well as those activities susceptible of generating smoke or attracting wildlife which would require special permission. Special requirements may also be established for constructions outside the airport vicinity area in excess of a predetermined height.

10.1.3. Rules established under sections (l) and (m) above shall be mandatory for the adoption of land use planning documents and issuance of construction permits.

10.2. Power to issue orders 10.3. Government of Nepal may, by an order or regulation published in the

Nepal Gazette, or by a specific decision implementing such an order or regulation, do as following if it deems necessary for public safety, peace and order:

a) Cancel or suspend all or any license or certificate granted in accordance with this Act or prevailing law, in accordance with the terms if, such terms are prescribed by the Government of Nepal it so required and without prescribing any terms if terms are not being prescribed.

b) Prohibit the flight of all or any types of aircraft over Nepal or any part thereof in accordance with the terms if, having deemed it necessary, Government of Nepal has prescribed any terms in the order and otherwise without any terms, or regulate that in accordance with other modalities prescribed in the same order.

c) Prohibit or regulate, whether by prescribing any terms or not, the act of making, or carrying out proper maintenance thereof, or using aerodrome, aircraft factory, flying school or club or other types of places where aircraft are manufactured or repaired or kept.

d) Require that any aircraft or any class of aircraft or any aerodrome, aircraft factory, flying school or club or other types of places where aircraft are manufactured, or repaired or kept should hand over machinery, plant, including other materials to be used for the operation, manufacture, repairing or maintenance of aircraft to the prescribed authority immediately or within such period of time or in such modalities as may be prescribed in the same order, Government of Nepal may use the things so handed over in the public service.

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e) Prohibit the deliberate use of any civil aircraft registered in Nepal or operated by an operator who has his place of business or permanent residence in Nepal for purposes inconsistent with the aims of the Chicago Convention.

f) Require the landing at some designated airport or give any other instructions to a civil aircraft flying above its territory without authority or if there are reasonable grounds to conclude that it is being used for any purpose inconsistent with the aims of the Chicago Convention.

10.3.1. If any order made under Clause (c) or (d) of Sub-section (XX) results directly in any loss or damage to any person, such person shall be compensated therefor with such amount as may be fixed by the authority appointed by Government of Nepal for that purpose.

10.3.2. Government of Nepal may, for the compliance with any order made under Sub-section (XX), take or cause to be taken such steps as it may deem necessary.

10.3.3. Where any person, who does not comply with the order made under Sub-section (XX) or acts in contravention of such orders, shall be punished with imprisonment of unto Three years or a fine of up to Five Thousand Rupees or both.

10.3.4. For the compliance with any order or decision made under Sub-section (X)(f) Government of Nepal shall refrain from resorting to the use of weapons against civil aircraft in flight and, in case of interception will act in such way that the lives of persons on board and the safety of aircraft will not be endangered. Interception of civil aircraft, if necessary, shall take place in accordance with Appendix 2 of Annex 2 to the Chicago Convention.

10.4. Power to enter into agreements Government of Nepal may enter into agreements with other States or groups of States in regard to: (a) Air transportation services by airline operators operating to and from airports in Nepal from said States. (b) The transferring of functions and duties concerning aircraft registered in a State other than the State where the aircraft operator has his place of business or place of residence, according to article 83.bis of the Chicago Convention. (c) The provision of air navigation services. 10.5. Power to detain aircraft 10.5.1. The authority empowered therefore by Government of Nepal may

detain any aircraft on the following conditions:

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a) Having regard to the nature of an intended flight, the flight of such aircraft is likely to endanger to the safety of persons therein or any other persons or any body's property, or

b) In so far as it deems to be expedient to ensure compliance with any of the provisions of this Act or the Rules applicable to such aircraft, or to prevent violations of any Rule made under Clause (b) of Subsection (XX) of Section (X).

10.5.2. Government of Nepal may frame Rules to regulate all the activities which are ancillary or incidental to the exercise of the powers under Sub-section (X). These Rules, shall come into force after having been published in the Nepal Gazette.

10.6. Power to frame rules for the protection of public health 10.6.1. Government of Nepal may frame rules for the prevention of danger

arising to the public health by the introduction or spread of any infectious or contagious disease from aircraft arriving at or being at any aerodrome, and for the prevention of the conveyance of such infectious or contagious disease by means of any aircraft departing from an aerodrome.

10.6.2. These rules shall come into force after having been published in the Nepal Gazette.

10.7. Emergency powers for the protection of public health 10.7.1. Government of Nepal, if it is of the opinion that any dangerous

epidemic disease has out broken or is likely to outbreak in the Nepal or any part thereof and that the provisions of Nepal Law for the time being in force are not sufficient for the prevention of danger arising to the public health through the introduction or spread of the disease by the agency of aircraft, may take or cause to be taken such measures as it deems necessary for the prevention of such danger.

10.7.2. Government of Nepal may, by notification published in the Nepal Gazette issue necessary orders to carry out the objectives of Subsection (XX).

10.8. Powers may be Delegated: 10.8.1. Government of Nepal may, by publishing a Notification in the Nepal

Gazette, delegate its powers conferred to it under this Act and the Rules framed thereunder to be exercised by anybody or any official.

10.8.2. Government of Nepal, and Civil Aviation Authority Nepal may delegate to appointed officers or inspectors the authority to oversee and verify the implementation of any civil aviation laws and regulations as may have been adopted or are considered applicable in Nepal. In the

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performance of their duties such officers and inspectors shall enjoy the right to unrestricted and unlimited access to aircraft, aviation facilities and documents for the purpose of inspections and will have the authority to prohibit any person from exercising the privileges of any license, certificate or document for just cause.

10.9. Granting Waivers: 10.9.1. Notwithstanding anything contained in the prevalent law, Government

of Nepal may, taking into consideration a persons' technical knowledge and efficiency, grant waivers in respect of some of the qualifications concerning license for air service operation, efficiency rating or qualifications required for other certificates to any person who may have acquired membership of any army aviation squad or gained experience and technical knowledge about civil aviation recognized by the Government of Nepal or who may have got through any special examination prescribed by Government of Nepal.

11. CIVIL AVIATION AUTHORITY OF NEPAL4

11.1. Establishment of the Authority Civil Aviation Authority of Nepal has been established in order to make the operation of national and international flights, air communication, air navigation and air transportation services safe, regular, standard and efficient. 11.2. Denomination and legal personality 11.2.1. The Authority shall be called "Civil Aviation Authority of Nepal" and

abbreviated as "C.A.A.N." 11.2.2. The Authority Shall be an autonomous and corporate body with

perpetual succession. 11.2.3. The Authority shall have a seal of its own. 11.2.4. The Authority may, as a person, acquire, use, sell or purchase or

manage movable and immovable property. 11.2.5. The Authority may, as a person, sue in its name and be sued upon in

the same name. 11.3. Offices 11.3.1. The Head Office of the Authority shall be located in Kathmandu. 11.3.2. The Authority may open offices in other locations in Nepal.

4 Taken from the current CAAN Act. New text is underlined.

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11.4. Independent authority 11.4.1. The authority shall perform its regulatory and safety oversight roles

with total independence from central, regional or local governments as well as from any operators or providers of any kind of infrastructures, facilities or services in the field of civil aviation.

11.5. Regulatory and oversight functions Regulatory and oversight Functions, Duties and Powers of the Authority : In addition to the function, duties and powers mentioned elsewhere in this Act, the regulatory and oversight functions, duties and powers of the Authority shall be as follows: (a) To prescribe conditions and to grant, as prescribed, permission and issue certificates or to suspend or cancel the same of the institution operating air service operated under the prevailing law. (b) To prescribe conditions and to grant, as prescribed, permission and certificates or to suspend or to cancel the same of flying school in accordance with the prevailing law. (c) To prescribe conditions and to grant permission, as prescribed, to institutes entitled to undertake overhauling including manufacture, repairs and inspection of aircraft and spare parts of aircraft in accordance with the prevalent law and to grant, as prescribed, license, efficiency rating and certificates to technicians engaged in such institutes, to renew, to cancel, to suspend or to return and to prescribe requisite qualifications and to conduct examinations for granting such license, efficiency rating and certificates. (d) To prescribe conditions and to grant, as prescribed, license, efficiency rating and certifications, as prescribed, to subjects relating to the operation of air service and to renew, to cancel or to return, the same and to prescribe necessary qualifications and to conduct examinations for granting such license, efficiency rating and certificates. (e) To recognize the license, efficiency rating and certificates pertaining to subjects relating to the operation of air service awarded by a member nation of International Civil Aviation Organization or association or institute duly authorized by such nations, and to the institutes authorized to overhauling including repairs and test of aircraft for overhauling including repairs and test of Nepali aircraft. (f) To prescribe conditions and to grant or validate, as prescribed, licenses and certificates of competency for the pilot and other members of the operating crew of every aircraft registered in Nepal, and to renew, to cancel or to return, the same. (g) To prescribe conditions and to grant license and certifications, as prescribed to subjects relating to the operation of air navigation services and to renew, to cancel or to return, the same and to prescribe necessary

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qualifications and to conduct examinations for granting such license and certificates. (h To register aircraft, as prescribed, and to engrave markings. (i) To prescribe conditions and to grant, as prescribed, certificate of air worthiness to the aircraft, to renew and cancel it. (j) To prescribe conditions for the flight of aircraft, carrying passengers, mail and baggage and for the use of aircraft for other works relating to industrial business. (k) To prescribe conditions and to inspect aircraft, hangar, flight of aircraft and the arrangements relating to operation of air service and the place for overhauling including repairs and examination of aircraft. (l) To specify, save the area and place prohibited by Government of Nepal in accordance with the prevalent law, the conditions for the entry of aircraft into Nepal, for the flight over Nepal, air routes and the place for the landing of aircraft. (m) To prescribe conditions and to grant license and certifications, as prescribed to subjects relating to the operation of fire prevention and life-saving services at aerodrome and within the aerodrome area and to renew, to cancel or to return, the same and to prescribe necessary qualifications and to conduct examinations for granting such license and certificates. (n) To prescribe conditions for search and rescue operations. (o) To prescribe the requirements of aeronautical information services and aeronautical charts and to issue certificates to subjects relating to the provision of such information services and charts. (p) To prescribe and certify or verify conditions relating to the provision of meteorological information for aeronautical purposes. (q) To prescribe the units of measurement to be used in connection with air communication, and to prescribe the signal used for the sake of communication by aircraft or in aircraft and the instrument to be used for giving such a signal. (r) To control the sound of aircraft and to restrict pollution in air and the environment to be caused by the operation of aircraft. (s) To prevent and control and to prescribe the limits for carrying dangerous goods and commodities by aircraft. (t) To grant permission for air flights and to prescribe the functions, duties and the flight and leisure time for pilots and crews. (u) To offer advice to Government of Nepal with regard to fixing passenger fare and freight for carrying goods to be charged in the operation of air transportation service. (v) To prescribe conditions and to grant license and certifications, as prescribed, to subjects relating to the operation of aerodromes and to renew, to cancel or to return, the same. Civil Aviation Authority will advise Government of

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Nepal on the establishment of new airports and will approve master plans and construction projects for aerodromes. (x) To prescribe the manner in which the standards and recommendations (appendixes and documents) adopted by the International Civil Aviation Convention and ratified by Government of Nepal, and framed under that convention and decided by the International Civil Aviation Organization (I.C.A.O.) are to be implemented in Nepal and to enforce and cause to be enforced, as per necessity such standards and recommendations. (y) To discharge and cause to be discharged such other functions as prescribed by Government of Nepal. 11.6. Service Provision Functions, Duties and Powers of the Authority: 11.6.1. In addition to the regulatory and oversight functions, the CAAN may

engage in the provision of the following services: a) To provide or delegate the provision and to coordinate search and

rescue operations b) To own and use aircraft in order to conduct technical test of air

transportation service and subjects related therewith. c) To get insured, as per necessity, the properties owned by the

Authority including buildings, aircraft, machines, equipments etc. 11.7. Separation of functions Whenever CAAN engages in service provision functions, even on a transitional capacity, or whatever similar functions the Government of Nepal sees fit to entrust to the Authority, such provision will be undertaken by functionally and financially independent units in such a way that there is complete independence, legal and financial, from units engaged in regulatory or oversight functions. 11.8. Powers of CAAN officers and inspectors 11.8.1. In the discharge of their functions the Civil Aviation Authority Nepal, its

officers and inspectors shall have the power to access without restriction or limitation any aircraft, aviation facilities and documents for the purpose of inspections. Said officers and inspectors shall have also the authority to prohibit any person from exercising the privileges of any license, certificate or document for just cause.

11.8.2. In case it is necessary to enter into any body's house and land in the surrounding area of aerodrome or under air route in connection with any work of the Authority, an officer specified by the Authority may enter into there after giving prior notice to the person using such house and land.

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11.8.3. Provided that, in order to avert any accident or to make necessary repairing of any instruments installed at such a house or land, or if there be any other justifiable reason, any employee of the Authority may enter into such house and land at any time even without giving a prior notice.

11.8.4. An official, designated inspector or employee of the Authority, who enters any body's house or land in order to discharge any function under sub-section (xx), shall have to submit a report to the Authority at the earliest on the works he/she has performed in such house of land.

11.9. Land acquisition 11.9.1. Government of Nepal may acquire, even through expropriation, any

land or real state or rights related thereof required for the exercise of the Authority's functions and duties and make it available to the Authority by enabling it to pay the compensation for the same.

11.9.2. While acquiring land under Sub-section (XX) the relevant procedure of the prevalent law shall have to be adhered to.

11.10. Power to frame rules and guidelines 11.10.1. In order to implement the objectives of this Act the Authority may frame

required Rules 11.10.2. [[Rules framed by the Authority shall come into force only after being

approved by Government of Nepal, unless they have been adopted for the implementation of previously adopted rules or under special delegation from Government of Nepal or according to specific provisions in this Act]].

11.10.3. Subject to this Act and the Rules there under, Authority may frame and enforce technical or procedural guidelines in order to implement the rules standards and recommended practices set up by the international organizations or arising from international treaties ratified by Nepal, and it shall be the duty of all concerned to comply with such a guidelines.

11.11. Financial resources 11.11.1. The Authority may, by exercising the following powers, manage

financial sources required for discharging its functions: a) take loans and grants from national associations, institutions, banks

or persons; b) take loans and grants from foreign Governments and foreign or

international associations and institutions subject to securing permission of Government of Nepal;

c) invest the amounts lying in the fund of the Authority;

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d) collect charges or taxes as prescribed from airport operators, air navigation service providers, passengers or other users of the civil aviation system for the purpose of supporting the exercise of regulatory and oversight functions;

e) collect charges as prescribed for granting permission, licenses, rating of efficiency and certificates relating to activities, and equipment of any kind, including aircraft, in relation with air navigation, as well as for their renewal or confirmation, and for conducting test for such purposes;

f) collect charges and fees for providing other services as prescribed. 11.11.2. As for a person who fails to pay charges and fees as per sub-section

(XX) within the prescribed time limit, additional charge and fee as prescribed may be collected. The Authority may recover as Governmental dues the charges, fees and compensation to be recovered from any person or institution as per this Act or the rules there under as good as the Government dues .

11.12. Fund of the Authority 11.12.1. There shall be a separate fund of the Authority. The capital of the

Authority and the amounts received in the form of loans and grants and under Section XX shall be credited to that Fund.

11.12.2. All the expenses of the Authority shall be charged on the Fund mentioned in Sub-section (xx).

11.12.3. The Fund of the Authority shall be operated as prescribed. So long as the Rules governing the operation of the Fund are not framed the fund shall be operated as decided by the Board.

11.13. Accounts and audit 11.13.1. The accounts of the Authority shall be maintained as per the format

approved and the procedure prescribed by the Board. 11.13.2. The accounts of the Authority shall separate clearly all revenues and

expenses and investments pertaining to the exercise of regulatory and oversight functions from those pertaining to service provision.

11.13.3. The accounts of the Authority shall be audited by the Auditor General or an auditor appointed by him/her.

11.14. Board of Directors 11.14.1. A board of directors comprising of a chairperson and the members as

mentioned below shall be constituted for the operation, supervision and management of all the functions of the Authority.

a) Minister or Minister of State of Tourism and Civil Aviation or a person specified by the Government of Nepal - Chairperson

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b) A representative, Ministry of Tourism and Civil Aviation-Member c) A representative, Ministry of Finance - Member d) One person nominated by Government of Nepal from among

persons belonging to the private sector or association or institution and having special knowledge and experience of the tourism industry- Member

e) One person nominated by Government of Nepal from among the persons having special qualifications relating to Civil Aviation - Member

f) Two persons nominated by Government of Nepal from among the directors of the institutions operating air service including the private sector engaged in the operation of airlines service - Member

g) Director General - Member-cum Secretary 11.14.2. Government of Nepal may add or reduce or change the chairperson

and the members of the Board of Directors by publishing a notification in the Nepal Gazette.

11.14.3. The Board may, if it deems necessary, nominate any expert or consultant as observer-cum-member of the Board for a specified period.

11.14.4. The tenure of the Chairperson and the members nominated under clauses (a), (d), (e) and (f) of Sub-section (x) Shall be of four years. provided that, Government of Nepal may, if it so desires, renominate the chairperson or the member who tenure has expired.

11.14.5. Disqualification of Members : 11.14.6. The chairperson and any member of the Board of directors constituted

under Section (XX). may not be disqualified to continue in their posts except in any of the following circumstances:

a) Expiry of the tenure, b) Tendered resignation accepted by the Government of Nepal , c) Death, and d) Indictment under criminal charges.

11.14.7. Meeting of the Board : 11.14.8. The meeting of the Board shall be held as prescribed. 11.14.9. (The majority opinion in the Board meeting shall be valid, and in case

the votes are equal the chairperson shall record a casting vote. 11.14.10. The Board may itself decide other procedures regarding the board

meeting. 11.14.11. Functions, Duties, Powers and Perks of the chairperson : 11.14.12. The Functions, duties and power of the chairperson shall be as follows:

a) To call a meeting and to decide the order of priorities of the matters to be discussed

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b) To conduct and cause to conduct the business of the Board of Directors in an organized, efficient and regular manner.

11.14.13. The perks to be received by the chairperson shall be as determined by the Government of Nepal.

11.14.14. Transactions Not to be Invalid : Even though there is any drawback in the constitution of the Board or the post of any member is vacant, no transaction made by the Board shall be invalid only for that reason.

11.15. Director General, Advisor and other Employees: 11.15.1. Government of Nepal shall appoint normally any employee working in

the service of Government of Nepal or that of the Authority as the Director General in order to carry out the functions of the Authority as the Executive Chief.

11.15.2. The tenure of the Director General shall be of four years, and he/she may be eligible for reappointment if Government of Nepal so desires.

11.15.3. Government of Nepal may remove the Director General from his post before the expiration of his term only under the same circumstances as the members of the Board as stated in Section (XX)

11.15.4. The Authority may appoint other Advisor and employees as per necessity.

11.15.5. The terms and conditions of services and facilities of the Director General, Advisor and other employees of the Authority shall be as prescribed.

11.16. Functions, Duties and Powers of the Director General: 11.16.1. The functions, duties and powers of the Director General shall be as

follows: a) To carry out general administration and conduct is management of

the Authority. b) To provide and cause to provide for the supervision and control of

the fund of the Authority and management and maintenance of the property.

c) To prepare and submit to the Board the annual program and plan of the Authority.

d) To prepare the details of the annual income and expenditure and the supplementary income and expenditure of Authority.

e) To implement the budget, plan and program approved by the Board. f) To provide for the internal and final audit of the Authority. g) To act as a liaison officer between the Authority and the

Government of Nepal and other bodies.

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h) To prepare and submit to the Board for approval a draft of the rules relating to terms and conditions of the service of the employees of the Authority.

i) To prepare and submit to the board for approval a draft of the rules relating to the financial administration of the Authority.

j) Liaison and coordinate and cause to do so among the offices under the authority.

k) To discharge functions in accordance with the powers delegated and the instructions issued by the Authority.

11.17. Restrictions on Chairperson, the Members, Director General, the

Advisors and Employees of the Authority: 11.17.1. The Chairperson, members, Director General, Advisors and employees

of the Authority shall not be eligible to be a party to any transactions or contracts or lease with the Authority.

11.18. Protection of Good faith 11.18.1. The Chairperson, member, the Director General and other employees

of the Authority shall not be held personally liable for any loss or damage caused by any act committed or to be committed with good faith in course of discharging their duties under this Act or the rules framed there under

11.19. Liaison with Government of Nepal 11.19.1. The Ministry of Tourism and Civil Aviation shall liaison the Authority

with Government of Nepal

12. OFFENSES AND PENALTIES5

[[¿¿Include Beijing Convention and Protocol, which have not been ratified yet by Nepal??]] 12.1. Punishment for the violation of this Act or any Rule framed under this Act: 12.1.1. Any person violating any Rule framed under Section 3, Section 5,

Section 6, Section 7 and Section 8 or an order issued shall be punished with imprisonment up to Three Months or with a fine up to Ten Thousand rupees or both.

5 Text from the current Act.

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12.2. Offence and Punishment: 12.2.1. Commission of any of the following acts shall constitute following

offences: a) Offence relating to unauthorized entry: If any aircraft enters into

Nepal without obtaining permission under this Act or the prevalent law, it shall be deemed to have committed an offence relating to unauthorized entry.

b) Offence relating to violation of aerial territory: In case any aircraft flies over the territory of Nepal without obtaining permission under the prevalent law it shall be deemed to have committed an offence relating to violation of aerial territory.

c) Unlawful seizure or hijacking of an aircraft: In case any person on board an aircraft on flight, unlawfully by force or threat thereof or by displaying any other type of threat or intimidation, captures or exercises control over that aircraft, he/she shall be deemed to have committed the offence of unlawful seizure or hijacking of the aircraft.

d) Offence against the safety of air flight: Commission of any of the following acts, shall constitute an offence against the safety of air flight: i) Committing an act of violence against a person on board an

aircraft on flight or the likelihood of any danger to be caused to the safety of an aircraft by such an act.

ii) Destroying an aircraft in service or causing damage to such an aircraft by rendering it incapable of flight or probably endangering its safety during flight.

iii) Destroying or damaging an aircraft on ground or the parts or equipments installed in an aircraft or the air navigation facilities or the aid equipments relating to communication-aviation or fire prevention or life saving services and protection equipments or materials or goods related thereof or unlawfully taking out any part or mechanical parts thereof or interfering with their operation.

iv) Endangering the safety of an aircraft on flight by communicating any information in spite of the knowledge of its being false.

e) Offence against the safety of Aircraft: If any device or substance is placed or caused to be placed on an aircraft in service or on ground which is likely to destroy that aircraft or to render it incapable of flight or to endanger its safety during flight pursuant to Clause (d), Sub-clause (2), it shall be treated as an offence committed against the safety of the aircraft.

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f) Offence against the safety or aerodrome: If an aerodrome and the communication and navigational aid equipments existing inside or outside an aerodrome area, visual aids, equipments pertaining to weather and climate, machines and equipments relating to fire prevention and life-saving services, other equipments and machines relating to safety and other machines or equipments related directly or indirectly to air navigation, buildings, run-way, taxi-way, apron, hangar etc. or goods related thereof are in any way fully or partially spoiled, destructed, damaged or destroyed, it shall be treated as an offence committed against the safety or an aerodrome. Any violation against the provisions established for the protection of the Airport Vicinity Area or building heights established outside such area for the purpose of protecting aircraft operation, as per Section (X), shall be treated as an offence against the safety of an aerodrome.

g) Offence against the safety of persons concerned with Air Navigation: If any attempts are made to endanger or obstruct air navigation and its safety by coercing any employees involved in air navigations, Government or non-Government employees employed at an aerodrome and any visitor to an aerodrome including air passenger to deviate from their duties by abducting or capturing them through intimidation or threat, with or without arms, or through temptation or adoption of other means, it shall be treated as an offence committed against the safety or persons concerned with air navigation.

12.2.2. Making attempts at the Commission of offences mentioned in Clauses

(c), (d), (e), (f) and (g) of Sub-section (XX) or being accomplices to the commission or an attempt at such offences shall be also treated as offences under this Section.

12.2.3. Those who commit the following offences mentioned in Sub-section (XX), shall be liable to the penalties as mentioned below:

a) Any person who commits an offence under Clauses (a) and (b) shall be punished with imprisonment for a term ranging from One year to Three years.

b) Any person who commits an offence under Clauses (c), (d) and (e) shall be punished with imprisonment for life, and any person who attempts at its commission or is an accomplice of a person committing such offences shall be punished with imprisonment for a term ranging from Fifteen to Twenty years.

c) Any person who commits an offence under Clause (f) shall be punished with imprisonment for a term ranging from One year to Five years, besides making him/her liable to pay the amount claimed for the loss.

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d) Any person who commits an offence under Clause (g) shall be punished with imprisonment for a term of Five to Ten years.

e) Notwithstanding anything contained in the Clauses mentioned above, if as a consequences of any such offence any person on board an aircraft dies or the aircraft itself is destroyed, the offender shall be punished with imprisonment for life, and an accomplice to such an offence shall be punished with imprisonment for life or for a term of Fifteen to Twenty years, and the assets of such an offender and the accomplice shall be confiscated.

12.3. Aircraft in flight or in service: For the purposes of this Act: 12.3.1. An aircraft shall be deemed to be in flight at any time from the moment

with all its external doors are closed following embarkation until the moment when any such door is opened for disembarkation. Provided that, in case of a forced landing, the aircraft shall be deemed to be continued in flight until the competent authorities take over the responsibility for the aircraft and for persons and property on board.

12.3.2. An aircraft shall be deemed to be in service from the beginning of the preflight preparation of the aircraft by ground personnel or by the crew for a specific flight until Twenty Four hours after landing. Such period of service shall, in any event, extend for the entire period during which the aircraft is in flight as defined in Clause (a) above.

12.4. Conditions to which Section XX. Applies: The provisions of Section XX

shall apply to the following conditions: 12.4.1. When the aircraft is engaged in any flight, international or domestic.

Provided that, if the aircraft is registered in the country other than Nepal, the following conditions must be existed:

a) The place of take-off or landing, actual or intended, of the aircraft is situated outside the territory of the state in which the aircraft is registered, or

b) The offense is committed outside the territory of the state in which the aircraft is registered.

12.4.2. When the offense is committed against the air navigation facilities. Provided that, when such facilities are situated in foreign country, such facilities must be used in international air flights.

12.5. Jurisdiction: 12.5.1. The courts of Nepal shall have jurisdiction over the offenses under

Section 9A in any of the following conditions: a) When the offense under this Act is committed in the territory of the

Nepal,

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b) When the offense is committed against or on board an aircraft registered in the Nepal,

c) When the aircraft on board which the offense is committed lands in the territory of the Nepal with the alleged offender still on board,

d) When the offense is committed against or on board an aircraft leased without crew (dry lease) to a lessee who has principal place of business in Nepal or, if the lessee has no such place of business, his/her permanent residence in the Nepal.

e) Except as provided in Sub-section (1) above, the courts of the Nepal shall have jurisdiction over the offense under Section 9A, wherever it committed, if the accused of such offense is in the territory of Nepal and he/she is not extradited pursuant to this Act or any extradition treaty to which Nepal is a party.

12.6. Power to Arrest: 12.6.1. Where the offense under Section XX. has been committed or is about

to be committed, personnel of aerodrome, crew of the aircraft, or personnel of the concerned air transportation service or any person witnessing the commission or about to the commission of the crime or identifying the accused or offender with having reasonable ground thereto, police or personnel of Nepal Army or security personnel or any other persons may arrest the accused or offender, and having arrested the accused or offender, they should hand over them to the police forthwith. Provided that, while arresting such criminal or accused, if circumstances so warrant that it could be detrimental to the lives of the passengers or other persons or it could cause a great damage to the aircraft or air transport facilities, other persons other than police and security personnel should proceed activities to arrest only with the permission of the police or security personnel.

12.6.2. Air service personnel, police, security personnel may, so as to arrest under Sub-section (1), seek help of armed police, security personnel and Nepal Army or other governmental or non-governmental persons; and it shall be the duty of such all to render their help thereupon.

12.6.3. If the accused or offender arrested pursuant to this Section is a citizen of a foreign country, he/she shall be provided with an opportunity for or assisted in communicating with the nearest appropriate representative of his/her country; and following the notification of such arrest and the carrying out of other preliminary inquiries, the concerned countries shall be notified of the findings of such inquiries and also about whether the jurisdiction of this Act is exercised.

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12.7. Accused or offender may be extradited: 12.7.1. In case where a person committing the crime under Section XX is a

Non-Nepalese citizen and the state, in the territory of which the crime is committed or the crime is committed against the aircraft of which registration, requests the extradition of such person, Government of Nepal may, notwithstanding anything contained in the Extradition Act, 2045, extradite such person; and where he/she is not so extradited, a suit against such person shall be initiated in the court of Nepal for punishing him/her.

12.7.2. With respect to extradition, any offense mentioned in Section XX shall not be treated as a political crime notwithstanding committed by any person irrespective of his/her position or the motive therefor.

12.8. To return the Seizure of aircraft and allow to make flight: 12.8.1. If any aircraft, being subject to the unlawful seizure and hijacking under

Clause (C) of Sub-section (1) of Section XX, lands in any aerodrome or place of the Nepal, it shall be handed over to the commander having legal rights over such aircraft or the personnel of the air transportation service to repossess thereon; and such aircraft shall be allowed, without any obstruction and as promptly as possible, to make flight, with its pilot, passengers and cargo, to the place from where it has made its flight or the intended destination of such flight.

12.9. Jurisdiction under other Laws of Nepal: Notwithstanding anything

contained in this Act with respect to punishment for and proceedings in the offenses under Section 9A., it shall not be deemed to exclude or limit the exercise of criminal jurisdiction conferred by the existing laws.

12.10. Recognition of International conventions relating to the Prevention of

unauthorized Interference in Air Service: 12.10.1. If Nepal becomes a party to any of the following conventions,

Government of Nepal may issue order with specifying the effective date of such convention for the Nepal and with indicating other things necessary in course of implementing such convention, and such order shall be published in the Nepal Gazette.

a) Convention on Offenses and Certain Other acts Committed on Board Aircraft Concluded in Tokyo in 1963 A.D.

b) Convention for the Suppression of Unlawful Seizure of Aircraft Concluded in Hague in 1970 A.D.

c) Convention for the Suppression of Unlawful acts Against the Safety of Civil Aviation Concluded in Montreal in 1971 A.D.

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d) [[Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation and Supplementary Protocol for the suppression of unlawful seizure of aircraft. Concluded in Beijing on September 10, 2010.]]

12.10.2. Any convention specified by Government of Nepal by publishing a Notification in the Nepal Gazette. (2) The order issued under Sub-section (1) shall be deemed as the provision of this Act.

12.11. Penalties for those Flying an Aircraft in a dangerous way: 12.11.1. Any person who flies an aircraft in a dangerous way which may cause

loss or damage to the life or person of anybody or to any property located at water, land or in the aerial territory or which may cause obstruction or damage to any aircraft on flight or on ground shall be punished up to Six Months imprisonment and a fine from Fifty Thousand Rupees to One Hundred Thousand Rupees.

12.11.2. If anybody dies or an aircraft gets destroyed as mentioned in Clause (e) of Sub-section (3) of Section XX as a result of flying an aircraft in a dangerous way as mentioned in Sub-section (1), penalties shall be awarded as provided in the same Clause.

12.12. Penalties for access to the restricted areas without permission: 12.12.1. Government of Nepal may, by a Notification published in the Nepal

Gazette, designate the prescribed area of any aerodrome, specified in the same notice, as the restricted area; and following such designation, it shall be the responsibility of the Chief Official of the concerned aerodrome to keep displaying such notice in main places of people's passage, around such restricted area.

12.12.2. Any person without obtaining permission of the chief official of the concerned aerodrome shall not enter into the restricted area designated under Sub-section (X). Provided that, where the chief official of the concerned aerodrome has, having deemed it reasonable, displaced the notice allowing the general public to travel within such area in any time for some period, it shall be deemed, for the purposes of this Sub-section, to have permission obtained to enter into such restricted area in such time.

12.12.3. A person who enters into the restricted area in contravention of Sub-section (2) may be liable to a fine not exceeding Two Hundred Rupees, by an order of the chief official of the concerned aerodrome.

12.13. To make searches of passenger, or any other persons or goods: 12.13.1. The Chief authority of any aerodrome or an official authorized therefor,

or police or security official may, so as to prevent the commission of

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the offenses of under section 9A., may make searches of passengers and their goods, whether before or after they embark on any aircraft ready to make flight, and any scientific device and equipment may also be used in making such searches. Such searches may also be made of the pilots of the aircraft and officials of the air transportation service as well as all workers who embark on or approach to the aircraft for the purposes of managing the flight.

12.13.2. The passengers or persons who refuse to undergo a search under Sub-section (1) may be denied to embark on or approach to the aircraft.

12.13.3. While making searches of the passengers or pilots under Sub-section (X), so long as any gun (all types), artificial gun which is illusive or seems as if it were a real one, other fatal weapons other than gun (sword, Khukuri (Nepalese sword), knife) or explosive substance (including bomb, grenade, bullet, gun-powder) have been seized, the following shall be followed:

a) If such gun or explosive substance is illegal, the passenger or person shall be caught and handed over to the police for legal proceedings.

b) Where it has been tried to secretly keep or carry such gun, artificial gun, other fatal weapons or explosive substances, although they are not illegal, without providing information thereof, the chief official of the aerodrome or personnel authorized therefor, or police or security officials may, as they deem proper, hand over the real or artificial gun, fatal weapon or explosive substance to the commander of the aircraft, or seize such weapons of substances and allow only the passenger or pilot to proceed, or stop the passenger or pilot also and make necessary inquiries thereabout and only in so far as they are convinced that not any mala fide intention to commit an offense is there, such passenger or pilot may be allowed to proceed or carry such gun, weapon, explosive substances.

12.13.4. If information has been received or the circumstances so warrant to suspect thereof that any person, with an intention to the commit the criminal offenses under section XX. or other prevailing Nepalese laws, carrying any type of gun, artificial gun, fatal weapons, or explosive substances, has entered or is about to enter into the aerodrome or any restricted areas thereof, the chief official of the aerodrome or the personnel authorized by him/her therefor or security officials or police or military officials deputed to maintain security of the aerodrome may, without warrant, make searches of such persons and goods with such persons and, if such gun, other weapons or explosive substances have

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been seized, shall hand over them to the police for making necessary inquiries and actions.

12.13.5. If any personnel, in the course of carrying out his/her duty, stops or prohibits, in good faith under this Section, any person from embarking on or approaching to the aircraft or entering into any restricted area of the aerodrome, and thereupon, the flight time of aircraft becomes late or any damage is caused to the aircraft, the personnel shall not have any legal responsibility to any person therefor.

Explanation: For the purpose of this Section the term "pilots" includes flight engineer, radio officer, flight navigator, airhostess, cabin attendant and purser. 12.14. Penalties for abetment or attempt of offenses: 12.14.1. In case, any person abets others to commit any offense violating

prescribed air safety provisions and other matters which is punishable under this Act or Rules framed under this Act, or attempts to commit such offense, and if such attempt does any act towards the commission of the offense, shall be liable to the penalties provided for the offense.

12.15. The Authority to hear cases, and proceedings for such cases: 12.15.1. The local District Court shall have the power to make initial proceeding

(Original Jurisdiction) and decision upon cases under this Act. 12.15.2. In deciding the case, the District Court may give orders to confiscate

and take over by Government of Nepal the aircraft or substance or both related to the offense under the Rules framed in respect of Clause (b) or (e) of Sub-section (2) Section 3 and to the act in contravention with the order under Sub-section (1) of Section 4.

12.15.3. In hearing and deciding the cases related to the offense under Section 9A., the District Court shall follow the procedures as prescribed in Special Court Act, 2059.

12.15.4. An appeal against any decision made by District Court under Sub-section (1) or (2) may be filed before the Court of Appeal within Thirty-Five days of such decision. 12.16. Government to be the Plaintiff: 12.16.1. Government of Nepal shall be plaintiff in the cases under Section 9A.