Court Enjoins New Overtime Rules

In may, we published a post about new overtime rules and how they may affect ASA members.

In essence, the new overtime rule would have a taken some of the people who are currently exempt from overtime protection (like “outside salesmen” and executive, administrative, or professional employees) and would have un-exempted those below certain salary levels.

A federal court in Texas has enjoined enforcement of the overtime rules on an emergency basis.  The Court concluded that overtime exemption statute (29 U.S.C. § 213(a)(1)) does not grant the Department
of Labor the authority to add a salary-level test or an automatic updating mechanism to the standards found in the statute. Those who are exempt remain exempt.

This is a temporary injunction.  It is based on a conclusion that there is a strong likelihood that the states who are suing will prevail on the merits, but it is is not a final judgment on the merits.

ASA members who were planning to implement new overtime rules for their personnel in compliance with this new regulation should refrain until the final decision of the court.

Although the matter was adjudicated in Texas, the Texas federal court has the authority to issue a nationwide injunction and the Court’s order specifically stated that the injunction is issued on a nationwide basis.

ASA in China

Next week, ASA will present at the 2016 China Aviation & MRO/Aftermarket Conference.  We will be discussing the value that AC 00-56B brings to air carriers and MROs, and explaining how Chinese air carriers can use the FAA’s accreditation database to identify foreign aircraft parts distributors with effective quality assurance systems.

We will also participate on a panel discussing how to “Improve the Information Sharing Level of Air-material Supply Chain and Optimize the Inventory Management Mode.”

According to the organizers’ website, they expect the attendance of 26 airlines from China and surrounding nations.  This should be a great opportunity for ASA members to network and build business relationships in China.

If you haven’t yet registered, and you do business (or want to do business) in China, then now is the time to register!

 

Getting Training to Support Your DAR-56 8130-3 Tag Privileges

Still haven’t started applying for the DAR 56 program?  This is the program that allows employees of accredited distributors to issue 8130-3 tags for parts that meet certain FAA-defined airworthiness criteria.  If you are having trouble getting started, then the best way to start is to take the FAA’s online DAR course about how to issue an 8130-3 tag.

We’ve previously published the details about how to apply for the program.  ASA member Jay Rosenberg has provided us with detailed instructions on navigating the FAA’s 8130-3 training class.  Jay is the Director of Operations and Quality for United Aerospace Corp.  He also served as the Chairman of the ASA Quality Assurance Committee and as an ASA Board member.  Here are his guidelines:

I mentioned that I would send you some instructions on clarifying the registering process for the DAR-56 online training site.

  1. You need to setup an account profile: https://av-info.faa.gov/DsgReg/login.aspx
  1. After enrolling you need to sign in and choose the course (“Issuance of 8130-3 for Domestic and Export Approvals of Engines, Propellers & Articles Only”)
  1. Pay for the course ($100.00)
  1. After enrolling and choosing the course you will see a page with your course enrollments which show two courses. One is on the DMS system and the other one is about 8130-3 for domestic and export.
  1. When you click the schedule tab you have to go thru a few pages and choose the right course:
    1. Designee and Delegated Organization training
      1. Designated Airworthiness Representatives
        1. Issuance of 8130-3 for Domestic and Export Approvals of Engines, Propellers & Articles Only

    After doing all this then you get to web link:

    https://av-info.faa.gov/DsgReg/Sections.aspx?CourseInfoID=395

  1. After reading all the material you will be required to take an exam.

You only have only one shot at it to pass…!

If you pass the certificate will be listed on your enrollment screen to download.

We’ve heard from a number of members that one problem is that the DAR-56 program only supports a small number of the parts that need 8130-3 tags, and that most of the parts that now need the tags are not eligible under the program.  That may be true, but it is not a reason to eschew the program.  A partial solution is better than no solution – and ASA is working with the FAA on other partial solutions to try to better resolve the issues facing the industry.

Remember – there is only a limited time to take advantage of this program, so you need to get each of your eligible employees qualified as soon as possible in order to get the maximum benefit from the program.  The first step to that DAR-56 qualification is to get the eligible employees trained!

DAR-56 Advice: Apply Under Your Current AC 00-56 Revision Number (even if you are still under “00-56A”)

We have received word that many ASA members are expeditiously pursuing DAR-56 credentials.  This is the temporary program that delegates limited 8130-3 privileges to individuals working in AC 00-56 environments.  It is great to hear that so many individuals in AC 00-56 companies are pursuing these credentials.

In a recent call with the ASA members, they pointed out that a significant portion of the AC 00-56 community is still accredited under AC 00-56A (not “B”).  The cancellation clause of AC 00-56B explains that a distributor can maintain its accreditation under the “A” revision until it runs out and is renewed under the normal renewal schedules:

“Distributors already in the database of accredited distributors under AC 00-56A may maintain their accreditation under the AC 00-56A standard until their accreditation expires, is superseded upon renewal, or is cancelled or removed by the distributor’s accreditation organization.”

So some accredited distributors could retain the “A” accreditation as late as August 2018 (90 days after the publication of the “B” revision + three years, when their accreditation expires).  The community continues to roll from “A” into “B” between now and 2018.

The cancellation clause of the “B” revision incorporates-by-reference and grandfathers the then-existing “A” revision accreditees.  Therefore, it seems logical that we should read the language of the DAR-56 memo to include the remaining accredited distributors who are still under the “A” revision.  There was nothing added by the “B” revision that would be necessary to the structure of the DAR function code 56 program – the “A” revision provided the structure necessary to manage the DAR FC 56 functions.

The problem, of course, is that the sample letter requires confirmation that “The organization listed in the letter is an Accredited Distributor in accordance with FAA Advisory Circular 00-56B.” This appears, on its face, to possibly exclude those companies that are still accredited under the “A” revision.

We asked the FAA how they want applicants who are still under the “A” revision to handle this?  They responded by explaining that it is acceptable for applicants to state “The organization listed in the letter is an Accredited Distributor in accordance with FAA Advisory Circular 00-56A.”  The response came from Scott Geddie, who leads the branch that is processing DAR-56 applications (so he can speak authoritatively on how the FAA will process DAR-56 applications).  Here is the text of the FAA’s response:

Jason

It was certainly not our intent to restrict those that are currently accredited under the “A” revision given the revision “B” guidance that says:  “Distributors already in the database of accredited distributors under AC 00-56A may maintain their accreditation under the AC 00-56A standard until their accreditation expires, is superseded upon renewal, or is cancelled or removed by the distributor’s accreditation organization.”

I believe the best course of action is for the Limited DAR-F applications and their corresponding letters of endorsement to reference the applicable revision of AC 00-56 that they are currently under.  My office will process emailed applications that include the reference to the “A” revision of the AC.

Thanks,
Scott Geddie
Manager, AIR-160, Delegation and Organizational Procedures Branch
Ph: (405)954-6897

Do you have questions about the DAR-56 program? Let us know your questions – we will work with the FAA to try and get answers that can benefit the entire distribution community.

Obtain 8130-3 Tags For Your Inventory – Limited Time Only!

Have you ever wished that there was an easy way to obtain 8130-3 tags for the obviously airworthy articles in your inventory?  Now, you can become a DAR and issue your own 8130-3 tags!  ASA has worked with the FAA to develop a limited program that will allow employees of accredited distributors to obtain DAR privileges to tag certain items in existing inventory.
The program creates a new function code 56 (because of the association with AC 00-56).  This is a limited function code for employees of accredited distributors that permits issue of 8130-3 tags for parts with certain types of clear evidence of production under FAA production approval.  The program can be found in this attached file.
This program is necessary because of the new emphasis on 8130-3 tags created by the FAA-EASA Maintenance Annex Guidance (MAG).  Many FAA inspectors have required repair stations in the US to adopt receiving requirements that only permit receipt of aircraft parts with 8130-3, EASA Form One or TCCA Form One.  Parts with traditional manufacturer’s certificates of conformity (for example) are excluded from the MAG guidance!  This temporary ability to obtain 8130-3 tags permits some existing inventories of good parts to be tagged in order to meet the new standards created by the Maintenance Annex Guidance

What Can be Tagged?

A DAR with Function Code 56 privileges will be able to issue an 8130-3 tags for parts manufactured by an FAA production approval holder (PAH) if the part and its documentation meets one of the criteria below:
1. Certificate of Conformity/Statement of Conformity from the PAH.  The part number and serial number, if applicable, must match any marking on the part.
2. Certificate of Conformity/Statement of Conformity or shipping document from a PAH supplier and verification of that supplier’s direct ship authorization.
3. Part markings made under 14 C.F.R. § 45.15 that include the PAH’s name or identifier (including PMA markings, TSOA markings and critical part markings).  If the PAH name or other identification is not included in the part marking, then you will need a Certificate of Conformity/Statement of Conformity as described in paragraphs (1) or (2) above.

Qualifications

An applicant for the DAR-56 program must meet all five of the minimum qualifications:
1. AGE: Be at least 23 years of age.
2. EMPLOYMENT: Be employed by an accredited distributor at the location(s) from which the 8130-3 will be issued.  The FAA has not clarified whether this needs to be full-time or part-time nor have they excluded contract employment.  In the absence of clarification, applicants should assume that all categories of employment are acceptable.
3. INDEPENDENCE: Be assigned to a position in the business with sufficient authority to allow the DAR to administer the delegated function effectively without undue pressure or influence from others.
4. EXPERIENCE: Have a minimum of 12 months actual working experience for the accredited distributor under the distributor’s quality system, specifically:
a. Experience in either receiving inspection and/or quality assurance processes; and,
b. Experience reviewing documentation which can be used to verify that the article is traceable to the PAH, such as a FAA Form 8130-3 and Certificate of
Conformity/Statement of Conformity from a PAH.
5. TRAINING: Must have successfully completed FAA course: Issuance of 8130-3 for Domestic and Export Approvals of Engines, Propellers, & Articles Only.

Application Process

Scan and submit the following three documents by email to 9-AIRI60-LimitedDARF@faa.gov:
1. FAA training certificate of completion from the required class [FAA course: Issuance of 8130-3 for Domestic and Export Approvals of Engines, Propellers, & Articles Only]
2. FAA Form 8110-14, Statement of Qualifications (should be signed by the individual employee).
3. A letter of endorsement signed by a management representative from the accredited distributor location where that individual employee is requesting to exercise the authorization.
  • Where the accredited distributor has more than one accredited location, the applicant may apply to exercise privileges at each accreditation location
    under a single management endorsement letter.  The Memo includes a sample letter and explains what must be in the letter.

The applicant is expected to retain the original application materials in his/her records.  FAA Headquarters will review the application.  When an applicant is selected, the FAA will email the applicant a Certificate of Authority.

Limits

There are many categories of airworthy parts without 8130-3 tags that will not be covered by this DAR-56 program.  This is not a solution to all of the problems caused by the implementation of the Maintenance Annex Guidance.  many ASA members will still need to rely on traditional DARs.
The DAR-56 program is limited in time.  All Limited DAR-56 appointments under this program will be terminated on September 30, 2017.  We have discussed with the FAA that there will be a continuing need for the program, because some FAA-PAH manufacturers continue to produce parts without 8130-3 tags.  ASA intends to petition for an extension of the program if it appears that the program remains necessary, but ASA members should not plan on the FAA granting that petition (they have already told us that they will reject such a petition).

Advice

The FAA intends that this DAR-56 program be used to tag existing inventory in order to make it saleable under the new documentation standards of the MAG.  The FAA has stated that they intend to issue privileges to all eligible applicants, in order to facilitate this process (note that this does not give you a legal right to the privileges – the FAA retains the discretion to limit or terminate the program at its discretion).
Many of our members have a substantial existing inventory that is eligible to be tagged under this program.  We have spoken with members who have said that some inventories could take YEARS in order to tag the entire inventory.  We advise accredited members to seek DAR-56 privileges for EACH eligible employee, in order to maximize your potential for issuing 8130-3 tags.  Accredited members should also apply as early as possible.
Once employees have received their certificate of authority, they should start to review existing inventory and issue tags for eligible parts immediately, in order to maximize the documentation of the inventory.
We also advise unaccredited ASA members to seek AC 00-56 accreditation in order to be eligible for the DAR-56 program.  ASA can discuss the process with you and can accommodate members who need AC 00-56 audits in order to participate in the program.

As the MAG 6 Implementation Date Looms, Repair Stations Adopt MAG 6 Documentation Limits

We have received multiple copies of an email from AAR from a number of ASA members. It is obvious that the letter has just gone out today (based on the number of ASA members forwarding it to us).

The AAR letter concerns “expectations around MAG 6.”  It confirms that AAR’s understanding is that they need FAA 8130-3 or EASA Form One with anything that is not a standard part.  The letter permits no deviations.

AAR is a leading company in the aviation repair station industry so their interpretation of the MAG 6 provisions is quite important.

The FAA issued FAA Notice 8900.380 to temporarily reopen the safety valve that was closed by MAG 6.  It specifically authorizes dual-certificated repair stations in the United States to accept parts without 8130-3/Form One and to inspect the parts to ensure airworthy condition (and then use them).

ASA has expressed concern to the FAA that efforts like FAA Notice 8900.380 could be ineffective because (1) repair stations already submitted their changes months ago at the behest of their PMIs and they may be unable to once again change their systems, and (2) many industry participants view the MAG as operating at a “higher level” than the Notice and therefore discounted the Notice’s effect (right or wrong – this is still a popular industry perception).

There are parts that are necessary to safe operation of aircraft, but that will not have 8130-3 tags, despite the fact that they are susceptible to airworthiness determination under normal FAA Part 43 standards.  Remember – it only takes one small part to interfere with an entire maintenance function.  I fear that firm documentation positions like those expressed by AAR could lead to one of two possible resolutions:

  • Air carriers will have to ground aircraft because the airworthy part does not have an 8130-3 tag (or Form One), and therefore can’t be accepted and installed by the repair station; or,
  • Repair stations will circumvent their own written systems in order to bring in parts without 8130-3 tags, despite language in the system requiring such a tag.

Neither of these options is desirable.  I am afraid that the (B) option will be the one that occurs most in the real world.  I fear that this will occur because the parts are thought to be good and the maintenance needs to be performed.  I am afraid of this occurrence because once companies start circumventing their written systems, those written systems start to lose their integrity.  At a time when the industry and FAA are examining greater reliance on Safety Management Systems, anything that undermines the safety culture of following the company’s written system is detrimental to the future of aviation safety.

Distributors who are supporting dual-certified (FAA/EASA) repair stations should remind those customers that FAA Notice 8900.380 explicitly permits receipt of parts without 8130-3/Form One when the repair station inspects them for airworthiness (as has always been the case); and guidance like FAA Advisory Circular 20-62E still is effective in recommending reliance on other indicia of airworthiness, such a manufacturer’s certificate of conformity.  The Notice is temporary but we are still working with FAA to establish a better resolution to the issues facing the industry.  Ask your affected business partners to ensure that their systems are consistent with FAA Notice 8900.380, and ask them to announce their willingness to accept parts for inspection when those parts bear other indicia of airworthiness.

FAA Notice 8900.380 is CHANGED and this Affects How Repair Stations May Receive Parts

Immediately after the FAA issue Notice 8900.380, they reissued it with small, but significant, edits to the original language. This information was sent two weeks ago to ASA members by e-mail but I just realized that I forgot to include it in the blog!

The changed language seems to help the situation faced by distributors, by explicitly recognizing that repair stations may inspect and receive parts without 8130-3 or Form One – but only for a one-year interval, and only when the repair station’s inspection is consistent with its manuals.   A repair station rated to perform maintenance on a top assembly is also rated to inspect any component part to determine its eligibility for installation in the next higher assembly, so this one year inspection permission will be useful.

The new Notice isn’t numbered differently nor does it have change markers.  So it is important to ensure you have the most recent version of the Notice, and it is very easy to have the wrong version.

While this is unusual (re-issuing a notice with changes, but with no way to distinguish the changed version from the original), we will accept the change as it expands the type of parts that a 145 can inspect. These edits are beneficial to the industry.

Remember the below information only deals with 1) confirming that a 145 can inspect a part without an 8130-3, 2) tagging that part as inspected and 3) bringing it into the 145’s system (allowing a dual-certificated 145 to buy an aircraft part without an 8130-3 tag and use it in their work).

This does not change the NOTE section dealing with grandfathered parts.  This area is still being discussed with the FAA and EASA, but the grandfather clause has been confirmed by FAA to extend only to parts in the repair station’s inventory by October 1, 2016.

The edits to Notice 8300.380 are:

(b) Inspections. For the purposes of this notice, inspections may be performed on:

(1)  New parts received in inventory before October 1, 2016, that are not accompanied by FAA Form 8130-3, a dated certificate of conformance, or similar documentation issued by a U.S. PAH or supplier with direct ship authority in accordance with the notes in MAG CHG 6, Section B,Appendix 1, subparagraph 10k)(1)(a) and Section C, Appendix 1, subparagraph 7c)(1)(a); and

(2)  New parts released by a U.S. PAH received on and after October 1, 2016, that are not accompanied by FAA Form 8130-3.

The Notice clarifies a few points and provides no relief on several areas:

  • Effective date for MAG 6 parts documentation section is October 1, 2016.
  • Although MAG CHG 6 does not prohibit repair stations from inspecting an article or subcomponent that they are rated and approved to work on for return to service, the notice imposed certain limits on what parts are permitted to be inspected in this way. Repair station can issue an 8130-3 for any part received without the documentation required by the MAG and issue an 8130-3 with a dual release statement if the part meets one of these two conditions:
    • New parts in inventory prior to October 1, 2016 that do not have an 8130-3, dated C of C; or similar document issued by the PAH or supplier with direct ship authority.
  • So a repair station can purchase/inspect a new part from a distributor even if that part doesn’t have an 8130-3, before or after October 1, 2016. The 145 would inspect the part and issue an 8130-3 as part of the 145’s system.  This doesn’t apply if the part does not qualify for an 8130-3.
  • A repair station can also purchase/inspect a new part from a distributor before October 1, 2016, if that part does not have do not have an 8130-3, dated C of C; or similar document issued by the PAH or supplier with direct ship authority.
  • There are still some limitations to these privileges, so be sure to analyze your transactions carefully!

QUESTIONS AND ANSWERS

Q: What about new parts in a distributors inventory that were manufactured  before October 1, 2016 and that do not have an 8130-3?

A: After October 1, 2016, these parts need an 8130-3 to sell them to an FAA EASA dual certified repair station. ASA sought a re-interpretation of some language that would permit distributors to sell these parts to repair stations after October 1, 2016, and this lead to the new language of Notice 8900.380.  THE NEW NOTICE OFFERS SOME MORE OPTIONS TO DISTRIBUTORS.  One significant option is that for the limited one-year time period of the Notice, dual-certificated repair stations in the US may receive parts that do not conform to the MAG and inspect them for suitability.

 

Q: What if my parts don’t qualify for an 8130-3?

A: There are a number of categories of parts that do not qualify for an 8130-3 or Form One. One example is military surplus parts, which are permitted for use in civil aviation under conditions described in AC 20-62 and AC 20-142. For parts that are not permitted under the MAG and its interpretive notices, there may be no path to sell such parts to an FAA EASA dual certified repair station.

 

Q: What if my parts were made by a foreign PAH?

A: Although the FAA has signed bilateral aviation safety agreements in which the US has agreed to accept certain foreign-produced parts, if there is no mechanism in the MAG for accepting these parts, then this may inhibit repair stations from accepting these parts.  There appears to be no mechanism under the MAG for receiving a part made under production approval from a jurisdiction other than US, EU or Canada (like an Embraer part from Brazil).

 

Q: How do you get an 8130-3 when one does not exist?

A: For parts with evidence of airworthiness and that were produced under a US production approval, you can apply through a designated airworthiness representative (DAR).  We understand that the expense of a DAR may be too much in some cases.  If there are no DARs available, notify the FAA.  Please send a copy of your notification to ASA, so we can track these issues.

 

Q: What other remedies may be available?

A: ASA has pending litigation against the FAA but please know that there is no mechanism to force them to review this situation before October 1, 2016, and the actual resolution date is going to be sometime in 2017.  The US government opposes our appeal.  It is always possible that the court will rule against the industry.  ASA is also working directly with the FAA to achieve some reasonable resolution that will permit safe aircraft parts to be sold to the installers who need them, on an ongoing basis.

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