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U.S. Department of Transportation Federal Aviation Administration |
Assistant Administrator for Financial Services and Chief Financial Officer
April 10, 2003 |
800 Independence Ave Washington, DC 20591 |
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Mr. Walter W. Pike Re: Fair Act Challenge Dear Mr. Pike: The Department of Transportation included activities performed by Flight Service Specialists (listed as activity code T826F) in its 2002 inventory of commercial activities. The Inventory is required by the Federal Activities Inventory Reform (FAIR) Act (the Act). On March 4, the national Association of Air Traffic Specialists (NAATS) challenged that decision. This letter transmits our decision to that challenge under section 3(d) of the Act. The Associate Administrator for Air Traffic Services (ATS) submitted a statement in response to the instant challenge, addressing the rationale for reporting certain T826F activities as commercial. That statement is attached to this letter. After considering both the challenge as well as the ATS statement, it is my decision that the activities represented on the inventory under function code T826F are properly listed. The starting point for the analysis is the FAIR Act itself. Section 5(2)(A) defines an "inherently governmental function" as one that "is so intimately related to the public interest as to require performance by Federal Government employees". Subsection (2)(B) states that such functions include activities that "require either the exercise of discretion in applying Federal Government authority or the making of value judgments in making decisions for the Federal Government." It further states that such a function involves, among other things,
In the Challenge, NAATS equates "activities that directly pertain to (an agency's) function or mission" with activities that are inherently governmental. Neither the FAIR Act, Circular A-76, OFPP Policy Letter 92-1, or other guidance supports such a position, nor has the challenge highlighted such support. Activities directly in support of agency missions are not necessarily so "intimately related to the public interest" as to mandate performance by government employees. Appendix B to the Policy Letter lists many commercial activities that directly relate to the FAA's missions. These activities, however, do not have to be performed by government employees. These include services relating to budget preparation, writing regulations, inspections, and, notably, non-law enforcement activities. Thus, activities in support of an agency's mission, including the activities under review, do not become inherently governmental activities. In addition, although the activities performed at flight service stations are a component of FAA's safety and security mission, they are not necessarily a core component. As 49 USC 40101 (d) directs, the safety and security of the national airspace system is FAA's core mission. The means by which the Administrator executes that responsibility is left to the Administrator's discretion. The services provided by FSS specialists are essential to maintaining and enhancing aviation safety and security. More specifically, specialists perform many varied functions in their day-to-day operations, all with a degree of discretion and judgment required to adapt to the situation at hand. However, the specialists' discretion and judgment is guided by the myriad of Federal regulations, FAA Orders, rules and procedures surrounding and defining the actions and authority of the specialist. For instance FAA Order 7110.10P, Flight Services, "prescribes procedures and phraseology for use by air traffic personnel providing flight services. Flight service specialists are required to be familiar with the provisions of this order that pertain to their operational responsibilities and to exercise their best judgment if they encounter situations that are not covered." This Order, specifically applicable to FSS specialists, directs not only the procedures to be used by the specialist but also the phraseology, in all but the most extraordinary circumstances (those not covered by the Order's 14 chapters (plus appendices)). It is the approval and issuance of those regulations, Orders, rules and procedures that, in part, encompass the Administrator's core and inherently governmental responsibilities, not who follows or executes that guidance. The Challenge claims FSS Specialist activities meet FAIR Act definition of "inherently governmental" by addressing three of the four subsections within the definition. As an initial matter, not all T826F activities are commercial. The agency listed both commercial and inherently governmental activities under this function code. In its statement, ATS noted the activities under T826F it had categorized as inherently governmental. Quality assurance and NOTAM D functions are included in that category, with the rest of the T826F activities being categorized as commercial. According to FAA Order 7930.2, a NOTAM (L) contains
This Order directs a treatment for obtaining, classifying, and formatting a NOTAM (D) that is markedly different than that required for a NOTAM (L). A NOTAM (D) conveys information that has a significant impact to the operation of the National Airspace System; a NOTAM (L) does not. ATS appropriately categorized NOTAM (D) activities as inherently governmental. The Challenge first claims FSS specialist activities somehow bind "the United States to take of not to take some action". The Challenge misconstrues the nature of the subsection. "Binding the United States" constitutes a choice on the part of the actor from two or more viable and perhaps equally justified possibilities, either of which commits the United States to a course of action. The issuance of Federal regulations is a notable example, as is determining licensing criteria. Circular A-76 refers to such activities as the discretionary exercise of Government authority. The discretion of the FSS specialist does not extend to binding the Government to one of many alternatives; FSS specialist discretion is operating within parameters pre-established for this purpose. The Challenge uses as an example what would happen if the specialist did not comply with existing Orders (failing to notify customs/immigration). Examining what would occur if one did not do his or her job is not the test; the analysis is whether the actions bind the Government. The Challenge also notes the specialist "keep[s] pilots out of any restricted airspace..." The Challenge provides no support for such a broad claim. Specialists can advise pilots of any active temporary flight restrictions and notify appropriate authorities if they are aware of violations, but do not have the authority to keep the pilot out of restricted airspace. The Challenge also raises the specialists' interaction with law-enforcement and military entities as justification for its position. This justification is unpersuasive. Specialists can identify a suspicious aircraft and convey the information on to the appropriate officials. Specialists can then monitor the situation and provide whatever assistance is available and requested. This assistance is bound and directed by the above-mentioned regulations, Orders, rules and procedures already in place. In the Attachment to the Challenge, NAATS raises, among other matters, certain data input and transmission functions of the specialist as justifying its position. See Attachment 1, Nos. 2,3, and 4. Data input and (re)transmission, under existing guidelines as listed above, does not have to be done by Government employees. The fact that specialists possess confidential, non-public information does not affect this analysis. Many contractors work with such information everyday. Their contracts include mechanisms to ensure the confidentiality and security of this non-public information. Law enforcement, customs or the military may well use the information relayed to them by flight service station specialists to perform an inherently governmental activity, such as arrest a pilot or impound an aircraft. But this subsequently inherently governmental activity does not convert the preceding relaying of information into an inherently governmental act. Law enforcement and others described rely on a variety of public and private sources of information. The fact specialists perform a significant role in safety and security is not in question. The question is whether the services under analysis must be performed by government employees. Another test for whether an activity is commercial is whether the same or similar services are performed by the private sector. In the report referenced in the statement submitted by ATS, industry respondents noted their companies currently perform these types of activities both domestically and internationally. For the above reasons, I find the activities represented by the function code T826F and listed as commercial in the Inventory are properly listed. Under Section 3(e) of the FAIR Act, NAATS has the right to appeal this decision. You must deliver the appeal, in writing, to the DOT Appeals Authority Address identified at http://www.dot.gov/ost/m60/fairact/index #addressappeals within ten working days after you get this decision. In addition to providing reasons why you are appealing the decision, your appeal package must include a copy of the challenge and a copy of this decision. Sincerely,
John F. Hennigan Attachments |
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