“The FAA is furloughing thousands of air traffic controllers and will purposely delay thousands of flights every day. The FAA’s unnecessary and reckless action will disrupt air travel for millions of Americans, cost jobs and threatens to ground the U.S. economy to a halt. It doesn’t have to be that way. The FAA can make other cost cuts, and deem air traffic controllers ‘essential employees.’”
— text of online ad “Don’t Ground America” promoted by Airlines for America and other trade groups.
Before the sequester began, we examined closely some of the claims and counterclaims made about the impact on the Federal Aviation Administration. Unlike many of the other agencies we rated, which had predicted cutbacks based on some dubious accounting, the FAA made a pretty good case that its cost structure — 71 percent of the operations budget pays for salaries — left it little wiggle room in making cuts. “The FAA assertions have the appearance of a Geppetto Checkmark,” we wrote, though we held off making a final ruling.
Furloughs of air traffic controllers were implemented last weekend, and the resulting flight delays have created a political firestorm, and lawmakers are already looking for a way to close the gap. Critics — including a coalition of airlines and pilots that has filed a lawsuit to block the action — have charged that the FAA has other ways to cut costs beside furloughing air traffic controllers. In its ad, the group also claims that controllers could be deemed “essential employees” and keep working, such as during a government shutdown because Congress failed to complete appropriations bills.
Rep. Bill Shuster (R-Penn.), chairman of the House Transportation Committee, in a statement listed a number of nonpersonnel costs that he said could be examined first, including “nearly $500 million for consultants; $325 million in supplies and travel; the FAA has 46 aircraft that cost $143 million to operate.”
A committee staff member said some of Shuster’s ire stemmed from the fact that he believes that Transportation Department officials have not responded in a timely way for information on how the agency would cope with the sequester cuts. Still, we did find examples in congressional testimony in which administration officials have addressed questions about some of these line items.
So let’s take a look at the claims in the trade group ad. How much flexibility does the FAA have?
The lawsuit makes an interesting claim, arguing that during a similar sequestration in 1986, Congress imposed a budget cut of 4.3 percent, “which was accomplished without freezing hires of air traffic controllers, much less furloughs.” But that’s missing the whole story: as furloughs loomed in 1986, lawmakers passed a special appropriations bill that restored the 4.3 percent cut for a number of crucial programs, including FAA controllers, federal meat inspectors and Coast Guard operations. By itself, the FAA got back almost 75 percent of the $116 million that it would have lost under sequestration, news reports show.
Indeed, this year Congress gave a special exemption from the sequester to the Agriculture Department’s food inspectors. But the airline industry failed to get a similar deal, leading to the furloughs that were avoided nearly three decades ago.
Why do the trade groups believe the controllers could be deemed “essential employees,” as during a government shutdown? Vaughn Jennings, a spokesman for Airlines for America, cited an exception in the U.S. code, drawn from the Antideficiency Act, that the Office of Management and Budget has relied on for government shutdowns. He said it could apply also to a sequester.
This turns on legal interpretation, but we could find no support for this position among government officials, congressional Republicans or legal experts. The Antideficiency Act prohibits federal employees from making or authorizing expenditures in excess of what has been appropriated.
In the case of a government shutdown, there is a temporary lapse in appropriations. So to prevent possible harm to public safety, certain employees can be “excepted” and required to work — temporarily without pay. The assumption is that the government will eventually get funded, and workers will receive their overdue pay.
A sequester is a fundamentally different matter. In this case, Congress, through the budget process, already has decided how much money agencies can receive, so experts say it is against the law for the government to arbitrarily conclude some workers can keep working, even for public safety reasons.
“We stand by our position,” Jennings said. “The courts have not ruled on this, and our opinion still holds that there is no reason why the exception would apply to one aspect of the law (shutdown) but not another (sequester). Our position is based on the plain language of the statutes involved.”
The trade group did not explain how the FAA could make other cost cuts, so let’s look at the items that Shuster provided in his statement. We had looked at some of these issues previously and found them to be misleading. Shuster’s list now has expanded but the FAA provided The Fact Checker with fairly detailed explanations of these line items.
$500 million in consultants: The $514 million spent on “advisory and assistance services” refers not to consultants but to operational contracts to support the air traffic control system. That means things like telecommunications and weather radar — assistance that helps maintain the integrity of the system. Consultant contracts amount to just $21 million, but that mostly means environmental experts who check to make sure noise regulations are being followed.
In response to the sequester, the FAA already is aiming to cut about $50 million, or about 10 percent, from the”advisory and assistance services” contracts, officials said.
$325 million in supplies and travel: The $134 million in “supplies and materials” refers mainly to parts needed for air traffic control, back-up generators, heating and ventilation equipment and the like. Because of the sequester, the $117 million earmarked for parts and maintenance is scheduled to decline 18 percent, to $96 million, while spending on HVAC equipment and fuel has been slashed 40 percent, to $16 million, in 2013.
Meanwhile, the $154 million in “travel and transportation of persons” refers mainly to on-site equipment repair, FAA officials said. It also includes travel for new controller training, but that will be suspended as part of the sequester. FAA says this line item is targeted to decline about 13 percent, to $134 million.
Forty-six aircraft that cost $143 million to operate: The $143 million figure is from a 2010 GSA report, congressional aides say, but FAA officials say that year was an anomaly because $60 million was spent to upgrade the avionics on 17 aircraft. In 2012, the aircraft bill was much lower--$78 million--and that has been cut 12 percent, to $69 million, in 2013.
Why does the FAA need so many planes? Thirty-two of the planes are used for flight checking of navigational aids, both when they are installed and then as a regular test. This program has been reduced 14 percent because of sequester, from $58 million in 2012 to $50 million in 2013. Three planes are based in Atlantic City to test evolving technologies in the NextGen air traffic control system, eight are used for aviation safety inspector training and three are based at Reagan National airport for travel to accident investigations.
Add it up, and the FAA says it plans to cut about $110 million — 12 percent — from $903 million of possible areas for cuts identified by Shuster.
The FAA’s work force is heavily unionized, and the furloughs have been ordered without trying to make allowances for the level of traffic in particular airports. The FAA argues that it did not want to be in the position of picking “winners and losers,” either among airports or union members. We obviously can’t make a judgment about the right course of action.
The Pinocchio Test
The ad, and remarks from congressional critics, makes the dilemma facing the FAA seem all too easy. While some of these questions remain to be adjudicated in a legal setting — assuming Congress does not act first — the trade groups go too far in making it appear as if the FAA has ordered furloughs without first looking for other cost cuts or deeming controllers as essential employees.
The FAA has very high fixed costs — both in terms of salaries and contracts — giving it little flexibility. The ad thus is rather misleading about options facing the agency.
We are not sure why the airline industry blames the FAA in the first place. The Obama administration proposed the sequester, and Congress approved it with bipartisan support. The FAA’s hands are tied unless Congress and the White House reach a deal similar to the solution found in 1986.