FAA Gears Up for Covid-19: What Does This Mean for Distributors and their DARs?

Ali Bahrami hosted a teleconference yesterday afternoon and invited industry leaders to discuss the FAA ongoing work to support aviation safety during the Covid-19 crisis.  Bahrami is the FAA’s Associate Administrator for Aviation Safety but he used to be with AIA so he understands the industry perspective, and the importance of transparency in government.

Bahrami expects the situation to impact the FAA for about 60-90 days, and has been planning accordingly. The FAA expects to issue new policy statements and extensions in order to facilitate aviation business while maintaining aviation safety.  They expect the first of the new guidance documents to be released by the end of this week.

Risk-Based Approach

Last week and this week the FAA has been working on using a risk-based approach to identify and categorize the tasks the FAA performs.  The FAA has used this approach to distinguish which tasks can be delayed and which ones must be accomplished as planned in order to preserve the expected level of safety.  Among those that must be performed as planned, they are investigating how best to ensure health and safety when they perform the tasks.  Some examples include:

  • The FAA is publishing guidance on how technologies can be used to perform remote oversight during the Covid-19 crisis;
  • Expiring class one medical certificates will be extended for 90 days so that holders will not have to visit aviation medical examiners during the Covid-19 crisis;
  • The FAA is investigating ways to mitigate the health dangers of Covid-19 in confined spaces, like health risks to to inspectors, trainers and students in simulators;

The FAA has been coordinating its plans with the International Civil Aviation Organization (ICAO) in order to help ensure that the FAA’s practices are consistent with those of the rest of the world, and will not adversely affect acceptance of  US aviation products in the rest of the world.

FAA Aircraft Certification Service

Earl Lawrence is the Executive Director of the FAA’s Aircraft Certification Service. He’s also a former trade association guy and an old friend – having worked for EAA for many years.  Lawrence joined the call to talk about FAA oversight of design and production, but he also answered questions about DARs, which is an important issue for ASA members.

DAR Extensions and Privileges

Lawrence explained that he remembered our concerns about DARs, and that the FAA is already working on the guidance for them.  The current guidance for the Covid-19 crisis will be modeled on the approach that the FAA adopted during the last government shutdown.

During the last government shutdown, ASA worked with Lawrence on protocols for extending DARs’ recurrent training and extension requirements.  Under those protocols, those who needed training during the shutdown would be able to wait and get the training after the shutdown; and those whose authority expired during the shutdown would be permitted to operate until after the end of the shutdown (the guidance included a window of time after the shutdown, because of the recognition that the FAA would not be able to process everything immediately, after the shutdown ended). This should be the model for treatment of DAR renewal and training during the Covid-19 crisis.

The new designee guidance is being developed jointly with the Flight Standards Service to make sure that all DARs are covered.  He expects it to be issued next week.

Remote Witnessing and 8130-3 Tags

Lawrence explained that his office is also working on how best to use technology during Covid-19 to accomplish their oversight goals.

In fact, his office is working on two pieces of guidance – one on deviation authority to permit use of remote technologies to carry out FAA oversight responsibilities and one on using technology to accomplish testing, oversight, witnessing and certification in FAA projects.  Lawrence expects both of these documents to be in draft form by today, and hopes to have them issued by early next week.

He expects that their ideas will be turned into guidance that can be used by FAA designees as well.  He specifically mentioned using remote technologies for issuing 8130-3 tags during the Covid-19 crisis.

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.

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

Why Does My Designee Have a New Number?

There may be some questions raised by ASA members when 8130-3 tags start showing up with unfamiliar (different) designee numbers.  Not to worry: The FAA is switching all FAA-designees over to their new DMS system and all designees are being given new, unique, nine-digit identification numbers known as “designee numbers.”

The DMS was announced in Order 8000.95,which is the FAA’s Order on Designee Management Policy.

DMS will collect, store and process data and information associated with designees and the designee management processes in accordance with FAA recordkeeping requirements. See Designee Management Policy, FAA Order 8000.95 (April 11, 2014).  Designees should note that there is an explicit disclaimer of privacy, so designees are surrendering any expectations of privacy that they may have with respect to information stored in this system.

Manufacturing DARs are first to go through this process and many of them have already received their new numbers.  The deadline for completing this process is ten days after the notification (which should have been received in June or early July), so if your manufacturing DAR is not yet registered properly in the DMS system, then please make sure he or she gets registered appropriately, ASAP; failure to renew through the DMS system could mean that the DAR loses his or her designee privileges!

The FAA intends for ALL manufacturing designees to be converted over to the DMS system by September.  To that end, all new manufacturing DAR and DMIR applications after May 7, 2014 are being processed through the DMS.

Maintenance DARs (those with Flight Standards credentials) are expected to be added to the system next year.

The “H” Revision to FAA Order 8130.21 Has Been Issued!

FAA Order 8130.21, Revision H, that has the updated FAA Form 8130-3 (02/14), was signed by AIR-200 on August 1, 2013 and is available on both the RGL and FAA websites.

This order, along with this updated FAA Form 8130-3, does not become effective until February 1, 2014.  This means the current FAA Order 8130.21G and the FAA Form 8130-3 (06/01) are to be used through January 31, 2014.  As you review the order, you will notice the updated FAA Form 8130-3 has a new revision date of (02/14).

The FAA is currently in the process of communicating with the rest of the world to let them know about the impending changes to FAA Order 8130.21H.  This is necessary because of the bilateral airworthiness agreements between the United States and its trading partners.  This notification process is part of the reason for the delay in the implementation of the new order.

Distributors will notice that paragraph 2-7 of the Order is almost hopelessly confusing.  This is because the FAA has mixed the issue of a new supplemental 8130-3 (which is one way to split a bulk shipment) with the simple copying of the original 8130-3 (which is a different way to split a bulk shipment).  These are two different functions – one requires a FAA designee to issue a new 8130-3 reflecting the new amount, while the other relies on a record keeping system to track the parts from an 8130-3 that reflected a lot (or other group) of parts.  The guidance in this paragraph is poorly written, and the conflation of two different functions in a single paragraph is likely to cause confusion.  We plan to work with the FAA on this issue.

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