ASA Argues 8130-3 Tags Before the DC Circuit

ASA appeared in court this morning to argue that the FAA’s new MAG-based documentation requirements violate US law and should be enjoined.  This is an important case for distributors whose parts sales have been impacted by the MAG.

The three judge panel consisted of Judge Tatel, Judge Millet and Judge Williams. Most judges are pretty smart, but these are three of the top jurists in the country.

We tried to focus the written briefs on the simple legal issues, but the underlying issues – those that involve questions like “just what is an 8130-3 tag, anyway,” and “why is the government doing this”? – are very complicated. Copies of our written briefs are available here:

As you might expect from three very smart judges, they wanted to know what the case was really all about.  This was difficult because the case is limited to the record on appeal and the FAA’s official ‘record’ was very sparse.  Last summer, ASA had tried to supplement the record with additional facts (affidavits from our members), but the FAA opposed our efforts (they standard approach is to limit the appeal to the record, so the court denied our efforts to supplement the record, but did take the member affidavits into account in analyzing our motion for a stay).  So we found ourselves having to describe a set of facts that were not well-documented in the record (and a lawyer is not supposed to testify as to new facts).

We did our best to try to explain how documentation works in the industry and when parts might enter a system without an 8130-3 tag, but with other indicia of airworthiness.

Questioning ran long this morning, as the judges tried to understand how 8130-3 tags work, and when (if ever) a part is allowed to enter a repair station without an 8130-3 tag.  The FAA’s attorney did not help matters by suggesting that parts without 8130-3 tags “lack provenance,” but we were able to explain that parts can be identified using other means and that the FAA has endorsed the use of other means of identification in AC 20-62E.

The Court was very much focused on FAA Notice 8900.380.  This is the Notice that reminds repair stations that they can inspect a part that doesn’t have an 8130-3 tag.  ARSA has put together an excellent checklist for that sort of inspection.  But even that FAA Notice 8900.380 appears to fall short, as some FAA inspectors have suggested that the Notice does not remedy the MAG requirement for a left-side signatures (“release must be documented on an FAA Form 8130-3 as a new part”).  So we have run into a problem with the Notice (which was supposed to at least provide a temporary solution) being ignored by the FAA’s own inspectors (who would not permit their repair station charges to adopt the terms of the Notice.

Judge Williams closed out the argument by suggesting the Europeans “snookered the US.”

The next step in the case is for ASA to wait for the opinion from the Court. There is no specific timetable for an opinion but often opinions are issued about 60-90 days after argument.  ASA remains engaged with the FAA in an effort to resolve some of the underlying issues in a way that allows airworthy parts to be accepted and used

An audio recording of the oral argument is available on line; you can hear the lawyers but unfortunately the Judges are difficult to hear on the recording (this is unfortunate indeed as their questioning demonstrated a keen thought process for each).

 

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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.

One Response to ASA Argues 8130-3 Tags Before the DC Circuit

  1. FYI….at Xstreamline Solutions we have developed a new automated 8130-3 Form Creator which Creates the populated 8130-3 Form in seconds. Very helpful for Parts Distributors with missing 8130-3 Forms. fred@xstreamlinesolutions.com

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