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).

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Government to Reopen Temporarily; Get Your FAA Services in Order NOW!

The President announced this afternoon that he had struck a deal to reopen the government.  The deal will reopen the government for three weeks.

During his announcement, the President made it clear that “we really have no choice but to build a powerful wall or steel barrier.”  He made it clear that the government will shut down on February 15 if he does not get the funding that he desires for this project.

The President suggested, optionally, that he may declare state of emergency; but we still have to see any legal scholar suggest a way that either Title 6 (Domestic Security, including FEMA’s laws) or Title 50 (National Emergencies and International Emergency Economic Powers) permits the President to order unappropriated spending on capital projects.  If the President can’t find a legal way to circumvent the Constitutional requirement for appropriations, then the emergency declaration gambit may ring hollow – which means that we should anticipate the possibility of another government shutdown on February 15.

Because this agreement is only for three weeks, the industry should focus its attention on the US government and on services that are necessary.  For example, designees should ensure that their privileges are renewed during this window. Designees are an important part of the safety assurance process in our industry, so we should prioritize efforts to ensure that they can provide safety-related approval andcertification services in the event of a subsequent government funding lapse.

Designees may want to work with their FAA-Advisors to seek ’emergency clause’ authority, in which any extended government shutdown would enable emergency procedures.  Such emergency procedures could include:

  • where project-level permissions are typically required, the designee would have temporary permission to provide approvals or other support within certain pre-described parameters
  • permission for the designee to engage in normal (pre-defined) activities during the shutdown;
  • tolling of any expiration of authority that occurs during the shutdown period until a reasonable time after the lapse in funding is remedied (privileges should continue at the level immediately before the shutdown);
  • an obligation for the designee to make a full accounting to the FAA Advisor of any emergency authorities used, so the FAA Advisor can engage in appropriate post-shutdown oversight; and,
  • any other provisions that the designee and FAA-Advisor agree are reasonably necessary to protect safety in the event of a lapse in government funding.

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.

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