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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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.

ASA Praises FAA as 3000 Employees Return to Work, Despite Shutdown

The FAA is bringing almost three thousand more inspectors to work during the partial government shutdown.

Numerous organizations have raised concerns about the aviation safety effects of the funding lapse; ASA joined with several other trade associations to send a joint letter to Congress and the White house expressing our concerns.

The Department of Transportation had previously published a shutdown plan that called for the FAA to retain 27,138 unpaid workers and to furlough 17,791 (FAA has a total of 44,929 employees).  Only 216 of those employees were from the Office of Aviation Safety.  The new plan increases this number of personnel to 3113 – so the FAA will recall an additional 2897 employees to work within the Office of Aviation Safety.

The returning staff are expected to be back at work by Friday, January 18th.  This should include many of the Flight Standards Service inspector staff.  Some designated airworthiness representatives holding flight standards privileges (DAR-Ts) have expressed concerns over renewal of their privileges.  This ought to return personnel who can renew those privileges.  But it is uncertain whether appropriate aircraft certification personnel will return and be able to renew DAR-F privileges.

These employees will work without pay until the lapse in funding has ended (but their back-pay has been guaranteed by a bi-partisan bill in Congress, pending the President’s signature on the back-pay bill). Although ASA empathizes with the staff whose pay will be delayed (possibly for a long time), ASA is also proud of the dedication being shown by those who return to their jobs to protect safety.

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:

Exporting During the Shutdown

The Federal Government continues to be shut down while our elected officials debate how to tackle our nation’s debt.  This has the potential to adversely affect exports, so it is important to have strategies for ensuring you can export in the absence of new licenses.

As a result of the shutdown, the Department of Commerce Bureau of Industry and Security (BIS) is no longer accepting export license applications.  All pending export license applications are being held without action by BIS until the shutdown ends.  This can have a significant effect on some distributors who need export licenses in order to support their customer base.

If you are an applicant who needs a license for national security reasons, then you can request emergency processing of your export license application by submitting an email request to Deputy Assistant Secretary for Export Administration Matthew Borman at Matthew.Borman@bis.doc.gov; however most civil aviation export licenses are not related to national security.

So what can you do to support a non-US customer need for parts that does NOT have national security implications, but that would ordinarily require a license?

The best way to approach the transaction is to think about how to structure it to make use of a license exception.  There are a number of license exceptions that can apply to common aircraft parts transactions, including the Replacement Parts/Servicing and Replacement Exception [RPL] (15 C.F.R. 740.10) and the Aircraft and Vessel Exception [AVS] (15 C.F.R. 740.15).  We’ve covered the use of these exceptions in ASA Workshops and during the ASA Annual Conference, but if you’ve missed the presentations, then we ordinarily advise potential exception-users to read the regulatory language carefully before using the exceptions.  Make sure that you can meet each and every requirement for the use of the exceptions.

For example, use of the AVS exception is often limited based on details related to the aircraft on which the part is expected to be installed. If the aircraft on which the part is to be installed is identified, then you should collect the following information:

  • The country in which the aircraft is located, and
  • The country in which the aircraft is registered, or will be registered in the case of an aircraft being manufactured, and
  • The country of citizenship of whoever currently owns, controls, leases, and/or charters the aircraft (more the one country may be implicated by this analysis).

These data will serve as an important foundation for the analysis implied by the requirements for the AVS exception.

If no exception would apply to your transaction, then another option might be to find someone with an existing license that will permit the export of your article, and include that party in your transaction as the exporter of record.  While you cannot use a third party exporter for purposes that circumvent the law (for example, a Denied Party cannot use a third party to circumvent their Denied Party status), it is permissible to sell the parts to an intermediary and have the intermediary export to your customer under the intermediary’s existing (applicable) license, as long as it is not for the purpose of circumventing legal prohibitions that would have prohibited you from getting a license.  The danger of this advice is that an intermediary who is also a copmetitor may use this as an opportunity to steal customers, so be careful to only deal with an intermediary whose business ethics are trustworthy.

Once you are in a position to be able export, you may run into some problems in assembling the data that you need to complete the electronic export information requirements on AESDIrect.  For example, the the Schedule B search engine on http://www.census.gov is not available. During this time you may use the following alternate address to identify schedule B numbers: https://uscensus.prod.3ceonline.com/.

As always, the Washington Aviation Group continues to provide export advice.  So if you need to get really creative, please give the Washington Aviation Group a call and let them work with you to find a solution.

Another issue that is facing the industry is the new release of the 600-series ECCNs that becomes effective tomorrow (to facilitate the movement of certain articles from the US Munitions List (USML) to the Commerce Control Lists (CCLs).  We will talk about that in tomorrow’s blog post.

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