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Letter to Chairmen Murray and Oberstar Regarding Review of DOT and FAA Actions Related to Slot Auctions at New York Airports

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On January 15, 2009, we issued our review of the Department of Transportation’s (DOT) and the Federal Aviation Administration’s (FAA) actions regarding final rulemaking activities related to the auction of take–off and landing slots at LaGuardia, John F. Kennedy, and Newark airports. This review was requested by Patty Murray, Chairman of the Senate Subcommittee on Transportation, Housing and Urban Development, and Related Agencies and James Oberstar, Chairman of the House Committee on Transportation and Infrastructure.

FAA planned to auction up to 66 slots at the three New York airports in January 2009. However, in September 2008, the Government Accountability Office (GAO) found that FAA does not have the statutory authority to auction the slots and stated that if FAA moves forward and uses the auction proceeds, it would violate the Antideficiency Act and the Purpose Statute. DOT disagreed and, based on a legal opinion from the Department of Justice (DOJ), FAA signed the final rules to auction the slots. In December, the U.S. Court of Appeals issued a stay, which prevented FAA from auctioning the slots pending further judicial review.

Consistent with the Chairmen’s request, we focused our review on two issues related to the rulemaking activities. First, in light of the GAO opinion, did FAA and DOT actions constitute a willful violation of the Act and Purpose Statute? Second, were career FAA and DOT staff coerced, compelled, or otherwise required by their supervisors to knowingly engage in illegal conduct? We found that FAA and DOT officials have a valid defense against the antideficiency charge because they can demonstrate a good faith belief that what they were doing was lawful, based on DOJ’s external, legal opinion. A final decision on whether the Act was violated will depend on how various, interrelated legal issues are resolved in Federal courts. In addition, while FAA staff felt considerable pressure from the Department, they told us that they were not coerced or otherwise compelled to agree with the decision to sign the final rules for the slot auctions.