April 24, 2003 (BY COURIER)


Department of Transportation
Office of the Senior Procurement Executive
Attn: Hayward Lawson
400 7th Street, SW
Room 7101
Washington, DC 20590

Dear Mr. Lawson:

This letter appeals, pursuant to Section 3(e) of the FAIR Act, the FAA�s Decision, dated April 10, 2003 (appended hereto), to deny NAATS� challenge to the Department of Transportation�s listing of the activities performed by the Flight Service Specialists (activity code T826F) in its 2002 inventory of commercial activities. A copy of that Challenge is also appended.

The FAA�s Decision is disingenuous inasmuch as it is based on ad hoc definitions and unsupported assumptions in order to bootstrap a desired outcome. Further, the decision is non-responsive to the points raised by NAATS in its Challenge.

Throughout its Decision, the FAA continually refers to NAATS� bargaining unit members as "flight service specialists" when they are in fact, and in the eyes of the law, "air traffic controllers." See 5 U.S.C. � 2109, and 5 C.F.R. � 842.802. By nomenclature, alone, the FAA is obviously attempting to create an artificial divide between "tower" and "en route" controllers, and "flight service" controllers, and then to isolate the latter group and qualify it for A76 commercialization after unequivocally promising Congress: "air traffic control will not be privatized."

While FAA personnel should be familiar with the various responsibilities of each of these three different types of controllers, we assume that those Departmental personnel responsible for resolving this appeal are less familiar; yet, familiarity is, we submit, critical to the decisional process. Hence, before analyzing and demonstrating the incorrect assumptions and flawed conclusions of the FAA Decision, we will briefly describe the job responsibilities of Flight Service Controllers whom the Agency has identified for privatization.

The FAA's own web site contains an abbreviated, generic description of the "2152 Job Series" broken down by the three different Air Traffic Control options (Tower, Center, and Flight Service). Attachment # 1. The common denominator is a description of the air traffic control system as a network of people and equipment interfaced to ensure the safe, orderly and expeditious flow of Air Traffic.

The basic qualifications to work in each of the three "options" are the same. Everyone must pass a physical. Everyone is subject to the same drug testing. They are all covered by the Air Traffic Revitalization Act and early retirement laws. Everyone undergoes similar training at the FAA's school in Oklahoma City.

As is explained below, controllers in all three options coordinate with one another and jointly handle many situations. Simply stated, Air Traffic Control is a seamless, integrated chain, and if any link should break, air safety would be compromised. Flight Service is an essential link in that chain. See Attachment # 2, 11/5/01 Peacock letter.

Tower Controllers have primary responsibility for the flow of aircraft in and out of airport airspace. They work primarily by sight. However, this option also includes radar approach controllers working in TRACON facilities often, but not always, located in close proximity to a tower. There are roughly 185 of these "Tower, Radar, Approach, Control" or TRACON facilities throughout the Nation. Once an aircraft takes off, it is usually "handed off" a few miles out by a Tower Controller to an En Route Controllers located in a Center.

En Route Center Controllers work in 22 facilities scattered around the country. These Controllers use radar as their primary tool. Each Center is responsible for the airspace over a particular portion of the country, and this airspace is subdivided and assigned to different Controllers within each Center. They handle airborne traffic generally flying at relatively high altitudes under Instrument Flight Rules (IFR) along designated air route corridors that resemble a three-dimensional interstate highway map. Radar technology and computer programs assist these Controllers in maintaining aircraft separation along routes and at different altitudes.

In a nutshell, both Tower and Center Controllers keep planes from bumping into each other. The FAA describes this function as "separation and control of live aircraft." To accomplish this task, they have cryptic conversations with professional pilots: "Flight 1010, you are cleared for takeoff," or "you are cleared to climb to 36,000 feet," or "to alter heading to 315 degrees." They deal almost entirely with very sophisticated pilots. Except for the differing volume of traffic at different airports, e.g., Atlanta versus Boise, this linear air traffic control process does not include a lot of variables or unexpected events.

But, there is another entire world of pilots and aircraft out there whose safety is also the responsibility of the FAA. Which brings us to --

Flight Service Controllers work at 61 Automated Flight Service Stations and 14 non-automated stations throughout the country, Alaska and Hawaii. They do everything else done by Air Traffic that is not done by Tower and Center Controllers. FS Controllers provide a wide range of information and briefings to pilots, both commercial and general aviation. This information includes weather conditions along the pilot's flight plan, descriptions of airports, their characteristics, facilities, and services, possibly including surrounding terrain (rivers, highways, ball parks, smoke stacks), and critical NOTAM advisories (Notices to Airmen: these are directives that may include curfews, no-fly zones over nuclear power plants, most of Washington, DC, military and other security sensitive facilities.)

While most commercial carriers have their own flight centers that, for example, calculate aircraft weight and fuel requirements, and that also develop and electronically file flight plans for their pilots, the rest of the flying world, namely, general aviation pilots, whether flying a corporate jet, air taxi, or single engine Cessna, file their flight plans if they are flying IFR (under instrument flight rules) or VFR (under visual flight rules) with a Flight Service Controller. This is usually done via a telephone or radio conversation during which the pilot requests and receives pre-flight weather information, discusses various alternative routes in order to avoid adverse weather, airspace or terrain restrictions, and possibly en route airports appropriate for their aircraft where they may wish to stop or refuel. Often times, the FS Controller will design a pilot's entire flight plan for him, including airways to fly, the navigational aids to use, and even projected fuel consumption. Even where the FS Controller is not solely responsible for developing the flight plan, it is still a collaborative process that involves both the pilot and the Flight Service Controller. And if the Controller fails to provide critical information, or provides incorrect information when assisting in the development and filing of flight plans, the FAA is liable for any adverse consequences.

Flight Service Controllers also serve as the FAA's meteorologists. They are highly trained in, and are primarily responsible for, the Agency's analysis and dissemination of weather information to anyone needing it, both commercial and general aviation pilots. Of course, weather is a far more critical safety consideration for smaller, general aviation aircraft, than it is for big, rugged commercial jets. What one aircraft can easily tolerate can cause another to crash -- e.g., icing conditions. Although the pilot is ultimately responsible for deciding when, or in what conditions to fly his particular aircraft, Flight Service Controllers regularly make recommendations based on their extensive knowledge of the capabilities of every different kind of aircraft, their sense of the pilot's experience, and the en route weather conditions.

Another major area of responsibility of Flight Service Controllers is providing assistance to pilots in all sorts of emergency situations as well as for initiating and coordinating search and rescue activities for overdue aircraft, and for missing aircraft involved in accidents. They must initiate and then coordinate a search, calling upon a range of resources that may include personnel at a substantial number of airports, law enforcement and sometimes military personnel, and the coast guard.

Another critical responsibility of Flight Service that requires the rapid exercise of subjective judgment is aiding lost aircraft, namely, pilots aloft and in distress. It is not uncommon for a pilot, particularly those who are not instrumented rated and are flying VFR (visual flight rules), to become disoriented or lost while in the air; or they may encounter severe weather, or be on the verge of running out of fuel. Pilots who encounter such emergencies are all trained to contact Flight Service for immediate assistance. Obviously, if a "lost aircraft" has a transponder and can be located by radar monitored either by a Center or Tower Controller, that Controller will advise him. But, more often than not, the pilot is flying a small aircraft at low altitudes (i.e., under radar visibility) and it is the Flight Service Controller who is responsible for finding him, a tricky process involving the intersection of vectors from navigational beacons, or helping him to find himself by identifying visible landmarks with which the Controller must be familiar, whether specific mountain formations, rivers, highways, railroad lines, bridges, smokestacks, etc, and then putting him back on course or guiding him to a safe landing strip that the Controller knows can accommodate the particular aircraft. The same is true for pilots who are running out of fuel. While Flight Service Controllers comprise only 11% of all Air Traffic Controllers, between 1998-2000, they handled 26% of all "lost aircraft saves."

As NTSB statistics confirm, there are far more accidents and fatalities in general aviation than in commercial, passenger aviation. See Attachment # 3. Protecting life and property in this area of aviation is absolutely critical to the FAA�s fulfillment of its core mission.

While Tower Controllers are expected to be familiar with navigational aids and terrain within the immediate vicinity of their home airport, Flight Service Controllers must possess detailed knowledge of topography and the characteristics and capabilities of every airport (public and private) within a radius of several hundred miles, along with the navigational aids within that area. For example, there are a total of 107 public-use airports and airfields located within the area (Virginia, Maryland, and DC) for which the Leesburg Automated Flight Service Station is responsible.

Other responsibilities of FS Controllers include:

Relaying information concerning all foreign passenger aircraft entering U.S. airspace to the Customs Service. Interfacing with the NORAD Air Defense Command at our Stations adjacent to our Nations' borders to track border-crossing aircraft -- for National Security reasons and smuggling prevention. Notifying military facilities that do not have their own air traffic controllers concerning inbound aircraft. This includes, for example, the helicopters which routinely fly military brass to and from the Pentagon.

Suffice it to say, the job of the Flight Service Controller is wide ranging in scope and constantly changing in unpredictable ways; it requires the mastery of, and ability to recall instantly a vast body of information; and it requires excellent communication skills, and to exercise sound judgment in a wide variety of stressful, emergency situations. They must deal with pilots of vastly varying knowledge and experience and be able quickly to assess a pilot�s capabilities, as well as the capabilities of the wide range of aircraft flown by the general aviation community.

Just a year ago, the Agency described the critical role flight service controllers play in this Nation�s Air Traffic System as follows:
Air traffic control specialists (ATCS) have three certification options: flight service, terminal, and en route. The criticality to the National Airspace System (NAS) of ATCSs serving in the Flight Service Option has become increasingly apparent in the wake of the September 11 events. While Flight Service ATCSs do not control air traffic, they provide critical support to the control of air traffic. In addition to relaying aeronautical and weather information to pilots, they provide vital explanations and instruction on the aeronautical, weather, and other critical NAS information. Explanations of airspace restrictions provided by AFSS ATCSs enable two-way exchanges to ensure better understanding by pilots. Pilots on the ground at untowered airfields often rely on flight service station (FSS) or AFSS specialists as the sole means to obtain air traffic control (ATC) clearances. Pilots needing to air-file an instrument flight plan file with an AFSS ATCS, thereby relieving terminal/center controllers from this duty.

Attachment # 4, Nov 27, 2001 ATS-1 Memorandum.

While the foregoing discussion has only scratched the surface of the Flight Service Controller function, we submit that it should give pause to anyone inclined to remove it from the "inherently governmental" category, and toss it into a common "commercial" category.

Turning to the many inconsistencies in the FAA�s Decision to reject NAATS� FAIR Act Challenge are the following, identified by subject matter and the page where they are discussed:

Page 1 -- Inherently Governmental

The Decision is contradictory in stating that the FAIR Act, in Section 5(2), "defines inherently governmental functions involve, among other things, those matters identified in (2)(B)" which lists those functions that are inherently governmental. Included are functions which "significantly affect the life, liberty, or property of private persons." Pub. L. 105-270, Section 2(b)(iii). The FAA's core mission is, in fact, an inherently governmental function. Specifically, protecting the life, security and property of persons flying in the Nation's airspace, and those on the ground who could be injured by a crash, is the FAA's core mission. The FSS air traffic controllers directly carry out that core mission. Thus, the FSS air traffic controllers are performing an inherently governmental function under the terms of the statute. Yet, the FAA�s Decision later states that "activities that directly pertain to (an agency�s) function or mission do not equate to activities that are inherently governmental".

Page 2 -- Discretion and Judgment

The Decision states that flight service specialists (sic) do not exercise discretion and judgment. In the same paragraph the Decision contradicts itself again by stating FSS air traffic controllers "..exercise their best judgment if they encounter situations that are not covered".

Actually FAA Order 7110.10 makes several references to FSS air traffic controllers using their best judgment, e.g.

C Chapter 3 Section 2 3-2-1(a) Conduct of Standard Briefing;
C Chapter 3, Section 2, 3-2-1(b)(2) VFR Flight Not Recommended;
C Chapter 5, 5-1-1(a) Emergency Determination.

Page 2 -- Executing Administrator�s Decisions

The Decision states "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". Since responsibility cannot be delegated, this statement would logically mean that only the FAA Administrator�s functions are inherently governmental; all other FAA employees must then be listed as commercial, including the Assistant Administrator for Financial Services and Chief Financial Officer. Obviously this is not the intent of Circular A76 and the FAA position must be rejected. Moreover, the FAIR Act and the Circular include as inherently governmental functions not only policy decisions and rulemaking, but also those directly involved with carrying out the agency�s core mission, as explained above. Certain federal agencies have an actual public service (vs. administrative) function that is their core mission, and the FAA is one such agency. Clearly, FSS air traffic controllers are central to the FAA�s core mission of maintaining the safety and security of the Nation�s airspace. They are analogous to soldiers and the DoD.

Page 3 -- Binding the United States

The Decision states, "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". Even if one accepts this ad hoc definition, it does not negate the fact that FSS air traffic controllers, in the performance of their duties, frequently bind the United States as documented in the Challenge.

Page 3 -- Restricted Airspace

The Decision does not accurately describe or take into account the nature of FSS air traffic controller duties and how they relate to restricted, prohibited and special use airspace. Enforcing restricted, prohibited and special use airspace, along with temporary flight restrictions (TFRs) is a primary job responsibility for FSS air traffic controllers. This is particularly critical to aviation safety and homeland security in today�s national airspace system (NAS). FSS air traffic controllers are charged with responsibility for enforcing the TFRs and provide these services daily.

The Transportation Security Administration (TSA) requires Leesburg AFSS to provide flight planning and security clearances for all aircraft flying into and out of the FRZ Air Defense Identification Zone (ADIZ). Without this approval and clearance the pilots simply cannot fly. While FSS air traffic controllers are not armed, they participate directly in law enforcement activities insofar as they direct individual pilots away from airspace that is restricted for security reasons and assist pilots to develop and modify flight plans that will allow them to proceed both safely, and lawfully, to their destinations. In other words, they act as authorized officers of the U.S. Government. They do not simply relay information from the FAA to pilots. TSA requires that government employees, not private contractors, provide these services.

Page 3 -- Interaction with Law Enforcement

The Decision is non-responsive to the points made in the Challenge. In stating that these air traffic functions do not have to be performed by government employees the Decision engages in convoluted logic. The A76 test is not whether a job function could be performed by other than government employees; it�s whether the job function should be performed by government employees. The Customs, DEA, and Immigration agencies are all staffed by federal employees. It is far from clear that these agencies will agree to coordinate their law enforcement activities with an AFSS staffed by a private contractor.

Page 4 -- Industry Respondents

The Decision states that industry respondents noted, ".. their companies currently perform these types of activities both domestically and internationally". Indeed, the FAA has taken these selected industry responses on face value with no verification as to whether the statements are accurate or feasible. In fact, no company currently performs the myriad of controller duties FSS air traffic controllers routinely provide on a daily basis to the aviation industry. OMB acknowledges that the FSS controllers represent the most complex A76 study ever attempted.

The FAA�s venture in contracting out very low activity air traffic towers has proven to be highly controversial; and it is the subject of ongoing litigation. FSS controllers, by comparison, provide significantly more diverse and complex services that are integrally entwined with law enforcement and that require the exercise of considerable judgment and discretion. Errors of judgment can not only endanger life and property (and potentially national security), they can create and impose very significant liability on the federal government and taxpayer. AFSS is simply not a service or function to be delegated to some private contractor

For the foregoing reasons, we respectfully submit that the FAA has erred when determining that Flight Service Controllers perform only a routine administrative, rather than inherently governmental function, when rendering its Decision to deny our Challenge.

Respectfully submitted,




Walter W. Pike
President

Enclosures