The President announced this afternoon that he had struck a deal to reopen the government. The deal will reopen the government for three weeks.
During his announcement, the President made it clear that “we really have no choice but to build a powerful wall or steel barrier.” He made it clear that the government will shut down on February 15 if he does not get the funding that he desires for this project.
The President suggested, optionally, that he may declare state of emergency; but we still have to see any legal scholar suggest a way that either Title 6 (Domestic Security, including FEMA’s laws) or Title 50 (National Emergencies and International Emergency Economic Powers) permits the President to order unappropriated spending on capital projects. If the President can’t find a legal way to circumvent the Constitutional requirement for appropriations, then the emergency declaration gambit may ring hollow – which means that we should anticipate the possibility of another government shutdown on February 15.
Because this agreement is only for three weeks, the industry should focus its attention on the US government and on services that are necessary. For example, designees should ensure that their privileges are renewed during this window. Designees are an important part of the safety assurance process in our industry, so we should prioritize efforts to ensure that they can provide safety-related approval andcertification services in the event of a subsequent government funding lapse.
Designees may want to work with their FAA-Advisors to seek ’emergency clause’ authority, in which any extended government shutdown would enable emergency procedures. Such emergency procedures could include:
- where project-level permissions are typically required, the designee would have temporary permission to provide approvals or other support within certain pre-described parameters
- permission for the designee to engage in normal (pre-defined) activities during the shutdown;
- tolling of any expiration of authority that occurs during the shutdown period until a reasonable time after the lapse in funding is remedied (privileges should continue at the level immediately before the shutdown);
- an obligation for the designee to make a full accounting to the FAA Advisor of any emergency authorities used, so the FAA Advisor can engage in appropriate post-shutdown oversight; and,
- any other provisions that the designee and FAA-Advisor agree are reasonably necessary to protect safety in the event of a lapse in government funding.