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.
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Aircraft Articles, and Eligibility for an Export 8130-3 tag

An ASA member was recently told by a DAR that the DAR could no longer issue export 8130-3 tags based on traceability paperwork, and that the DAR would have to perform a full conformity on the aircraft part before issuing an export 8130-3 tag.

As you might expect, the ASA member was disturbed by this news, and asked us whether the rules had changed.  They have not.  While it is true that the FAA’s rules, policy and standards are constantly changing, there has been no change that would forbid issue of an export 8130-3 tag for a demonstrably airworthy part.

It is important to remember that issuing an export 8130-3 tag is NOT exactly the same thing as conforming a part to design data.  The export 8130-3 tag documents an airworthiness finding, which can be made in a number of different ways.  The applicant has an obligation to demonstrate conformity to type design and condition for safe operation at the time of application for the export 8130-3 tag, but this showing can be made in several ways and conformity inspection is just one of those ways.

Here are just a few of the ways that an FAA designee with the right privileges can find that a new aircraft part is eligible for an export 8130-3 tag (all assume that the new part is still in a condition for safe operation):

  • Establish positive traceability to the production approval holder and then determine that the airworthiness of the part has not been compromised;
  • Identify a new production part based on Part 45 PMA markings (the PMA article cannot be so-marked and released from the production quality system unless the manufacturer ensured that the article conformed to its approved design and was in a condition for safe operation);
  • Identify a new production part accompanied by identifying documentation from the production approval holder such as a shipping document, a manufacturer’s certificate of conformance or material certification, or an FAA Airworthiness Approval Tag, Form 8130-3;
  • If a designee with appropriate privileges performs a successful conformity inspection to FAA-approved design data, then the designee has made a finding of airworthiness of the article and can obtain issue an 8130-3 tag. This is typically not necessary except in those cases where the article cannot be found airworthy based on documentation or markings.

These four ways are taken from just one FAA guidance document.  Other ways to find airworthiness are listed in other guidance documents, so this is not a complete list.

Don’t forget that a designee needs to follow the FAA guidance related to issue of the export 8130-3 tag, such as the rules found in FAA Order 8130.21H.  So mere eligibility for an 8130-3 tag may be insufficient if some other requirement cannot be met.

It is equally important to remember that an FAA designee cannot issue an 8130-3 tag for a part if he or she is unable to make a finding of airworthiness.  For example, used parts that have not yet been returned to an airworthy condition (e.g. through overhaul) are not yet eligible for an export 8130-3 tag.  There are special requirements for issuing export 8130-3 tag for used parts, so even after an overhaul, an export 8130-3 tag might be inappropriate in some situations.

So there is NOT a new FAA policy requiring a full conformity as a prerequisite to issue of an 8130-3 tag.  Such a policy would not be consistent with FAA policy, nor would it be consistent with the purpose of the 8130-3 tag, which is merely to document an airworthiness finding.

Protect an Endangered Species: the FAA Designee; FAA Designee Management Policy is Open For Comment

Do you rely on a Designated Airworthiness Representative (DAR) or other designee to support your business?  If you do, then you know how critical designees can be to a business.  Often, though, designees are required by the FAA to do things that the FAA employees themselves are not permitted to do, like require paperwork that is not required by law or regulation (this can be a violation of the Paperwork Reduction Act), or impose standards of conduct that are not required by law or regulation (this can be a violation of the Administrative Procedures Act).

The FAA has issued for public comment a draft change to the guidance document affecting designees.  Although only parts are changed, it is a potential opportunity to comment on the entire document.

The original guidance is called “Order 8000.95, Designee Management Policy.”  It was first issued in April of 2014.

This guidance document provides a wide variety of guidance on how to manage FAA designees.  It has not and does not appear to cancel FAA Order 8100.8 (Designee Management Handbook), although some of the guidance appears to address some of the same issues as that guidance (failure to cancel 8100.8 might have been an oversight).

As a practical matter, designees (who are the people most directly affected by this guidance) will not be able to write comments that are critical to this guidance.  This is because designees can be terminated for cause or without cause, at the discretion of the FAA.  So the FAA can terminate a designee for exercising his or her First Amendment freedoms (as long as they come up with any other pretext for the action, including a termination ‘not for cause’).  Designees are well aware of this and they regularly self-censor their comments because of the chilling effect that the FAA’s discretionary termination power has had.  In some cases, designees have contacted me because they know that I will protect their anonymity.

The real-world issue us that designees rely on their designation from the FAA to ply their trade.  If they are terminated (for-cause or not-for-cause) then they cannot simply be a designee for someone else.  They need to choose a entirely different career path.  So the process for reviewing designee termination is very important.  And both the current policy and the draft policy are woefully inadequate, because they offer no standards for review, so the FAA employees are able to rubber stamp any termination decision on review.  Honest review depends 100% on the personal integrity of the reviewing personnel – and there is no formal training for the employees who act as reviewers in that process (by comparison, state court judges typically attend judicial training).

The FAA’s failure to have effective standards actually undermines the FAA’s own interests.  One example arises in the context of designee termination.  The lack of effective standards means that individual FAA employees can cause the termination of a designee for any reason, including a reason that would have been considered to be illegal if it was used to terminate an employee, as long as the party who initiates the termination offers a pretextual reason.  There is no formal inquiry into such pretext – it is taken at face value – and the VERY short time period for presenting a defense means that it is tough to be effective in assembling a defense: the full appeal including all supporting evidence must be submitted within 15 days – while the designee is given the charges, he or she has no opportunity to review the FAA’s underlying evidence.  In comparison, the appeals panel has 45 days to consider the appeal and then another 15 days to notify the designee of their decision for a total of 60 days.  We have seen evidence that FAA inspectors will use this period to gather more evidence to refute the defense and bolster the ‘prosecution’ so clearly the FAA is not bound to any sort of deadline for presenting its own case.

There is plenty that could be improved in the designee management process.

This is a great opportunity to help the FAA to better manage the designee community using effective processes that ensure fairness for everyone.  ASA members should strongly consider reviewing and commenting on this draft guidance.

Comments are dues to the FAA by January 7.  Please send comments to ASA, as well, so we can sure that our comments reflect your concerns.

Comments Due: 01/07/2015
How to Comment: Deliver comments by mail or hand to:
Susan Hill
1625 K Street NW
Suite 300
Washington DC, 20006Email comments to:  Susan.ctr.hill@faa.gov
Email CommentsFax comments to:
(202) 223-4615, Attn: Susan Hill

FAA Proposes to Permit Manufacturers to Issue 8130-3 Tags

Tomorrow, the FAA is expected to publish a proposed rule that would allow production approval holders to have the privilege of issuing 8130-3 tags, without recourse to a designee.  This could reflect a competitive disadvantage for distributors, who would continue to have to use DARs to obtain 8130-3 tags (manufacturers would have the option to issue 8130-3 tags but would not be required to do so, so they could use this as a way to help them compete in the distribution arena against independent distributors).

The rule would also redefine to the term “airworthiness approval” by adding “unless otherwise specified.”

New Proposed RuleAirworthiness approval means a document issued by the FAA for an aircraft, aircraft engine, propeller, or article which certifies that the aircraft, aircraft engine, propeller, or article conforms to its approved design, unless otherwise specified, and is in a condition for safe operation.

This new definition would appear to authorize 8130-3 tags with disclaimers (like 8130-3 for non-conforming parts, or for parts configured for certain foreign aircraft configurations).

An advance copy of the proposed rule can be found here:

https://s3.amazonaws.com/public-inspection.federalregister.gov/2014-04330.pdf

New FAA Language Affects DAR Management and Operation

The FAA has proposed a revision to their Inspector’s Handbook (Order 8900.1) which would provide new guidance for managing DARs.  This post suggests a s few preliminary notes on areas that could be improved in the proposed guidance; ASA would love to hear your views on this proposed language.

Geographic Expansion In the US

The proposed guidance includes significant new instructions for managing DAR applications to perform work outside of their geographic region.  The proposed guidance would establish a standard that would effectively preclude DARs from obtaining permission to work outside of their geographic area.  The proposed language states that when a DAR applies for permission to work outside of his or her geographic region:

The geographically responsible office should deny the request when a local inspector or designee can accomplish the work.  [proposed section 13-409(A)(2)]

Because every geographic region has DARs that are capable of issuing 8130-3 tags, you can always say that it is possible for a local DAR to perform work in another region.  This can therefore be used in every case as a justification for denying an application for geographic expansion.   Creating an “automatic no” in the guidance undermines the safety mission that DARs perform.

This proposed language would effectively preclude DARs from competing with  other DARs in other regions.  Competition is already limited by the small number of DARs that are eligible and available to issue 8130-3 tags for parts held by the industry.  By further limiting competition, the natural result would be for patterns to emerge which cause pricing to rise to monopolistic or oligopolistic levels (current charges for DAR services are already out-of-line with costs for government services).  FAA employees are generally precluded from issuing 8130-3 tags for aircraft parts (under the restrictive terms of FAA Order 8130.21G), but the FAA has made these tags generally necessary for both domestic and international commerce.  This means that FAA policy and executive agreements have made it commercially necessary to hire DARs to issue 8130-3 tags for demonstrably airworthy parts.  By introducing policies that encourage  monopolistic or oligopolistic pricing levels, the FAA is doing a disservice to the U.S. industry.

Principle Advisor

The guidance uses the term “Principal Inspector” or “PI” to reference the FAA employee with direct supervision of the DAR.  This seems incorrect.  Norms in the industry, as well as existing usage in FAA Order 8100.8D, use the term “Principal Inspector” or “PI” to reference the FAA employee with direct oversight over a certificated facility, while the term “FAA advisor” is generally used to reference the FAA employee with direct supervision of a DAR (in particular, “FAA advisor” is the term used in Order 8100.8D).

Applicant Convenience for International Authority

In 2007, the FAA published a rule change for 14 C.F.R. 21.325 to permit issue of an 8130-3 tag outside the United States.  This was done because it was more convenient for certain types of international transactions, and the FAA had granted a number of exemptions that accomplished the same end in the past.  The proposed guidance would undermine this 2007 rule change by proposing language that reads:

The designee has adequately identified the specific reasons for the performance of this activity outside the United States. Applicant convenience is not an adequate reason.

Applicant convenience is, in fact, the real justification for the rule change (combined with a finding that applicant convenience does not undermine FAA safety goals).  Imagine a situation where there is a large inventory of aircraft parts in a foreign nation.  Each of these parts is well documents with traceability that makes it clear that they were produced under US production approval, but the parts do not have FAA 8130-3 tags.  The documents that do exist make it easy to issue the 8130-3 tags.  The problem is that the inventory is significant and it is located outside of the United States.  While it would be possible to return the entire inventory to the United States for FAA 8130-3 tags, it would be economically impractical.  Sending a DAR to review the parts and issue 8130-3 tags is much more practical (and ultimately more convenient).  Thus, applicant convenience should be a valid rationale for international geographic expansion, as long as the international geographic expansion does not impose an undue burden on the FAA.

Conclusion

Please review the draft FAA guidance with your DAR, and get back to ASA with any other concerns you have identified.  Comments are due to the FAA by Sunday, February 10, 2013, so we would like to have industry comments by Monday, February 4 so we can incorporate them into ASA’s comments.

Policy Glitch Inhibits Manufacturing DARs from Issuing 8130-3 Tags

A number of ASA members have contacted us recently to tell us that their FAA Designated Airworthiness Representatives who hold MIDO-based privileges (DAR-Fs) have been restricted from issuing 8130-3 tags for parts held by distributors.

The issue concerns a recent change to FAA Order 8100.8 (the “D” revision).  It appears that there was a clerical error in the revision that is having an effect on safety in air commerce, by restricting the ability of DARs to issue 8130-3 tags where they are needed. We have asked the FAA to examine this issue and to work with us to correct it.

Background

It is very common for distributors to obtain aircraft parts that bear indicia of airworthiness, but that do not bear an 8130-3 tag.

One of the ways that distributors support the FAA’s desire to promote the common use of the 8130-3 tag is by actively obtaining 8130-3 tags for parts that do not bear such tags.  These tags are issued to parts by FAA DARs following inspection and document review.  The inspection and document review confirms that the part meets the appropriate FAA airworthiness standards and is eligible for an 8130-3 tag.

The availability of the 8130-3 tag has become very important to the industry for a number of reasons.  One reason is because many Part 119 air carriers have provisions written-into their FAA-approved and/or FAA-accepted manuals that require the 8130-3 tag as a condition of their receiving inspection.  Such air carriers often cannot accept a part without an 8130-3 tag (even if it bears other indicia of airworthiness) without violating the requirements of their own manuals.

Over the past decade, the FAA has established policies that permit Manufacturing DARs (DAR-Fs) and Maintenance DARs (DAR-Ts) to examine a part and its documentation, and where a finding of airworthiness can be made based on this examination, to issue an 8130-3 tag to document that finding.

Originally, these DAR functions were performed under function code 8 for DAR-Fs and function code 23 for DAR-Ts.[1]  Although DAR-F functions are normally limited to PAH facilities, the FAA made a special exception that permitted DAR-Fs to issue 8130-3 tags for aircraft parts at independent distributor  facilities (NOT at the PAH facility).  When this privilege was first issued, the FAA highlighted the fact that this was an exception to the normal rule (under which DAR-Fs usually work exclusively at PAH facilities).[2]

Later, the FAA recognized that the function of issuing domestic 8130-3 tags and the function of issuing export 8130-3 tags required the same skills and the FAA merged the authority for DARs to issue both domestic and export 8130-3 tags under  one function code for each type of DAR.  This lead to both forms of 8130-3 tags being issued under function code 20 for DAR-Fs and function code 32 for DAR-Ts (these function codes had previously been limited only to export tag privileges).

This change happened as the FAA was issuing new regulations that eliminated an  earlier restriction on non-manufacturers obtaining “class III” export 8130-3 tags.  While the restriction existed, distributors obtained “class III” export 8130-3 tags under an exemption from the regulations, which is why earlier versions of Order 8100.8 made reference to an exemption.[3]

While the exemption still technically exists, it was made moot by the 2009 recodification of Part 21, which eliminated the bar against non-manufacturers obtaining “class III” export 8130-3 tags (and also eliminated the class distinctions, as well).  This change permitted distributors to apply directly to the FAA (through DARs) for export 8130-3 tags.  Now, distributors are permitted to apply for both domestic and export 8130-3 tags and they no longer need an exemption.

What they do need, however, is a function code that authorizes DARs to be able to review parts held by distributors, make a finding of airworthiness where appropriate, and document this finding by issuing an 8130- 3tag.

The Details of the Change

Recent changes to FAA Order 8100.8D are being interpreted to preclude Manufacturing DARs (DAR-Fs) from issuing 8130-3 tags for demonstrably airworthy parts that are located at the facilities of distributors.

The reason for the change appears to be based on the reorganization of the functions codes.  We are not aware of any policy change that motivates this change in the language … it appears that the change is a clerical error.

The recently-replaced FAA Order 8100.8 C read:

20 Issue original/recurrent export airworthiness approval under the provisions of

14 CFR Part 21, subpart L, for articles manufactured in accordance with 14 CFR part 21. Individual DARs must be employed by an applicant who is the PAH of the articles being exported, and/or when the applicant meets the provisions of Note 2 below.

NOTE 1: DARs may be full-time, part-time, or contract employees of a PAH.

NOTE 2: This authorization includes export airworthiness approvals for articles located at a non-PAH distributor operating under an exemption to § 21.323(b)(2).

Now however, the description of function code 20 in 8100.8D, Table 15-2 states:

20 Issue original/recurrent export airworthiness approvals for articles manufactured in accordance with 14 CFR part 21. Individual DARs must be employed by an applicant who is the PAH of the articles being exported. DARs may be full-time, part-time, or contract employees of a PAH.

The language about function code 20 being the appropriate function code to use (when a manufacturing DAR examines an aircraft part at a distributor facility and issues the 8130- tag for that part) has been removed.  In fact, the new language (with the note removed) seems to imply that a manufacturing DAR cannot issue an 8130-3 tag at a distributor facility.

This appears to be an error of omission.  We are not aware of any policy decision by the FAA that would support this change, so it appears clear that this was a simple clerical error.  In order to correct this clerical error, we recommend that additional language be added to the description of function code 20.  In light of the fact that recent FAA policy has been to permit all distributors to apply for 8130-3 tags, not just AC 00-56 accredited distributors  (making the exemption moot), it would be appropriate to broaden the language of the prior note (to remove the reference to the exemption).  Such broader language would also be consistent with current industry practice (in which certain DAR-Fs support the distribution community and also with the current regulations (14 C.F.R. § 21.327 now permits any person to apply for an export approval).

ASA filed a petition with the FAA on March 5th, seeking to have this issue corrected.  We recommended that the FAA first issue a deviation memo and then subsequently issue an 8100.8D Change One document that incorporates all of the deviation memoranda intended to be incorporated (including also the February 28, 2012 deviation memo on the use of Form 8110-14).


[1] See, e.g., Procedures for Completion and Use of the AUthorized Release Certificate, FAA Form 8130-3, Airworthiness Approval Tag, FAA Notice 8130.70 (June 15, 2001) (permitting the issuance of 8130- 3 tags for airworthy parts located at independent distributor facilities).

[2] Id. at ¶ 5(b) NOTE (stating that “in order to ensure adequate DAR resources to support the activities authorized under this notice, these domestic airworthiness approvals may be issued by either manufacturing or maintenance DARs”).

[3] E.g. Designee Management Handbook, 8100.8C Chg 1 ¶ 1407(a)(10) (Feb. 15, 2008).

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.

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