FAA Guidance on Approval for Return to Service (Right-Side-Signed 8130-3 Tags) – Comment Period Extended

March 7, 2017 by Leave a comment

The FAA has issued a draft guidance document for 8130-3 tags when the tags are completed as Approvals for Return to Service (ARTS).

The draft guidance is currently known as AC 43-ARTS, Use of FAA Form 8130-3 for Approval for Return to Service Under Part 43, and can be found online at

https://www.faa.gov/aircraft/draft_docs/media/afs/AC-43-ARTS_Coord_Copy.pdf.

The draft guidance may impose new standards with inadequate regulatory basis.

The purpose of the new guidance is to provide guidance for compliance with the approval for return to service requirements found in part 43; but it seems to impose new requirements that are not found in Part 43.  The draft guidance also suggests that one may not use an 8130-3 tag as the ARTS unless the person follows the AC; this would make the AC a de facto regulatory requirement in light of the strong emphasis that the FAA has placed on the use of the 8130-3 tag as the norm for approval for return to service.

The draft guidance also requires following the standards published in AC 120-78 as a condition of being permitted to use electronic 8130-3 tags.  This mandate contradicts AC 120-78 which made those standards voluntary/advisory.

Comments were previously due on March 13.  ASA joined with several other trade associations to request an extension, and now the comment period has been extended to June 12, 2017.

The draft advisory circular is available for review online at https://www.faa.gov/aircraft/draft_docs/media/afs/AC_43-ARTS_Coord_Copy.pdf.  Comments should be submitted by email to Griffin.CTR.Moar@FAA.gov.  Please send a copy of your comments to ASA so we can be sure to echo our members’ concerns.

Filed under Uncategorized Tagged with , , , , , ,

FAA Confirms that Manufacturing DARs May Continue to Issue 8130-3 Tags

June 11, 2012 by Leave a comment

Today, the FAA released a memo that confirms that Manufacturing DARs continue to have the authority to issue 8130-3 tags (the memo was dated May 31).  This has been a source of concern for many DARs and the distributors that rely on them.  The memo corrects the concern.  The speed with which the FAA corrected this issue shows that FAA headquarters is listening to our industry’s concerns and is supporting the industry’s safety needs.

Earlier this year, ASA made the FAA aware of an issue concerning the recent changes to FAA Order 8100.8 (the “D” revision).  There was an unanticipated omission of the language that authorized Manufacturing DARs to issue 8130-3 tags for demonstrably airworthy components held by distributors.  The new language limited Manufacturing DARs to only working for production approval holders.

ASA asked for a deviation memo to confirm that this change was an inadvertent error.

The new (erroneous) language created a disconnect in the regulations – there was a privilege that persons enjoy under the regulations (obtaining 8130-3 tags when authorized) that would not be supported by the FAA in certain places if Manufacturing DARs were precluded from issuing 8130-3 tags for demonstrably airworthy parts.

14 C.F.R. § 21.327 permits “any person” to apply for an airworthiness approval.  Failure to correct the new language in 8100.8D would mean that Manufacturing DARs are precluded from supporting the “any person” language of 21.327.  FAA operational norms preclude FAA employees from being available to issue airworthiness approvals for parts in most cases.  Thus, a failure to correct this language would mean that in locations that previously relied on Manufacturing DARs to issue 8130-3 tags, the FAA would be unable to meet its 21.327 obligations unless it allocated resources in FAA offices to being able to issue airworthiness approvals to applicants.

ASA argued that it is in the FAA’s and industry’s best interests to extend the practice of permitting Manufacturing DARs to issue 8130-3 tags for demonstrably airworthy parts held in a distributor’s inventory.

ASA also pointed out the historical context of the privilege.  Over the past decade, the FAA has established policies that permit Manufacturing DARs and Maintenance DARs 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 Manufacturing DARs and function code 23 for Maintenance DARs.[1]  Although Manufacturing DAR functions are normally limited to PAH facilities, the FAA made a special exception that permitted Manufacturing DARs 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 Manufacturing DARs 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 Manufacturing DARs and function code 32 for Maintenance DARs (these function codes had previously been limited only to export tag privileges).

The new memo returns the industry to the course that the FAA had charted.  It explains that the change in Order 8100.8 was inadvertent and that there was not an intent to preclude distributors.  It explicitly permits Manufacturing DARs to exercise their 8130-3 issuance privileges for any applicant, including a distributor.  The new deviation memo will soon be available on the ASA website.

[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”).

Filed under Uncategorized Tagged with , , , , , , , ,

Policy Glitch Inhibits Manufacturing DARs from Issuing 8130-3 Tags

March 29, 2012 by Leave a comment

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).

Filed under Uncategorized Tagged with , , , , , , , , ,

Some FAA DARs Told to Require Back-to-Birth as an 8130-3 Tag Prerequisite?

August 25, 2011 by Leave a comment

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.

Filed under Uncategorized Tagged with , , , , , , , ,