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Government Shutdown Ends For Three Weeks – Work with the Local FAA NOW

The Government is reopening, but it may not be reopening for long.

The President announced this afternoon that he had struck a deal to reopen the government. The deal will reopen the government for three weeks – through February 15 according to the President’s remarks this afternoon.

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 many manufacturers, this may mean trying to fast-track PMA applications that have been languishing during the shutdown.  An extended shutdown could jeopardize your efforts to bring safety improvements to market, so you may want to work with the FAA on emergency planning, including expanded designee privileges in the event of a subsequent lapse in FAA funding.

Many companies require notification to, or acquiescence of, the FAA in order to make certain changes to their production quality systems or to their designs.  MIDOs seemed to be deemed ‘essential’ so production system changes are probably protected, but a manufacturer should seek enhanced minor change authority if minor design changes require FAA approval or acquiescence under your written system.

If you do not have a robust understanding concerning designee-usage, then now would be the time to discuss such usage with the local FAA office.

Designees should make sure their own privileges are protected.  They should ensure that their privileges are renewed during this three week window, if they have expired or are expected to expire soon.  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 and certification services in the event of a subsequent government funding lapse.

Industry 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;
  • permission for the designee to issue certain PMAs during a shutdown following a full showing of compliance (pursuant to 49 U.S.C. 44702(d)(1)(B)).
  • 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.
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About Jason Dickstein

Mr. Dickstein is the President of the Washington Aviation Group, a Washington, DC-based aviation law firm. He represents several aviation trade associations, including the Aviation Suppliers Association, the Aircraft Electronics Association, the Air Carrier Purchasing Conference, and the Modification and Replacement Parts Association. He also represents private clients drawn from the spectrum of the aviation industry.

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