Does a Dual-Certificated Part 145 Repair Station Need Documentation for Parts, or Can It Inspect Them, Prior to Installation?

An ASA member recently asked us to answer a MAG 6 question.  MAG 6 refers to revision 6 of the Maintenance Annex Guidance between the Federal Aviation Administration and the European Aviation Safety Agency.

QUESTION: The ASA member (a dual-certificated repair stations subject to the MAG 6 requirements) asked “Concerning USED replacement parts intended to be fitted to an engine during the maintenance process, does EASA expect every single one of those items installed during the maintenance process to have a dual-release 8130-3, dual-release TC Form One, or dual/tri-release EASA Form one with it assuming it is not a standard part?  (Reference item 10, Section B, Appendix 1 from US-EU Mag, Chang 6)”

ANSWER: The short answer is that a dual-certificated (part 145) repair station in the US generally need specified documentation for used parts intended to be fitted during maintenance, BUT such a repair station can accept a part without the specified documentation if it inspects the part under FAA Notice 8900.429.

First of all, the reader should note that MAG 6 is DIFFERENT from the EASA regulations and therefore an answer under MAG 6 might be different from the answer to a similar question posed purely under EASA regulations.

MAG 6 explains that when a repair station wants to install used components, those components must meet the following conditions before they are fitted during maintenance:

  • Must be in a satisfactory condition for installation;
  • Must be eligible for installation as stated in the PAH parts catalogue or aviation authority (AA) approval document (like a FAA-PMA supplement);
  • Must include one of these authorized release documents (as a maintenance release for a used component) from an appropriately rated maintenance facility:
    • FAA Form 8130-3 from EASA-approved U.S.-based 14 CFR part 145 repair stations;
    • EASA Form 1 from EASA Part-145 approved maintenance organizations not located in the U.S.
    • Canadian Form 1 from a Canadian EASA-approved maintenance organization;
  • In the case of life limited parts, the life used must be appropriately documented.

The FAA recognized that there are significant problems with this language.  It simply doesn’t cover all of the normal situations typically found in the industry.  So the FAA issued FAA Notice 8900.380 (which expired in 2017), followed by FAA Notice 8900.429 (which effectively extended the policy published in Notice 8900.380).  Each of these Notices permits new and used parts to be inspected by a properly rated repair station (notwithstanding the apparent limitations of MAG 6).  The repair station should have appropriate inspection criteria for conducting the inspection.

FAA Notice 8900.429 will expire August 8, 2018, and is expected to be encompassed in permanent guidance before that date.  If this Notice has not been replaced by appropriate guidance by next summer, then ASA will likely petition to have a third Notice issued in order to protect the industry’s ability to accept and use airworthy parts.

So, in summary, a dual-certificated repair station in the U.S. (and subject to MAG 6) receiving used components that are intended to be fitted during maintenance must either (1) receive them with an appropriate 8130-3, EASA Form 1 or TCCA Form 1, or (2) perform an inspection of the parts and find them eligible for installation.

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FAA Transitioning Limited DARs to Full-Function DARs

Today, the FAA issued a memo that permits the limited designated airworthiness representatives (DARs) [commonly known as DAR-56s] to transition to normal DARs with function code 19 privileges.  This is a major achievement for ASA’s members!

The Guidance

The new FAA guidance is known as Memo Number AIR-600-17-6F0-DM08.  This memo permits current DAR-56 privilege holders to apply for function code 19 privileges.

The reason for this change is to resolve certain limitation that the FAA now believes are unnecessary.  The first unnecessary limitation involves the date of  receipt of the parts.  DAR-56 privilege holders can only issue 8130-3 where the parts were received by November 1, 2016.  This date was arbitrary, and did not to address the fact that production approval parts are still entering the system from manufactures who do not issue 8130-3 tags.  Transitioning to function code 19 will eliminate this date restriction.

The second issue this resolves is that the DAR-56 program only permits tagging of a very limited slice of parts.  A much broader swath of parts are eligible for 8130-3 tags under current FAA policy.  Function code 19 permits tagging of parts with adequate evidence that they were created by a production approval holder, and have suffered neither damage nor degradation since release from the production approval holder’s quality system.  While this category is subject to FAA guidance, it is still broader than the very narrow limits associated with DAR-56.

The deadline to apply for a smooth transition is 90 days from the date of the memo (Tuesday, 2 January, 2018).

The Process (for DAR 56 holders)

If you currently hold DAR 56 privileges, then you should apply to your local (“geographic”) Manufacturing Inspection District Office (MIDO) for appointment as a DAR-F with function code 19.  You can find your geographic MIDO on the FAA’s website.  Using the “select the state” function at the bottom of the page (but above the blue footer), enter your state where you operate and find which MIDO is your geographic MIDO.

Then, apply to your geographic MIDO using the on-line Designee Management System tool.

In order to be appointed as a DAR-F under this program an applicant must meet the minimum qualifications provided in FAA Order 8000.95. Look within 8000.95 for the criteria – specifically in Volume 1, Chapter 2 and in Volume 8, Chapter 2.

There is one significant difference from the standards found in FAA Order 8000.95 and the transitioning DAR 56s.  That is the experience provision.  Under the FAA memo, the applicant who has applied for a timely transition from DAR 56 privileges does not need to meet the normal 36 month experience  requirement.  Instead, the applicant must

“[h]ave a minimum of 12-months actual working experience for the accredited distributor under the quality system at the accredited distributor location(s), specifically:

a. Experience in either receiving inspection and/or quality assurance processes; and,

b. Experience reviewing documentation and/or part markings which can be used to verify that parts and articles are traceable to the PAH.”

Application checklist:

  • Identify your geographic MIDO;
  • Complete the required FAA training (you will need to submit the training certificate as part of your application package);
  • Obtain a letter of reference from the accredited distributor (signed by someone who can represent the business); a sample can be found in attachment 1 to the memo;
  • Ensure that your application details match those already filed for you under the DAR-56 program;
  • Apply through the DMS system, and include:
    1. Evidence of completion of the required FAA training;
    2. The letter of reference from the accredited distributor;
  • Notify FAA Headquarters that you currently hold function code 56 privileges and that you have filed an online application seeking function code 19 privileges.  Perform this notification by ending an email to the AIR-6F0 mailbox at AIR160-limiteddarf@faa.gov.  AIR-6F0 will notify the appropriate MIDO of the application, and let them know that it is subject to the provisions of the policy memo.

Once this process is complete, if the FAA reviews your package and finds that you can be transitioned to function code 19, then they will cancel your DAR 56 privileges and assign function code 19 privileges for issuing 8130-3 tags.  Don’t just rely on this checklist – be sure to study the policy memo!

Once you get the new function code privileges, you should expect that you will be limited to only exercising the privilege at the accredited facilities of the AC 00-56 accredited distributor.  This is not a “portable” credential, because it relies on the distributor’s AC 00-56B system as part of the basis for knowing that the part is in an appropriate condition to receive an 8130-3 tag.

The Process (for others)

We advised all of our members to obtain DAR-56 privileges.  But we recognize that some members did not follow this advice.  We also recognize that some function code 56 holders may allow the 90 day period to come and go without filing their application to transition.

If you do not hold DAR-56 privileges, or if you waited too long, then there is still a path!

The new guidance permits other persons to apply for function code 19 privileges under the terms of the memo; however such applicants are not entitled to the same presumptions enjoyed by transitioning DAR-56 holders.  If you fall into this category, then you will only be considered if the MIDO can independently establish that the FAA has a need and ability to manage the delegation; this means that you are going to need to convince the MIDO!  You also need to meet conditions that are comparable to those imposed on DAR 56 applicants.  You will still benefit from the alternative experience requirement (12 months experience with the quality system of the accredited distributor).

What About Export Tags?

The FAA has been transitioning away from a distinction between “domestic tags” and “export tags.” They took a major step toward that goal when they issued the memo guidance that explained that 8130-3 tags were no longer allowed to say the word “export.”  For a full discussion of this change, please see our blog post on the subject.

This transition is consistent with international practice, which typically does not distinguish between an “export tag” and a “domestic tag.”

So the future of the 8130-3 tag is that all tags will look the same – whether they are intended for domestic use or non-US use – and there will be no visible difference in the tag for exports.  The exporter is expected to address the special import conditions of the importing nation.  This has been FAA policy for some time, with export compliance obligations falling on the exporter and not on the DAR.

For newly transitioned DARs who are permitted to issue domestic tags under function code 19, this means that the tags will be useful for exports as well as for domestic transactions.

DAR 56? Apply to Extend Your Credentials by September 30!

Do you have function code 56 privileges?  If you do, then you need to renew your credentials ASAP – the deadline for renewal is September 30.  Instructions and other guidance for renewal can be found in our earlier post about submitting your request for renewal.

Background on FC 56

FAA created a program (AIR-100-16-160-PM13) that allowed qualified distributor employees to issue 8130-3 tags as DARs exercising function code (FC) 56.

Many of the eligible new parts had been accepted under their previously acceptable documentation schemes, which were both known and recognized within the industry. ASA argued that under FAA policies (like FAA AC 20-62E), these documents were sufficient to identify a new part and to permit installation, so issuing an 8130-3 tag based on that evidence should be a mere ministerial task. The FAA agreed and created a Limited DAR program (“DAR 56”) in which individuals could obtain the DAR privilege of issuing 8130-3 for parts when the following conditions were met (this is only a partial list):

  1. Individual must work for an accredited distributor, and can only tag parts that were received by the distributor’s accredited system before a certain date (currently November 1, 2016)
  2. Individual must complete FAA training
  3. Part must either bear (1) part markings regulated under 14 C.F.R. § 45.14 [PMA, TSOA and critical parts], (2) a certificate from the manufacturer, confirming that the part was produced under a FAA production approval, or (3) a certificate from the manufacturer’s direct-ship authorized supplier, confirming that the part was produced under a FAA production approval.

The program was scheduled to end on September 30, 2017 but was extended by an additional policy memo (AIR-600-17-6F0-PM01) until 2018.

Discussion with the FAA About the Future of DAR 56

The FAA is considering converting all FC 56 DARs into FC 19 DARs (they will need to apply through normal channels, but the FAA would treat their distribution experience as relevant experience for obtaining Function Code 19 privileges).

If this program goes through, then many of the FC 56 limitations would ‘go away’ and the DARs would be able to use function code 19 to tags other sorts of new parts that have clear indicia of having been produced by US Production Approval Holders.  This could make it easier to handle expendables that have been difficult to get tagged because of their volume and low-cost (relative to the normal cost of obtaining an 8130-3).  It is likely that the converted DARs woud lneed to rely on their AC 00-56 systems as a condition of the exercise of their functions.

This is not yet subject to final approval by FAA management, so it could change!

Advice

If you currently hold Limited DAR credentials under the “DAR 56” program, then

  1. You need to apply to extend your credentials by September 30 – that deadline is coming up fast!! You can find more details here;
  2. Be sure to use your credentials to issue 8130-3 – activity is an important metric when seeking to renew or upgrade your credentials;
  3. We are working with the FAA to permit transfer of your credentials to a permanent DAR with function code 19 (able to issue 8130-3 tags for a wider class of demonstrably airworthy, new parts). We hope to have more news on this, soon!

Important Changes Affecting How YOU Get Your 8130-3 Tags

ASA met with FAA to discuss access to 8130-3 tags.

As you all know, revision 6 of the Maintenance Annex Guidance added a new receiving requirement for aircraft parts: all parts manufactured by US Production Approval Holders (PAHs) must bear 8130-3 tags.  Although the requirement is technically limited to dual-certificated repair stations, it triggered a domino effect that has led many in the global industry to demand 8130-3 tags (sometimes demanding the tags on parts that are ineligible for such tags).

This effectively froze inventories of new (airworthy) PAH parts that bore documentation other than the 8130-3 (e.g. parts with manufacturer’s Certificates of Conformity, parts with back-to-birth traceability, etc.).  The small supply of DARs and high prices for 8130-3 tags relative to the cost of new expendables created a situation that was difficult to remedy.

The FAA issued two policies that helped to provide temporary remedies, while a permanent solution to the crisis is sought.

Temporary Remedy One: Repair Stations Can Inspect Parts

FAA issued Notice 8900.380 last year.  That Notice permitted repair stations to bring in parts without 8130-3 tags and inspect them to confirm airworthiness through traditional indicia.  That notice was expected to terminate in August; the FAA issued Notice 8900.429 to replace it.  The replacement notice is substantially the same as the original.

Repair stations looking for instructions on how to inspect such parts should contact the Aeronautical Repair Station Association (ARSA), which published their E-100 standard to guide repair stations in doing this.  Their standard has been favorably reviewed by the FAA as a tool for compliance to the MAG.

Temporary Remedy Two: Limited DARs

FAA also created a program (AIR-100-16-160-PM13) that allowed qualified distributor employees to issue 8130-3 tags as DARs.

Many of the eligible new parts had been accepted under their previously acceptable documentation schemes, which were both known and recognized within the industry.  ASA argued that under FAA policies (like FAA AC 20-62E), these documents were sufficient to identify a new part and to permit installation, so issuing an 8130-3 tag based on that evidence should be a mere ministerial task.  The FAA agreed and created a Limited DAR program (“DAR 56”) in which individuals could obtain the DAR privilege of issuing 8130-3 for parts when the following conditions were met (this is only a partial list):

  1. Individual must work for an accredited distributor, and can only tag parts that were received by the distributor’s accredited system before a certain date (currently November 1, 2016)
  2. Individual must complete FAA training
  3. Part must either bear (1) part markings regulated under 14 C.F.R. § 45.14 [PMA, TSOA and critical parts], (2) a certificate from the manufacturer, confirming that the part was produced under a FAA production approval, or (3) a certificate from the manufacturer’s direct-ship authorized supplier, confirming that the part was produced under a FAA production approval.

The program was scheduled to end on September 30, 2017 but was extended by an additional policy memo (AIR-600-17-6F0-PM01) until 2018.

Discussion with the FAA About the Future

Our most recent discussions with the FAA have been very positive.  They recognize the importance of having a path to economically obtain 8130-3 tags for demonstrably airworthy parts.  At present, they appear to recognize the importance of maintaining the temporary solutions until a permanent solution is adopted.  But the exact nature of a permanent solution is still elusive.

One option is for EASA to change what they “require” for receiving documentation.  One issue with such a “change” is that European regulations are not as strict as the MAG, so Europe simply does not have the problem that the US is facing.  Another is that European traditions of regulatory interpretation are more realpolitik than US traditions, which gives them even more room to do business.  This has been seen, first-hand, by distributors that find that parts rejected in the US for lack of MAG compliance are still readily accepted by EU-based repair stations.  Nonetheless, Europe is considering eliminating the need for an EASA Form One for non-critical parts (a term that still needs a settled definition in this context), which could provide some relief for the many airworthy expendable parts that have been caught-up in this issue.  These topics are expected to be on the table in the EASA Global Manufacturing meeting that FAA and ASA will both attend later this Fall.

Another option is providing more resources for 8130-3 tags.  Airworthiness approval tags were originally meant to be used only for aircraft and major assemblies – it was expected that exporters would self-certify the airworthiness of export articles based on other evidence (like evidence of production by a FAA-PAH).  Over the decades we have chipped away at this notion but some executives in the FAA think that the 8130-3 inhibits exports of airworthy parts more often than it facilitates those exports.  In light of the robust evidence of airworthiness that traditionally follows a PAH part, they are starting to lean toward relaxing the standards for issuing an 8130-3 where clear evidence of airworthiness is present.

These are just two options of the many that have been discussed; but they represent long-term projects – right now, we need to be focused on the short-term mechanisms for keeping airworthy parts moving in the chain of commerce.  So for that, US businesses that sell aircraft parts should carefully follow his advice:

Advice

If you do not yet hold Limited DAR credentials under the “DAR 56” program, then apply for them ASAP.  The ability to obtain 8130-3 tags through this program is going to be more and more important to distributors.

  • We recommend that you should have more than one person in your facility with these privileges, to allow for business continuity in the event one Limited DAR becomes unavailable;
  • Holding these Limited DAR credentials could also make it easier in the future to obtain permanent DAR credentials;
  • For some companies, the Limited DAR credentials have only limited utility.  Because they can serve as a bridge to other (more useful) credentials, we recommend seeking these credentials;

If you currently hold Limited DAR credentials under the “DAR 56” program, then

  1. You need to apply to extend your credentials by September 30 – that deadline is coming up fast!!  You can find more details here;
  2. Be sure to use your credentials to issue 8130-3 – activity is an important metric when seeking to renew or upgrade your credentials;
  3. We are working with the FAA to permit transfer of your credentials to a permanent DAR with function code 19 (able to issue 8130-3 tags for a wider class of demonstrably airworthy, new parts).  We hope to have more news on this, soon!

DAR 56 Extended Until August 2018 – Submit Your Request For Extension NOW!

The FAA has extended the Limited DAR-F program that allows certain employees of accredited distributors to issue 8130-3 tags for certain inventory known to have been produced by an FAA production approval holder (commonly known as the “DAR 56 program,” reflecting the function code number).  This is an important victory for distributors who rely on this program as a source of 8130-3 tags.

One Year Extension

The program was extended by a policy memo published on August 25. The new termination date is September 30, 2018 (it was September 30, 2017).  In order to take advantage of this extension, limited DARs with function code 56 privileges must request an extension.  The new policy memo explains:

A currently appointed Limited DAR-F may request an extension by submitting an email to 9-AIR160-limiteddarf@faa.gov. Limited DAR-Fs that do not request an extension will be automatically terminated on September 30, 2017, in accordance with the current expiration date on their Certificate of Authority (COA) letter. The Delegation and Organizational Procedures Branch, AIR-6F0, will send an email to each Limited DAR-F who does not request an extension to inform them of the termination of their appointment. AIR-6F0 will issue a new COA letter with the new expiration date to each qualified Limited DAR-F requesting an extension. Each designee will be required to continue to provide quarterly activity reports using the FY18 Quarterly Activity Report in Attachment 1.

The new policy memo is identified by the policy number “AIR-600-17-6F0-PM01.”  This extension was made in response to ASA’s earlier petition, as well as our ongoing dialogue with the FAA about these issues.

The old DAR 56 policy, AIR-100-16-160-PM13, was previously described in this blog.  Reviewing that prior publication may be useful, because it provides many important details that are not repeated in the newer policy memo.  The new policy extends the old policy, incorporates it by reference, and includes significant changes in the reporting and oversight mechanism.

New Reporting and Oversight Mechanism

Under the original policy, designees were required to track the number of 8130-3 tags that they issued on a Quarterly Activity Report, but that form was not required to be submitted to the FAA (it remained available for review/submission upon request).   The new policy now requires information to be submitted to the FAA:

At the end of each quarterly reporting period, the FAA, via e-mail, will be requesting documentation in support of its oversight of each designee. Designees must submit the requested materials via email to 9-air160-limiteddarf@faa.gov. In addition, AIR-6F0 will be making site visits to conduct on-site direct observation of selected Limited DAR-Fs. Each site visit will be coordinated with the designee in advance and the distributor management representative will be notified.

So look for the emailed request for documentation, from the FAA!  It is possible that the FAA could ask for something different than the Quarterly Activity Report, but it is unlikely because the Report is the only record required to be kept under the program.  Also, do not be surprised if the FAA tells you that they will be visiting your facility to oversee your DARs – these sort of site visits will become a normal part of the process.

What’s Next?

The FAA recognizes that DAR 56 is merely a temporary solution to a larger issue.  The FAA has published a five step plan to move this issue forward toward a long-term solution:

1)  FAA meeting with EASA – The FAA has scheduled a meeting with EASA management in Cologne in late August to address the specific EASA requirement for an FAA Form 8130-3 and to discuss other options.

2)   Additional outreach to production approval holders (PAHs) – The FAA is looking into additional outreach to the PAH community  to ensure awareness of the current MAG 6 requirement and that they understand the recent Part 21 rule change allowing them to request a quality manual update to issue tags themselves.

3)   Work with distributor community to ensure they are requesting Form 8130-3s from PAHs – FAA is planning to reach out to the distributors that have Limited DAR-Fs to encourage them to request Form 81 30-3s on their purchase orders for parts that could be destined for EASA repair stations.

4)   Ensure awareness of Notice 8900.422 – This notice allows repair stations  to perform inspections on parts received without the required documentation and to issue FAA Form 8130-3s. This notice is in essence a reissuance of Notice 8900.380.

5)   Meeting of FAA and industry reps on 8130-3 tag matter – FAA is planning to arrange a meeting  in Washington, DC in the next month or so, where we will bring a select group of industry and FAA stakeholders together to discuss how we further address the 8130-3 tag issues and concerns going forward.   We will ensure that [ASA is] invited to participate.

Also on the agenda for the September meeting between FAA and the distribution community in a discussion of ASA’s request for expansion of the scope of the DAR 56 program to include (1) parts received after the arbitrary 2016 cut-off date (including newly produced parts and newly surplussed parts), and (2) parts bearing industry standard indicia of airworthiness, like documents described in AC 20-62E, and new surplus parts verified by an air carrier to be in new condition.

Other Details

The observant among you will notice that the originating office (the first part of the policy number) has changed from AIR-100 to AIR-600.  This is because of the FAA’s Aircraft Certification reorganization.

Interested in the program, but not yet part of it?  Qualified employees of AC 00-56 accredited businesses can still apply for DAR 56 privileges until August 1, 2018.

Got Outside Sales Personnel? You Have a Chance to Tell the Labor Department When You Should be Required to Pay Them Overtime

The Labor Department is seeking comments on an overtime rule – one that affects overtime payments to outside sales personnel and to administrative and executive personnel.  This is a rule that could dramatically change the pay structure of certain distributors, and is worth the attention of ASA members.

Background

The Fair Labor Standards Act (FLSA) generally requires covered employers to pay their employees overtime premium pay of not less than one and one-half times the employee’s regular rate of pay for any hours worked over 40 in a workweek. But there is an important exception that exempts “any employee employed in a bona fide executive, administrative, or professional capacity … or in the capacity of outside salesman ….”  These perosnnel are known as “exempt” personnel, and they are not subject to the FLSA protections.  Thus, outside sales personnel do not have to be paid overtime.  This allows outside sales personnel to be paid based on productivity rather than hours of effort (e.g. commission) where that compensation mechanism is appropriate.

The Issue

In May 2016, the Labor Department under President Obama issued a new rule that would extend overtime benefits to many employees who did not previously enjoy those benefits.  The Administration had bragged that this will automatically extend overtime pay protections to over 4 million workers who did not previously have this entitlement.

The Obama Administration proposed to add new tests that would have extended overtime pay to many categories of personnel (including outside sale personnel).  The new tests included a salary-level test and an automatic updating mechanism which would have extended the standards found in FLSA.  In November, a Federal Court stopped the rule from being implemented.  The Court concluded that the overtime exemption statute (29 U.S.C. § 213(a)(1)) was plain in its language, and did not permit the Department of Labor to add tests that undermined those exemptions.

The Trump Administration has pledged to dismantle many of the programs established by the Obama Administration, and this is the next one to potentially face the chopping block.

What Now?

On February 24, 2017, President Donald Trump signed Executive Order 13777, “Enforcing the Regulatory Reform Agenda,”  that directed federal agencies to identify regulations for repeal, replacement, or modification.

The overtime rule has been enjoined from enforcement, but it is still on the books.  It makes sense to revoke it, consistent with the  Executive Order.  But you cannot just waive a magic wand and be rid of a regulation – it must be rescinded using the same Administrative Procedures Act process that was used to enact it.  The Department of Labor has potentially started this process.

The Department of Labor has put out a request for information in which they are seeking comments on the overtime provision.  The call for comments includes a list of questions, but any comments on the overtime provisions are welcome.  The list of questions includes questions about reforming the overtime provisions in order to make them acceptable.

Written comments should be sent to the Department on or before September 25, 2017.  Please let ASA know your concerns, as well, so our comments can reflect your concerns.

Responding to an Administrative Subpoena

Many administrative agencies have subpoena power.  This means that they can send you a subpoena insisting that you give testimony, or (more commonly for administrative subpoenas) provide documents.

The first step in responding to an administrative subpoena is to issue a “litigation hold” within the company.  This is a written notice to your staff directing them to preserve any documents, records, or other information that may be responsive to the subpoena.  Rather than relying on the staff to identify what is responsive, companies typically want to prevent the staff from destroying any records, except under the direction of an attorney.  This also may mean turingin off systems that automatically dispose of records.  For example, if your system automatically deletes emails after a certain period, or if you periodically purge records, then those mechanisms should be turned off until a legal review can determine the right course of action (and don’t be surprised if the legal review insists that those purging systems stay off for the duration of the investigation).  Litigation holds can include both electronic records and paper records and can even apply to handwritten notes.

The second step in responding to an administrative subpoena is to talk to a lawyer (this is interchangeable with step one – they should happen at about the same time – the lawyer’s help may be quite useful in issuing the internal hold message).  There are many reasons for this, but one of them is that not all subpoenas are created equal.  It is possible that you might not need to respond, or that the right course of action could be to file a formal motion to quash.

I have encountered both valid and invalid administrative subpoenas over the years.  Validity can turn on a wide variety of factors.  Sometimes the subpoenas are issued by parties who were not authorized to issue them (rending the subpoena invalid). Sometimes they are overly broad; talking to the administrative agency about their investigative focus can sometimes help narrow the scope of the request to a more reasonable scope.  If you do this, though, make sure you record any such agreement about a change in scope in writing, with the government inspector’s written concurrence.

If the administrative subpoena is invalid, then you may wish to move to quash the subpoena.  Remember that one remedy for an invalid subpoena is to withdraw it and reissue a valid one, so discuss strategy carefully with your lawyer.

If the administrative subpoena is valid but needs to be amended (needs to be more specific, less overbroad, etc.) then you may want to have your lawyer negotiate an amendment with the issuing agency.  Sometimes the subpoena calls for an avalanche of records when the government only needs a small trickle, but the agent who issued the subpoena did not know how to describe the narrow category of records that he or she really wanted.

Remember that you are not always the target of the investigation.  An attorney can start to gauge the focus on the investigation by talking with the agency that issued the subpoena.  Many aircraft parts distributors have received subpoenas from export agencies because someone else in the chain of commerce is being investigated.  But if you are the target of an investigation, your rights in an administrative proceeding may be different than your rights in a criminal proceeding.

Having your attorney speak with the issuing agency is frequently a good move.  The investigator who caused the subpoena to be issued has a lot of power to modify the terms of the subpoena in order to (1) make it easier to comply, and (2) by easing compliance, make it more likely that the investigator will get the information that he or she desires.

Do not ignore the subpoena!  One aircraft parts distributor did and it cost them $225,000.  I know this claim sounds like part of an old-fashioned chain letter (or the modern email version), but in 2010 a distributor settled a claim that they had failed to comply with a subpoena, and it cost them nearly a quarter of a million dollars.

The facts of the case showed that the aircraft parts distributor had submitted 260 pages of responsive documents, but it failed to submit a copy of a post-sale e-mail.  The facts also showed that aircraft parts distributor had provided a copy of that email to its lawyer (the public documents did not reveal whether the lawyer was sanctioned for withholding that document).  The government even recognized that the company had relied in good faith on the advice of the lawyer in determining not to produce the e-mail.  Nonetheless, the company was accused of an egregious violation and ultimately settled the matter for $225,000.

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