Do you rely on a Designated Engineering Representative (DER) to approve data for your business? Do you use DMIRs for issuing 8130-3 tags? If you do, then you know how critical designees can be to the parts approval process. 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). When this happens, the designee has no choice but to obey the instructions from the FAA-Advisor … even if they would be illegal if undertaken by the FAA’s employees.
Want to make sure that designees are not used to do things that FAA employees can’t do (by law)? The be sure to take the time to offer comments to the FAA Designee Management Policy that is now out for comment. 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. MARPA members should strongly consider reviewing and commenting on this draft guidance.
Comments are dues to the FAA by January 7. Please send comments to MARPA, as well, so we can sure that our comments reflect your concerns.
|How to Comment:||Deliver comments by mail or hand to:
1625 K Street NW
Washington DC, 20006Email comments to: Susan.firstname.lastname@example.org
Email CommentsFax comments to:
(202) 223-4615, Attn: Susan Hill
My comment on the cancellation of FAA Order 8100.8 failed to take into account FAA Notice 8000.372. That Notice directs all AIR manufacturing personnel who oversee designees to stop using Order 8100.8 and being using 8000.95 on a schedule. The schedule reflects the implementation of the Designee Management System (DMS) in those offices.
Under that schedule, all MIDOs with designee management responsibilities should have transitioned to Order 8000.95 during the summer (of 2014). So Order 8000.95 will have supplanted 8100.8 for MIDOS (but not necessarily for ACOs and FSDOs). This means that DMIRs and DAR-Fs have transitioned. But DERs should still be under 8100.8 until they are formally transitioned (at which time they will fall under the instructions of 8000.95).
Special thanks to William Denihan for pointing this out!