Some FAA DARs Told to Require Back-to-Birth as an 8130-3 Tag Prerequisite?

Several ASA members have contacted us to say that some of the FAA DARs in their area have been told that they cannot issue 8130-3 tags for aircraft parts without full back-to-birth traceability.

One member asked whether this policy is in the Federal Aviation Regulations and also whether the FAA can enforce such a policy. The short answers to those questions are (1) No, this policy is not embodied in the regulations and it contradicts existing FAA policy, and (2) Yes, the local office has the ability (but not the legal right), to nonetheless enforce such a policy.

In 1992, the FAA Chief Counsel’s Office issued a FAA Chief Counsel’s Letter addressing this subject. See FAA Chief Counsel’s Interpretation 1992-36. It explained that the FAA has not imposed any traceability obligation on aircraft parts. It also clarified that this is true for life-limited parts – the only direct regulatory documentation obligation imposed on installers of life-limited parts is a record of current life status, which comes from the operator’s part 91 obligations (the requirement for back-to-birth traceability is a commercial requirement imposed by the industry). See 14 C.F.R. 91.4127(a)(2)(ii).

DARs are currently required to follow FAA Order 8130.21G when they issue 8130-3 tags. This guidance limits 8130-3 tags only to those parts produced under FAA production approval. Thus, DARs should verify that that part was produced under FAA production approval. But it is usually possible to do this without a complete audit trail back to the original manufacturer.  Other FAA guidance makes it clear that you can use markings, or commercial documents like air carrier verifications of source as a means of ascertaining that the part is what it purports to be.

Several of the persons complaining about the new policy have stated that this policy is only enforced in South Florida. 8130-3 guidance is issued by FAA Headquarters in Washington, DC. A local FAA office does not have the legal authority to issue alternative guidance that contradicts national policy and that applies only in that locale and in no other locale.  If a local office does issue such alternative guidance, then this raises a difficult situation for DARs. While we might like to think that DARs can ignore an “illegal order,” the reality is that DARs would do so at their own peril. A local office has the discretion to terminate a DAR’s privileges at will, and if they use a pretext to justify that termination, the Federal Courts have said that the validity of that pretext is not subject to legal review because of the discretion given to the FAA by Congress. See Steenholdt v. FAA, 314 F.3d 633 (D.C. Cir. 2003).  Thus, as a practical matter, if a local office issues alternative policies that contradict national policy, DARs must follow the alternative policy or risk losing their privileges and their livelihood. So even though the local office may not legally change the policy for issuing, an illegal change in policy can be readily implemented through the DAR cadre.

This is a bad time for unusual limits on 8130-3 tags. The President has announced a plan to double US exports over the next five years and ASA has been working with the International Trade Administration to try to help make this a reality through education and opportunity.

The FAA has also signed BASAs that make 8130-3 tags a prerequisite for export.  The BASAs take 8130-3 tags that once were optional and make them requirements in order to engage in export transactions.  Local limits on the issuance of 8130-3 tags that go beyond national policy threaten our trade balance, and also threaten American jobs at a time of already high unemployment.

Because of the FAA’s discretion to terminate a DAR for any reason, DARs are practically unable to fight against bad or illegal policies, even when they are being used as pawns to implement those policies. Therefore, it often falls on trade associations like ASA to address these concerns.

If the rumors are true, then this situation is a very serious one. ASA has asked its affected members to further investigate and find out if the limits on 8130-3 tags have been merely misinterpreted.  Anything that anyone in the industry could provide us, such as FAA training materials, FAA memos, or even FAA emails explaining this new policy, would be very useful in permitting ASA to address this concern with the FAA.

About Jason Dickstein
Mr. Dickstein is the President of the Washington Aviation Group, a Washington, DC-based aviation law firm. He represents several aviation trade associations, including the Aviation Suppliers Association, the Aircraft Electronics Association, the Aircraft Fleet Recycling Association and the Modification and Replacement Parts Association.

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