Formalizing ‘Inherently Governmental’ Status of Air Traffic Services
Issue: Air traffic services are intimately related to the public interest and significantly affect the life and properly of private persons. Therefore, these services must be recognized and appropriately categorized as inherently governmental functions according to standards put forth by the Office of Management and Budget (OMB). President Bush stripped air traffic services of its inherently governmental status by removing three words from an executive order in 2002. This action leaves air traffic services vulnerable to privatization and outsourcing efforts and threatens the safety of the flying public by entrusting this country’s aviation system to corporations focused on profit.
Background: The OMB defines an “inherently governmental function” as “a function that is so intimately related to the public interest as to mandate performance by Government employees.” The work performed by the highly skilled and dedicated employees at the FAA is no doubt a function intimately related to the public interest. The federal employees responsible for protecting this country’s aviation system work behind the scenes to ensure that the National Airspace System (NAS) remains safe and efficient. These employees include air traffic controllers who use their skills and judgment to safely direct the flow of this country’s air traffic, engineers who design new facilities, construct or remodel ATC facilities and replace aging NAS equipment, and systems specialists who install, maintain, repair and certify the systems that make up the NAS.
Since the safety of the aviation system is a clear governmental responsibility, the federal government was charged with maintaining control over air traffic services until this function was threatened in 2002 when President Bush made a change to an executive order issued by President Clinton in 2000. During his administration, Clinton formed the National Partnership on Reinventing Government, which sought to reduce government bureaucracy in order to improve efficiency and service. This initiative relied heavily on public-private partnerships and in some cases even outright privatization of previously governmental functions. Toward the end of his term in office, Clinton began to fear that his initiative might be exploited by successors with an ideological preference for privatization. He therefore sought to codify the inherently governmental nature of air traffic services in order to protect it from privatization efforts. On December 17, 2000, he issued Executive Order 13180 that, in addition to creating the Air Traffic Organization (ATO) division of the FAA, officially designated air traffic services as inherently governmental. In 2002, Bush issued Executive Order 13264, which amended Executive Order 13180 to remove the reference to “inherently governmental.” This action has resulted in putting at risk the safety-critical work performed by FAA employees and will continue to have the potential to threaten aviation safety until this step is reversed.
Impact on Air Traffic Controller Workforce: Following the issue of Executive Order 13180, approximately 20,000 air traffic control jobs were listed as commercially competitive in the 2002 Federal Activities Inventory Reform Act (FAIR Act) inventory. At that time, the positions were classified under Reason Code A, meaning that management had determined that, although commercial, these duties were not appropriate for private sector performance. However, reason codes are subject to changes in management’s opinion or policy with no outside oversight. The National Air Traffic Controllers Association (NATCA) feared that classification as commercial, regardless of reason code, was the first step in an effort to expand the privatization of air traffic control. As of the 2007 FAIR Act Inventory, 972 air traffic control jobs are classified as Reason Code B – suitable for private sector competition – and 2,703 have been outsourced to private companies, including all flight service station controllers in every location except Alaska. Another 18,703 air traffic controller full-time equivalents are classified as Reason Code A, which could be changed at the whim of the administrator or the competitive sourcing official. Furthermore, the FAA is undertaking a series of realignment initiatives designed to separate radar functions from their associated towers and combine them with Terminal Radar Approach Control (TRACON) functions at neighboring facilities while isolating the smaller towers. By separating and isolating these towers, the FAA is able to downgrade the facilities, reclassify them, and open them up to private sector competition more easily.
Air traffic control privatization experiments internationally should also serve as a warning to the United States. The Swiss’ SkyGuide, for example, was held criminally accountable for the deaths of 71 people in a midair collision in 2002 because their negligent cost-saving policies removed essential staffing redundancies. Additionally, the Australian Advanced Air Traffic System (TAAATS) and the National Air Traffic Services (NATS) of Great Britain have each experienced major technological failures and malfunctions which temporarily crippled air travel in those countries.
Impact on Systems Specialists Workforce: The Professional Aviation Safety Specialists (PASS) is extremely concerned that the work of FAA systems specialists has been targeted for outsourcing. One of the FAA’s more recent efforts involves making changes to its certification process. Certification is the process in which a certificated FAA systems specialist checks and tests systems or pieces of equipment on a periodic basis in order to ensure that the systems or equipment can be safely returned to service and not negatively impact any aspect of the NAS. According to a 1991 memo from the FAA’s general law branch, certification is an “inherently governmental function which cannot be performed by a contractor.”  The FAA’s certification process has been successful for over 30 years and is a key element in maintaining the safest and most efficient air transportation in the world.
Despite the importance of the certification process, the FAA has been methodically working toward eliminating certification from its maintenance philosophy. Outsourcing the maintenance of systems or equipment that are subject to FAA certification is not only a safety risk but is also extremely wasteful since the FAA’s own systems specialists must also be trained to perform the very same maintenance as that performed by the contractor. In other words, the FAA would be paying both a contractor and its own employee to perform the work. This also means that whenever a system comes out of service, it may be out of service twice as long so that both the contractor and the FAA employee can perform the same task. This is actually required by the agency’s own orders, which state that while maintenance of certifiable systems and equipment can be performed by anyone, if it is performed by a contractor, it must be repeated by an FAA systems specialist who is qualified to certify the system or service. According to the order, “Certification is a quality control method used by the ATO to ensure NAS facilities are providing their advertised service. The ATO employee’s independent discretionary judgment about the provision of advertised services, the need to separate profit motivations from operational decisions, and the desire to minimize liability, make the regulatory function of certification and oversight of the NAS an inherently governmental function." As such, since systems used to control air traffic must be certified, systems specialists must be trained, which means that there are no cost savings associated with contracting for maintenance. This makes it inefficient and potentially dangerous to contract out the work leading to certification.
Since the agency cannot outsource this work, it has implemented a covert strategy aimed at eliminating it. This began when the FAA started increasing the time intervals between mandatory certification and the associated maintenance and tests. This action allowed for longer periods of time between fundamental maintenance checks and the deferment of periodic maintenance. However, without periodic maintenance, when systems did fail, the situation was often far more serious than if it had been detected earlier. Furthermore, without regular assessment of the systems and equipment, it was more difficult to keep systems specialists proficient in maintenance of the systems. The agency followed this action by eliminating compulsory loss of certification for systems or equipment that exceed their time intervals for certification. In other words, if the certification “expired,” systems specialists were now instructed to leave the certification in place regardless of how long it had been since the deadline.
While these steps severely weakened an important part of the FAA’s ability to ensure the safety and integrity of the NAS, its next and most recent act seeks to all but eliminate certification. For decades, the criteria in place for determining which NAS systems and services require certification stated, “FAA NAS systems, subsystems, and services directly affecting the flying public shall be certified.” However, in a recent update to the order, effective October 1, 2007, the agency has “clarified” the text to read, “FAA owned NAS systems, subsystems, and services directly affecting the flying public shall be certified” (emphasis added). In other words, the FAA has not only re-interpreted the criteria to allow certain systems and services to be deployed without requiring certification but actually prohibits full and appropriate certification of all systems it does not own. Without certification performed by FAA employees, the agency will have to rely on an outside vendor to report problems or difficulties—there will be no internal FAA quality checks as there are today.
Conclusion: Privatization of air traffic services will undoubtedly have a negative impact on the safety and efficiency of the aviation system. The FAA workforce of controllers and systems specialists are the only groups trained and capable of solving the unique problems and unanticipated situations associated with air traffic safety issues. As will all functions concerned with the maintenance of safety, the success of air traffic services is dependent on redundancy—both human and technological—as a system failsafe. Intent on maximizing profits (termed “efficiency” by privatization advocates), a private company can be expected to minimize the redundancies in order to reduce cost. In reality, entrusting this safety-critical work to contractors who are not specifically trained on NAS operations may end up costing far more over the long term.
The work of FAA controllers, engineers, and systems specialists must remain a function of the U.S. government, free of interference from corporations primarily interested in moneymaking opportunities. Privatization of the aviation industry takes the focus away from safety, and that is something that should never be anything but the top priority. As such, we respectfully request that the incoming administration issue an executive order firmly ensuring the inherently governmental status of air traffic services.
Manager, General Law Branch, AGC-110, memorandum to Manager, Maintenance Engineering Division, ASM-100, “Contractor Certification of Navigational Systems in National Airspace System (NAS),” June 18, 1991.
FAA Order 6000.15E – General Maintenance Handbook for National Airspace System (NAS) Facilities.
FAA Order 6000.15E – General Maintenance Handbook for National Airspace System (NAS) Facilities, draft dated February 13, 2007, effective October 1, 2007.