FAA Under New Management (Temporarily): Trottenberg, Thomson, Washington
June 9, 2023|Jeff Davis
Yesterday, the Department of Transportation announced a new management team to take over the Federal Aviation Administration on a temporary basis, pending the Senate’s confirmation of a yet-to-be-nominated new Administrator.
Since Administrator Steve Dickson quit his post a little more than halfway through his Senate-confirmed five-year term, Associate Administrator for Safety Billy Nolen has served as Acting Administrator (since April 1, 2022). But with Nolen leaving this week, that left President Biden with the decision as to who to name to take his place.
By law (subsection (i) of 49 U.S.C. §106), the FAA’s Deputy Administrator is supposed to serve as Acting Administrator when the head job goes vacant. However, that law, and all the other vacancy statutes, are overruled by the Vacancies Reform Act, which says that the President may personally install someone in that acting capacity instead of the person who the law says should serve.
(The Vacancies Reform Act is a complicated and confusing law – see this Congressional Research Service report that tries to explain it.)
President Biden availed himself of the Vacancies Reform Act in April 2022 when he tapped Billy Nolen to serve as Acting Administrator, instead of Deputy Administrator Brad Mims, who would otherwise have assumed the job.
Now, with Nolen leaving, President Biden is bypassing Mims a second time, appointing Deputy Secretary of Transportation Polly Trottenberg to serve as Acting Administrator under the Vacancies Reform Act for up to 210 days.
Mims is heading to the Office of the Secretary to head the Office of Small and Disadvantaged Business Utilization. His role as Deputy Administrator will be taken by Katie Thomson, who was named Chief of Staff of the FAA less than four months ago, presumably in order that she be legally available to be named Deputy Administrator.
And Keith Washington will replace Thomson (after her ever-so-brief tenure) as FAA Chief of Staff.
Polly Trottenberg has a long and distinguished career in transportation policy and operations, though it is concentrated in the highway and transit modes. Trottenberg’s designation as Acting Administrator must be seen in context of what happened earlier this year, when Senator Ted Cruz (R-TX) was successful in killing the nomination of Phil Washington to be FAA Administrator.
Cruz’s primary line of attack was that Washington’s lack of a lengthy aviation safety background should have precluded his nomination, despite presidents of both parties having nominated similar candidates in the past, several of whom went on to have excellent careers running the FAA. Cruz said several times that he wanted Biden to nominate Billy Nolen, or someone with an aviation safety résumé like his, for the job.
So, from the White House’s point of view, putting someone like that in charge as Acting Administrator would be rewarding Cruz for his bad behavior. Trottenberg’s appointment cannot possibly be interpreted as giving Senator Cruz what he wants, as we wait for the White House to nominate someone to serve a full five-year term.
Also, to the extent that the Administration did not communicate well with the Senate during the Washington nomination, among the items on Trottenberg’s résumé is “legislative director to Senator Charles Schumer,” which (one would think) would bode well for communication there.
The decision to put Trottenberg, a Senate-confirmed Team Biden participant, in charge of the FAA temporarily probably also has to deal with the White House switching over to campaign mode and trying to manage aviation news in advance.
(Seriously. Read subsection (f) of 49 U.S.C. §106, which was painstakingly negotiated when DOT was created in 1966. The Secretary runs most of USDOT, but the Secretary does not have the final word on aviation safety. The Secretary cannot overrule the FAA Administrator on a variety of safety-related things laid out in section 106, and one can imagine a situation where those things become politically sensitive.)
And Thomson may be the last Deputy Administrator – section 121 of the just-released House FAA reauthorization bill would split that job in two: a political “Deputy Administrator for Programs and Management” and a career “Deputy Administrator for Safety and Operations.” The official section-by-section summary of the bill says that this change “provides consistency and stability to the agency between Administrations, reduces the likelihood of needing an executive from a Line of Business or Staff Office to perform the duties of an acting Administrator, and helps to manage the increasingly diverse and complex responsibilities of the FAA.”
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