The Federal Aviation Administration (FAA) is the primary agency responsible for the safe and efficient use of the national airspace. In carrying out its vital aviation safety mission, the FAA maintains a complex, interrelated system of oversight, approvals, reviews, and renewals that allow an integrated network of regulated individuals, air carriers, and others to continue safe operations in the airspace.
It is appropriate and lawful for the FAA to perform many of these safety-related functions notwithstanding a lapse in appropriations, because their continuation is justified to maintain the safety of life and protection of property, as provided by the Anti-Deficiency Act (ADA), 31 U.S.C. § 1342. For example, during lapses in appropriations, the FAA has always maintained its air traffic control functions, and when a lapse extends beyond a few days, the FAA’s risk-based safety oversight of the aviation industry requires the resumption of additional functions.
During an extended lapse, the FAA continually reevaluates the scope of functions that are designated as “excepted” and appropriate to be maintained during the lapse for the protection of life and property. In the midst of the recently concluded lapse, on January 14, 2019, the FAA posted an amended shutdown plan to add the following four categories of functions to those previously designated as “excepted”:
- Airmen medical certifications.
- Certain evaluations, audits, inspections, and other safety certification activities, including the issuance of airworthiness certificates required for the delivery of new and modified airplanes and airplane components and certifications for the operation of new or modified aircraft.
- Processing and approval of applications for commercial space launch and reentry licenses, in addition to the safety oversight of previously licensed commercial space launches.
- Processing and approval of requests for waivers for commercial use of unmanned aircraft systems.
Following amendment of the shutdown plan, the FAA began to recall furloughed employees through a series of recalls, as necessary to carry out these additional excepted functions.
The January 14 amendments to the FAA’s shutdown plan were reviewed and approved within the Executive Branch in accordance with established policies that apply during lapses in appropriations. The FAA’s actions in carrying out the amended plan were fully consistent with the longstanding guidance of the Office of Management and Budget (OMB) and the Office of Legal Counsel (OLC) of the U.S. Department of Justice. See OMB Mem. M-18-05, Planning for Agency Operations during a Potential Lapse in Appropriations (Jan. 19, 2018); Government Operations in the Event of a Lapse in Appropriations, Supp. Op. O.L.C. (Aug. 16, 1995), https://www.justice.gov/opinion/file/ 844116/download (“1995 OLC Opinion”). They were supported by a straightforward extension of OLC’s past guidance concerning the FAA’s safety-related responsibilities over the operation of the national airspace.
The 1995 OLC Opinion recognized that it is appropriate for the FAA to continue its air traffic control functions during a lapse under the ADA’s exception for activities needed to protect the safety of life and property. See id. at 5. OLC observed that “the practice of past administrations has been to assume the continued operation of the private economy [during the lapse], and so air traffic controllers, meat inspectors, and other similarly situated personnel have been considered to be within the emergency exception of section 1342.” Id.
Today’s private economy includes not only the operation of existing airplanes in the air traffic control system, but also the bringing of new aircraft into service, the updating of aviation equipment, the medical certification of airmen, the safe operation of unmanned aircraft systems, and the safe conduct of commercial space launches and reentries. Under OLC’s guidance, these activities are assumed to continue during the lapse, and the FAA’s supervision is necessary to ensure that they occur in a way that will not cause an imminent threat to human life.
There is no doubt that the operation of today’s national airspace in the U.S., as compared to the system of even the relatively recent past, is more varied and challenging. The increasing use of unmanned aircraft systems and the increasing number of commercial space launches, for example, pose new complexities for the safe and efficient use of airspace. The scope of “excepted” activities required to ensure the continued safety of life and property in civil aviation in 2019 necessarily must cover the current national airspace system, not the system of the past. Furthermore, the length of the recent lapse in appropriations required the FAA to operate in an environment not experienced in prior lapses—one in which contingencies that were not expected at the outset of the lapse became increasingly likely as the lapse in appropriations continued.
Reflecting these differences, the FAA’s shutdown planning has evolved over time. Through 2009, the FAA designated its entire aviation inspection workforce as “excepted” and furloughed only a few of those inspectors. During the lapse in appropriations that occurred in 2013, on the other hand, the FAA initially furloughed a much greater portion of its aviation safety workforce, but eventually, as the lapse continued, the FAA recalled a large number of these employees. Most of the recalls of safety inspectors and other aviation safety employees conducted by the FAA in furtherance of the January 14 amendments were consistent with the recalls eventually made in 2013. Others reflected a new recognition that the national airspace of today is more complex than it once was.
These expanded recalls are to be expected, based on the FAA’s operational experience. The longer a lapse in appropriations continues, the more—not the fewer—FAA safety personnel are needed to maintain the safe operation of the national airspace. The longer the lapse, the greater the need for the FAA to manage risk by providing inspection, certification, and other services to aircraft, airmen, and air carriers. As the national airspace expands and evolves to encompass new aircraft, commercial space operations, and unmanned aircraft systems, the FAA’s operations must keep pace to ensure the continued safety of the system as a whole, and not just the system as it once existed.
With foresight and proper planning, the FAA took the right steps in full compliance with the law to ensure that the necessary personnel were on the job during the lapse to maintain the safe operation of America’s vital national airspace.
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