An 8130-3 With a Distributor’s Address in Block 4

Recently, a non-US buyer asked whether a distributor can release an article as “New” even though the distributor is not the PAH of the article.  The non-US buyer explained that the distributor’s address was found in block 4, where the production approval holder’s address is often found.  The non-US buyer explained that the 8130-3 tag accompanying the article was issued by an FAA DAR.

The FAA has the ability to delegate certain powers to designees.1 FAA DARs are persons who are delegated the FAA power to review evidence, come to a conclusion that an article is manufactured under FAA part 21, meets FAA-approved design requirements, and is currently airworthy.2  The DAR documents the finding by issuing an 8130-3 tag.  This procedure is usually limited to new parts, except where an importing nation has agreed to accept used parts under an FAA 8130-3.

When the FAA DAR performs this task, the FAA DAR is acting on behalf of the FAA (the distributor is merely the applicant) and is subject to FAA reporting obligations and FAA oversight.  The FAA DAR must follow the FAA’s rules for issuing 8130-3 tags (this can impose additional limits; for example many DARs are only allowed to issue 8130-3 tags at the locations of accredited distributors).  It is important to recognize that the distributor is not issuing the tag – the FAA is issuing it through the FAA DAR.

FAA Order 8130.21H directs the FAA DAR to list the “full name and physical address (no post office box numbers) of the organization or facility for which the form is being issued.”3  This is the applicant.  The FAA DAR is typically required to list the distributor’s location in block 4.4

In recent years, the FAA has increased pressure on the industry to voluntarily use 8130-3 tags to identify their articles as airworthy.  This has caused more distributors to rely on FAA DARs as a source of 8130-3 tags.  8130-3 tags issued at a distributor’s facility have been around for decades, but the focus in recent years on 8130-3 tags has made it increasingly common to see 8130-3 tags with a distributor’s address in block 4.

 

ENDNOTES

(1) 49 U.S.C. § 44702(d); 14 C.F.R. § 183.1 et seq.
(2) E.g. 14 C.F.R. § 21.331 (explaining the standards for obtaining export 8130-3 tags).
(3) Procedures for Completion and Use of the Authorized Release Certificate, FAA Form 8130-3, Airworthiness Approval Tag, FAA Order 8130.21H change 1 paras. 2-8(d), 3-6(d), 4-5(d) (Jan. 11, 2016).
(4) See Id.at Appendix A, Figure A-5 (showing a sample 8130-3 tag issued at a distributor’s facility).

FAA Extends Designees Deadlines to April 30 – Offers Plan for Next Shutdown

During the last government shutdown, ASA asked the FAA to issue guidance extending the termination dates of all designees who expired during the shutdown, in order to allow them to continue providing critical safety-related services to the aviation industry.  This was due to the fact that as they were expiring, there was no FAA staffing to renew their designations during the shutdown.

The FAA was unable to do this (it was outside the scope of the Antideficiency Act and the DOT guidance).  But they did the next best thing. When FAA safety personnel returned to work before the end of the shutdown, they made designee oversight a priority. And then as soon as they could issue useful guidance, they did so.

On the first work day that the government was opened after the shutdown, the FAA published guidance explaining that designees in good standing may continue to perform authorized functions in an active status without regard to the status shown on the various designee databases (DIN, DMS or VIS). It also specifically allows designees to extend certain due dates for (1) designee recurrent training, (2) oversight, and (3) renewal. Those training, oversight and renewal dates are extended to April 30, 2019.

 

Which Designees are Affected by the Memo?

The memo applies to both Flight Standards Service designees (like DAR-T) and Aircraft Certification Service designees (like DAR-F, DMIR, and DER).  It does not apply to Air Carrier Check Pilot observations.

 

Which Due Dates are Affected by the Memo?

The memo applies to deadlines for required designee recurrent training, for required designee oversight, and/or for required designee renewal, when those deadlines arise during the period from December 22, 2018 through April 29, 2019.  The deadlines that fall during this period are extended to April 30, 2019.

 

What about ODA Unit Members?

The memo also applies to ODA unit members.  The may continue to perform authorized functions during this period.

 

How Does This Affect A Future Shutdown?

In the event the FAA experiences another lapse in funding, the memo wil continue to apply to that shutdown.  Such a subsequent shutdown has already been threatened and could arise after February 15, 2019.  If a subsequent shutdown lasts beyond April 30, 2019 then the FAA would have to find another solution (but no government shutdown has ever lasted than long).

ASA Members Confirm that Designee Oversight is Restarting

We have been communicating with senior FAA management about the issue of FAA designees whose privileges expire during the government shutdown.  While renewal is usually a straight-forward process, the shutdown has prevented the FAA from renewing designee privileges that are essential to the continued safe functioning of the aviation system.  Designee oversight is an important part of the FAA’s safety oversight system, and FAA has identified it as one of the important functions that should be conducted during the shutdown.

Yesterday, we reported that nearly 3000 additional FAA aviation safety staff had been ordered back to work. We are already seeing the results of this return.

Today, members began to confirm that the FAA was confirming renewal of designee privileges through their online system.  We know that some flight standards designees who were awaiting renewal have received their renewal notifications.

Aircraft certification designees should start enjoying the same oversight, as well.  The FAA has confirmed that some Aircraft Certification staff are among the safety personnel being recalled.

As of today the MIDO’s are nearly up to full strength. The FAA’s focus is on returning the MIDO employees to work, restructuring oversight plans, and starting surveillance up again.  This should be good news for DARs whose delegated privileges are issued via a MIDO.  FAA senior management has clarified that one of the focal areas for the returning aviation safety staff is designee oversight (including both ODAs and individual designees).  The FAA is also recalling a small number of Aircraft Certification engineers, who will be focused on continued airworthiness tasks, including designee oversight (e.g. DERs).

These returning FAA employees will continue to work without pay until the lapse in funding has ended. Congress passed a bi-partisan bill to ensure payment of back-pay to the federal employees, and that bill was signed by the President yesterday, so we know they will be paid, eventually. ASA continues to empathize with the FAA staff whose pay remains withheld, but we also remain proud of the dedicated FAA staff who are returning to their safety mission during the funding lapse.

Renewing Delegated Privileges During the Shutdown

Delegated privileges for DARs, DERs and DMIRs need to be periodically renewed. Normally, the renewal period is annual (every twelve months).  This affects many people in the aircraft parts community, including the DARs who issue 8130-3 tags for aircraft parts.

Under current guidance, a designee that is not renewed by their expiration date will be automatically placed in expired status.  When a designee is placed in expired status, he or she is not permitted to exercise the delegated functions.

A designee in expired status has a 90 day window.   During that 90 day period, the managing office is expected to determine a follow-on action, that is, either reappointment or termination.  In the event no FAA action is taken, then the action defaults to termination.

This could be a real problem for those designees whose expiration arises during the current lapse in funding (aka the shutdown), because there is likely nobody in the local office who can renew their delegated privileges.

To remedy this, we have asked the FAA senior management to issue a memo that tolls the expiration date of DAR, DER and DMIR delegated privileges.  This would have the effect of freezing the privileges as they existed on December 21, and if they were scheduled to expire between that date and the resumption of funding, then the privileges  would continue in place through the tenth business day after funding resumes (to permit a window of time to process the backlog).

This is a proposal only – and it is likely that the FAA will be unable to issue this proposed memo during the shutdown.

After the 2013 shutdown, FAA issued extensions and deviations once the government was reopened – we expect that this is the approach that will be used again in 2019.  Although the precise nature of the extensions and deviations that will be issued after the shutdown cannot be predicted, we hope that ASA’s draft memo tolling the expiration date of expiring delegations will be used as a template to endorse DAR work performed during the shutdown.

Government Shutdown Advice: DARs May Continue Functioning

We continue to get inquiries about designee functions during the government shutdown.

Generally, DARs should go back to their authorizing documents and ensure that they do not have any restrictions that would forbid exercise of authority during the shutdown. As long as there is no limitation/prohibition, and as long as the DAR has general authority to issue 8130-3 tags, it should be acceptable for the DAR to continue issuing 8130-3 tags during the government shutdown in the same manner that the DAR did before the shutdown.

For a complete discussion of this issue, please see our article: DAR Privileges, During the Shutdown

DARs – Where Can They Work? From Home?

I have heard from quite a few ASA members that their DARs are being told that they can no longer work from their own facilities.  This is a problem for many DARs who receive parts at their home or office, review each part and its paperwork, and then if the part is eligible the DAR issues an 8130-3 tag for the part.

The source of the issue appears to be an FAA email that stated:

It has come to the attention of the FAA some designees are unclear on where FAA Form 8130-3 may be issued when performing authorized work at the request of a distributor.  As defined in FAA Order 8130.21, any certification work when performed on a distributor’s inventory must be performed at the distributor’s place of business.  This policy does not allow for a designee to perform these functions at their personal home location.  In addition, the Designee Management Policy in FAA Order 8000.95 requires the designee to define the location of where the activity is going to take place, prior to the FAA delegating the function.

Contrary to the email, there is no general requirement in FAA Order 8130.21H that 8130-3 tags must be issued “at the distributor’s place of business.”  We’ve been in touch with FAA Headquarters about this, and they have pledged to examine the situation.

Different Type of DARs

In examining the guidance situation, it is important to remember that there are different types of DARs with different privileges.  There are DARs who received their privileges under FAA Policy memos:

Those DARs are typically restricted to only working at the facility of the sponsoring distributor.  The reason for this is because their privileges are tied to the AC 00-56B system of the distributor. They use a systems approach based on the accredited system to support their findings.

These ‘limited-DARs’ should be contrasted with traditional DARs who are not specifically tied to an accredited distributor.  Traditional DARs are typically limited to the geographical range of the office from which they received their credentials (the managing office).  If the DAR needs to work outside of that range, then there is a well-documented process for expanding those geographic limitations (it involves assurances that the FAA is able to adequately monitor and supervise the designee, as well as coordination between geographically relevant offices).

Note of course that a DAR who lives in a geographic district different from that of his or her FAA managing office should consider transferring to a more geographically-suitable FAA managing office if he or she plans to work from (and issue tags from) a home office.  Designee operations outside of the geographic territory of the managing office are typically not permitted without written permission from the FAA.

Limit on ‘Traditional’ DARs

The recent email received by some DARs appears to have been sent to traditional DARs.  But it appears to have confused the restrictions placed on the special category DARs who work on for distributors (and who must operate within the AC 00-56 quality system of the distributor), with the privileges of ‘normal’ DARs, who may operate anywhere within their prescribed geographic limitations.

This is more than just a matter of confusion of standards.  There are problems with this directive, including:

(1) Order 8130.21H states that when a tag is issued at a distributor’s facility then the distributor’s name and address should be placed in block 4 – but this does not limit where the tag can be issued – it only sets a rule for how to complete block 4 (this is consistent with the guidance in para 2-5(b) of that same order, which requires block 4 to state the name and address where the tag is issued;

(2) There is no restriction in Order 8130.21H that forbids a DAR from operating out of his or her home, even when reviewing parts that belong to a distributor;

(3) Many DARs are both semi-retired and aged, so it is not unusual for many of them to operate out of their home offices,

(4) When the DAR operates out of his or her home office, the distributor must bring the parts to the DAR for review prior to issue of the tag; and,

(5) Order 8130.21H requires that the 8130-3 state where the tag was issued, so it is supposed to list the DAR’s home office address, if that is where the tag was issued.

The recent language is already causing problems for several distributors, whose DARs feel that they can no longer accept and review parts at their home offices.

ASA has brought this to the attention of FAA management, and they rapidly pledged to examine the situation.

DAR Privileges, During the Shutdown

We have been receiving queries about what the Government Shutdown means for DARs who issue 8130-3 tags.  The Government Shutdown began Friday night after midnight, when the appropriations continuing resolution expired.

Some people have received notification that their DAR needs pre-approval from their FAA Advisor before doing any DAR work; in the absence of working FAA employees, such pre-approval may be impossible. This means that those DARs may be unable to function during the shutdown because of the absence of FAA employees to issue such pre-approval.

But this does not mean that all DARs are inhibited in this way.  In fact, many DARs should be able to issue 8130-3 tags during the government shutdown.

What is the Legal Effect of the Shutdown?

The U.S. Constitution limits the ability of the government to use funds by stating that money can only be spent if it is permitted under an “Appropriation.”

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time. U.S. Constitution, Article I, Section 9, Clause 7

The government is shut down because the government no longer has the authority to spend funds (because the appropriated funding from the most recent continuing resolution ran out on Friday, January 19).

The continuing resolutions that have been discussed in the press have appropriated funds for temporary periods, in order to keep the government functioning at its prior appropriated levels during the temporary funding period. Congress did not pass any sort of extension by the deadline, so the U.S. Government no longer has authority to spend money.

The government shutdown does not mean that the government can’t function – it means that the government can’t spend money.  DARs do not draw any appropriated funds from the U.S. Treasury for their DAR activities, and thus their activities are not curtailed merely as a consequence of the government shutdown.

What Rules Apply to DARs?

There are other rules that apply to DARs that might curtail their activities, or some of their activities, depending on the specific written authority that they’ve been granted.

FAA guidance explains that:

“DARs may perform authorized functions only within the limits of their authority.” FAA Order 8100.8D – Designee Management Handbook ¶ 1410(b).

DARs cannot perform functions outside the authority.  So if you couldn’t perform a function before the shutdown, you still cannot do it during the shutdown.  This also means that if the DAR’s written instructions required him or her to obtain FAA-Advisor approval before beginning a project, that the government shutdown may inhibit that DAR from starting new projects (due to lack of pre-approval).  Similarly if the DAR received appropriate approval before the shutdown (e.g. on Friday the 19th), then the DAR would still be eligible ,

The same FAA guidance also explains that the FAA needs to obtain authorization before accepting “certification or inspection activity.”

“DARs must contact their managing office for authorization BEFORE accepting any certification or inspection activity requested by an applicant and obtain any special directions or instructions deemed necessary.” FAA Order 8100.8D – Designee Management Handbook ¶ 1410(c).

This means that DARs need be authorized to perform DAR work before they start it.  For projects involving complete aircraft, this can mean going back to the FAA Advisor for each aircraft, which permits the FAA Advisor to review any special conditions applicable to that aircraft.  But typically, DARs are provided with general authorization to issue 8130-3 tags for articles, and the DAR’s instructions will be issued with that general authorization.  It would be extremely impractical for DARs to go back to their FAA advisors for form-by-form instructions for each 8130-3 tag that they issue.  It is not unusual for the FAA to insist on annual or quarterly activity reports showing the 8130-3 tags issued (thus permitting review of the use of the authority as it has been exercised).

DAR Advice

What does this mean for DARs who issue 8130-3 tags for articles?  It means that they should go back to their authorizing documents and ensure that they do not have any restrictions that would forbid exercise of authority during the shutdown.  As long as there is no limitation/prohibition, and as long as the DAR has general authority to issue 8130-3 tags, it should be acceptable for the DAR to continue issuing 8130-3 tags during the government shutdown in the same manner that the DAR did before the shutdown.

For DARs who are exercising authority under the FAA’s policy memos, be sure that you are operating under the authority of the appropriate FAA guidance, including the policy memos, which impose additional limits beyond those in the FAA Orders.  For more on this authority, see our past articles:

And also be sure to review the FAA’s policy memo guidance and remain in compliance with the terms and conditions found therein:

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