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EUM
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NOME
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### February 18, 2015
Senator LisaMurkowski United States Senate 709 Hart Senate Building Washington D.C. 20510

Re: Native Village of Diomede and Kawerak, Inc. Request for Legislative Amendments regardingEligibilityfor EAS Service
Dear SenatorMurkowski:
The leadership ofthe Native Village ofDiomede (Diomede) and Kawerak, Inc. write to you today to request your assistance in obtaining a legislative amendment that would allow Diomede to be eligible for Essential Air Service program status which would enable Diomede to have regular scheduled air carrier services without the uncertainty that exists now each year. This is a matter ofcritical importance to this remote community that fundamentally affects the health, safety and welfare of every resident of this community. Background: Forthree years Kawerak, Inc. has assisted the Native Village ofDiomede in the Essential Air Service (BAS) program on their behalfin order for Diomede to receive scheduled air service to the island. TheU.S. Department ofTransportation (DOT) provides 50% ofthe funding for the BAS program, but requires a 50% match. The State ofAlaska provides the other 50%match through a Designated Legislative Grant. Continued funding through the State is not certain as the State is experiencing significant fiscal problems in which many State funded programs will have to be cut.
There are two BAS programs. The "Basic Essential Air Service" program provides guaranteed scheduled air carrier service to eligible communities, with full funding and no match requirement. Communities not eligible for the Basic BAS program, may qualify for an alternative BAS program that subsidizes scheduled air carrier services to the extent the community is able to obtain them, and also requires a 50% match for the BAS funding. Diomede is not eligible for the Basic BAS program due to the statutory eligibility requirements. Diomede has been able to qualify for the alternative subsidized BAS program but has had to provide the match each year since it entered the BAS programin2012.
Diomede is the only remaining communityinthe BAS programthatis not eligible for the Basic BAS program, and that must still provide a 50% match to receive the BAS subsidy

### through the alternative program. In recent years, other communities have been able to become eligible for the Basic EAS program or to have the match requirement in the alternative subsidized program waived t<.1r them, through legislative amendments to the applicable statutes. Request for Legislative Fix to the EAS Statute: The leadership ofDiomede and Kawerak are requesting that our congressional delegation provide a simple legislative "fix" to the applicable statutoryprovision, 49 U.S.C. §41731, which would allow Diomede to be eligible for the Basic EAS Program. Attached as Appendix A is the specific proposal for the legislative fix to 49 U.S.C. §41731. This fix would make Diomede permanently eligible for the EAS program without a subsidymatch requirement, and would correct the inequity of the current situation when Diomede is clearly one ofthemostremote communities in the US and mostinneed ofsuch services.
Critical Importance of Regularly Scheduled Air Carrier Service through 

### the EAS Program: The EAS program, to the extent Diomede has been able to be involved in it, has drastically improved the quality of life in Diomede. It 

### allows residents to travel for medical purposes, to attend training for business, and for pleasure. 

### It has greatly. improved access for health care, providing services such as law enforcement, emergency services, etc. The EAS program and the subsidy allows for more reliable access to goods and services. More Diomede representatives were able to travel for various important meetings.
The Diomede clinic is staffed by a health aide who deals with many types ofhealth care issues and medical emergencies. For those needing follow-up health care at the Norton Sound Health Corporation in Nome, having weekly helicopter services has decreased the need for medical emergencies, allows for medication to be delivered to patients and also minimizes the expense for thosemedical emergencies.
It 

### is important that the Alaska State Troopers have access to regular air services, as Diomede does not have a public safety officer. Many times in the past, criminal cases and accidental deaths had to wait for an expensive chartered helicopter flight to Diomede to bring possible suspects and remains ofdeceased persons to Nome. Child abuse cases might have taken weeks to get children offDiomede for their protection and to receive supportive services. It 

### also takes weeks for investigators to interview and investigate child abuse and neglect cases on the island. With scheduled air service, the appropriate agencies do nothave to wait for weeks to respond to these crisis situations.
There are groceries on the shelves in the store with regular air service. Maintenance staff for several entities (school, tribe, Village Corporation, power plant and communication systems maintenance) is able to provide more consistent and preventative maintenance. Staffis not stranded for weeks once in Diomede or waiting for weeks to get maintenance to those organizations with regular service.

### Teachers, health aides, board members, serviceproviders, residents and 

### guests have more opportunities to travel back and forth without fear 

### ofgetting stranded either in 

### Wales or extended stays in Diomede. Waiting for air 

### service in Wales creates hardships on the village ofWales. In 2010 

### teachers had to be brought to Diomede by small skin 

### boat which took 36 hours due to weather and rough seas. Without the support of EAS, travelers in either direction could be stranded for weeks or months without a way to get home. 

## It is 

### much more beneficial to residents and providers to plan for being gone a week orstayingjusta

### week in Diomede.
Kawerak and Diomede leadership strongly urge our Congressional delegation to 

### assist Diomede by obtaining a legislative fix 

### to the 

### BAS statute that 

### would make Diomede eligible for pennanent fully funded EAS status, because itis important to the health and 

### well being ofthe community. Without your support and a legislative fix, Diomede will 

## always face 

### uncertainty as to whether it 

### will have continued funding and thus continued regularly scheduled air 

### canier service. Diomede could face 

### problems similar to 

### the disaster situation in 2010 

### when there was not regular access for many months, affecting 

### all aspects 

### ofthelife inthe small community. RecentlyDiomedehas 

### submitted adisaster declarationdueto poorwalrus huntingbecause lackofice conditions and lackoffood on the grocery shelves at the Native 

### Store. Their 

### situation is being monitored by several entities, as onlythroughregularairflights, goods arebeingdeliveredto

### theircommunity.
Please seeAppendix Afor ourspecificproposal to amend the EAS legislation, and other attached documents which provide further background and context for our request, including the State ofAlaska 

### grant award and the commitment from theUS Department ofTransportation. Thankyou for 

## yoursupportand assistance inhelping Diomede obtain permanentBasicEAS programstatus. Sincerely,
---·-?'

### ~.......J\:·**~** 

# J...J--L/(

.

RobertSoolook, President NativeVillage ofDiomede

# ~Xh~ AndrewMUligrock, Mayor CityofDiomede

# L~6?,~ Ve..r-o...**o-z..e.~h-0\>** 

## Me.V"(\

## be.r Diomede

### NativeCorporation

# l:11Jt;nJyvyfULMelanieBalmke,President 

### Kawerak, Ine.



### CC: Brandon Belford, Deputy Assistant Secretary for Aviation and International Affairs, US DepartmentofTransportation

### Addendum A ToNative Village ofDiomede and Kawerak, Inc. Request for Legislative Amendments regarding Eligibility for Basic EAS Service

The Essential Air Service (EAS) statutes provide for two levels ofEAS service. "Basic Essential Air Service" tmder 49 U.S.C. §§41731 and 41732, means thatthe community is entitled to guaranteed scheduled air carrier service, and thatthere is no subsidy match requirement. A commtmity that cannotmeet the requirements to obtain Basic EAS Service may still be eligible under 49 U.S.C. §41736 for "AirTransportationto Noneligible Places." A community eligible underthis provision is not guaranteed scheduled air carrier service (funding is providedbut service is not guaranteed) and there is a subsidy match requirement. Diomede is currently eligible under §41736 and receives a 50% match from DOT for essential air services. Diomede subsidizes this with 50% state funding.

In recent years, three communities that were otherwise not eligible for EAS have successfully managedto have amendments enacted to the EAS statutes which have allowedthese communities to be included as eligible communities underthe statutory EAS scheme, presumably throughtheir congressional representatives. Amendments to 49 U.S.C. §41731 allowed two ofthe three other communities that were inthis situationto be included as eligible for Basic Essential Air Service. One ofthe three communities was eligible under 49 U.S.C. §41736 for EAS Services for Noneligible Places and was eligible to have the subsidymatch requirement waived through an amendmentto that statutoryprovision. Diomede is the only remaining community in this program that still is not eligible for Basic Essential Air Service, and that is still required to provide the 50% match.

Kawerak and the Native Village ofDiomede seek to have Diomede become eligible for Basic Essential Air Service. There is apparently no statutory orregulatory mechanism built into the EAS system to accept a new community that is otherwise not eligible under the existing scheme,
nor are there waiver or exemption provisions. The only way in which Diomede will be eligible is to amendthe current legislation. As noted above, there is precedent withthree other communities to amend the EAS legislation in orderto correct an inequity in whichthose communities would have remained permanently ineligible.

The cleanest way to amend the legislation, andthe approachthat would be mostbeneficial for Diomede, is to amend 49 U.S.C. §41731(a)(l)(A), and the definition of"eligible place" within

-1-

### that statutory provision so that Diomede would be eligible for Basic Essential Air Service. Within that provision, (i)(I) through (III) are the original requirements inthe statute which did not allow any ofthe otherthree communities, or Diomede, to be eligible under this definition. The statute was amended to include an alternative to those requirements in (A)(ii), which opened up eligibility for two ofthe communities:

...Or (W]as determined, on or after October 1, 1988, and before the date ofthe enactment ofthe Wendell 

## H. Ford Aviation Investment and Reform Act for the 21st Century, under this subchapterby the Secretary ofTransportationto be eligible to receive subsidized small community air service under section 41736.

Two ofthe three other communities became eligible withthis amendmentto §41731. Diomede has been eligible for and has received subsidiesthrough the "small community air serviceunder section41736" since a contract was signed and flights began in late November, 2012. Therefore, the following amendments to §47731 (a)(l)(A)(ii) would allow Diomede to be eligible:

...Or [W]as determined, on or after October 1, 1988, and before the date ofthe enactment ofthe Wendell 

### H. Ford Aviation Investment and

### Refom1 A:et for 

### the 

# ust Century, and before December L 2012, under this subchapterby the Secretary ofTransportationto be eligible to receive subsidized small community air service under section 41736.

Ourunderstandingis that there are no other conm1unities currently in the program that would become eligible with such an amendment, nor wouldthere be future communities eligible after the cut-offdate ofDecember 1, 2012, so it does not appear this would open a door to a massive influx ofother communities becoming eligible. According to DOT, Diomede is the only community that is inthis program and inthis situation.

There do not appear to be other statutory orregulatory provisions that would be affected by either ofthese amendments. 1 

### We are also not aware ofany obstacle to amending §41731.

1 14 C.P.R. 271.2 does provide a definition of"eligibleplace" that seems to contradict even the existing definition of eligible place under 49 U.S.C. §41731(a)(l)(A). Ourunderstanding from DOT is that this provision has been superfluous and contradictory to the statute for several years, and work is underway to have itremoved. And of
course to the extent it contradicts the statutoryprovisions, the statutory provisions supersede the regulation. -2-49 USC41731

NB: This wwjficial compilation q{the U.S. Code is current as of Jan. 4, 2012 (see http:!lwww./aw.cornel!.edu/uscodeluscprint.html).


### TITLE 49- TRANSPORTATION SUBTITLE VII- AVIATION PROGRAMS

. PART A- AIR COMMERCE AND SAFETY subpart ii

- economic regulation 

### CHAPTER 417- OPERATIONS OF CARRIERS

SUBCHAPTER II -SMALL COMMUNITY AIR SERVICE 

### § 41731. Definitions (a) General.- Inthis subchapter- (1) "eligibleplace" means aplace in the United States that- (A) (i) (I) was an eligible point under section 419 of the Federal Aviation Act of 1958 before October 1, 1988; (II) received scheduled air transportation at any time after January 1, 1990; and (III) is not listed in Department ofTransportation Orders 89-9-37 and 89-12-52
as aplace ineligible for compensationunder this subchapter; or (ii) was detennined, onor after October 1, 1988, andbefore the date ofthe enactment of theWendellH. FordAviationInvestment andRefmmActfor the 21stCentury, underthis subchapter by the Secretary ofTransportation to be eligible to receive subsidized small community air service under section 41736 (a); (B) is locatednot less than 90 miles from the nearest medium or large hub airport; and (C) had an average subsidy perpassenger ofless than $1,000 during the most recent fiscal year, as determinedbythe Secretary. (2). "enhanced essential air service" means scheduled air transportation to an eligible place ofa higher level orquality than basic essential air service described in section41732 ofthis title. (b) Limitation on Authority To Decide a l,lace Not an Eligible Place.- The Secretary may not decide that a place described in subsection (a){l) ofthis section is not an eligible place on any basis that is not specifically stated in tlus subchapter. (c) Exceptionsfor LocationsinAlaska.- Subsections (a)(l)(B) and (a)(l)(C) shall not apply with respect to a location inthe State ofAlaska. (d) Waivers.- The Secretary may waive subsection (a)(l)(B) with respect to a location if the Secretary detennines that the geographic characteristics of the location result in undue difficulty in accessing the nearestmedium orlarge hub airport. (Pub. L. 103-272, § l(e), July 5, 1994, 108 Stat. 1143; Pub. L. 106-181, title II,§ 208, Apr. 5, 2000, 114 Stat. 95; Pub. L. 108-176, title 

### II, §225(b)(2), Dec. 12, 2003, 117 Stat. 2529; Pub. L. 112-27, § 6, Aug. 5, 2011, 125 Stat. 271.)

Historical and Revision Notes Revised Section Source (U.S. Code) 41731(a)(1) 49 App.:1389(a)(1). Aug. 23, 1958, Pub. L. 85-726,72 Stat. 731, §419(a); added Oct. 24,1978, Pub. L. 95-504, § 33(a), 92 Stat. 1732; Dec. 8, 1983, Pub. L. 98-213, § 10,97 Stat. 1461; Oct. 4, 1984, Pub. L. 98-443, §9(r), 98 Stat. 1708; restated Dec. 30,1987, Pub. L.100-223, §202(a)(1), (2), (b)(1),101 Stat. 1507, 1508; restated Nov. 5, 1990, Pub. L. 101-508, §9113(a), 104 Stat. 1388-363. 41731(a)(2)

- 1- Source (Statutes at Large)49 USC41732

NB: This unofficial compilation of the U.S. Code is current as of Jan. 4, 20!2 (see http:l!www.law.comell.edu!uscodeluscprinl.h!ml).

TITLE 49 -TRANSPORTATION SUBTITLE VII- AVIATION PROGRAMS

PART A- AIR COMMERCE AND SAFETY

subpart ii- economic regulation CHAPTER 417- OPERATIONS OF CARRIERS

SUBCHAPTER II- SMALL COMMUNITY AIR SERVICE 

### § 41732. Basic essential air service (a) General.- Basic essential air service provided under section 41733 ofthis title is scheduled air transportation ofpassengers and cargo-- (1) to a hub airport that has convenient connecting or single-plane air service to a substantial number ofdestinations beyond that airport; or (2) to a small hub ornonhub airport, when in Alaska orwhenthe nearesthub aiqJOrt is more than 400 miles from aneligibleplace. (b) MinimumRequirements.- Basic essential air service shall include at least the following: (1) (A) for a place not in Alaska, 2 daily round trips 6 days a week, with not more than one intennediate stop on each flight; or (B) for a place in Alaska, a level of service at least equal to that provided in 1976 or 2 round trips a week, whichever is greater, except that the Secretary ofTransportation and the appropriate State authority ofAlaska may agree to a differentlevel ofservice after consulting with the affected community. (2) flights atreasonable times conside!ing the needs ofpassengers with connecting flights at the airport and atprices that arenot excessive compared to the generallyprevailingprices ofother air carriers for like service betweensimilar places. (3) for a place not in Alaska, service provided in an aircraft with an effective capacity ofat least 15 passengers ifthe average daily boardings at the place in any calendar year from 1976-1986
were more than 11 passengers unless- (A) that level-of-service requirement would require paying compensation in a fiscal year under section 41733 (d) or 41734 (d) or (e) ofthis title for the place when compensation otherwise would nothavebeenpaid for that place in thatyear; or (B) the affected community agrees withthe Secretary in writing to the use ofsmaller aircraft to provide service to theplace. (4) service accommodating the estimatedpassenger andpropertytraffic at an average loadfactor, for each class oftraffic considering seasonal demands for the service, ofnot more than- 

### (A) 50 percent; or 

### (B) 60 percent when service is providedby aircraft with more than 14 passenger seats. (5) service provided in aircraft with at least 2 engines and using 2 pilots, unless scheduled air transportation has not been provided to the place in aircraft with at least 2 engines and using 2 pilots for at least 60 consecutive operating days at any time since October 31, 1978. (6) service providedbypressurized aircraft whenthe service is providedby aircraftthatregularly fly above 8,000 feet in altitude. (Pub. L. 103-272, 

### § l(e), July 5, 1994, 108 Stat. 1144.)

Revised Section 41732(a) 49 App.:1389(k)(1) (1st sentence). Historical and Revision Notes Source (U.S. Code} Source (Statutes at Large)

- 1-49 USC41736

NB: This unojj/cial compUarion of the U.S. Code is wrrentas of Jan 4. 2012 (see http://www.law.comel/.edu!uscodeluscprintJIIml).



### TITLE 49 ·TRANSPORTATION SUBTITLE VII • AVIATION PROGRAMS PART A- AIR COMMERCE AND SAFETY

subpart 

### ii- economic regulation 

### CHAPTER 417- OPERATIONS OF CARRIERS SUBCHAPTER 11- SMALL COMMUNITY AIR SERVICE 

### § 41736. Air transportation to noneligible places (a) Proposals and Decisions.- (1) A State or local governmentmaypropose to the Secretary ofTranspmiationthatthe Secretary provide compensationto an aircanierto provide air transportationto aplace that is notaneligible place under this subchapter. Not later than 90 days after receiving a proposal under this section, the Secretary shali- (A) decide whether to designate the place as eligible to receive compensation under this section; and (B) (i) approvetheproposal ifthe State orlocal governmentorapersonis willing and ableto pay 50 percent ofthe compensation for providing the transpmiation, and notify the State
or local government ofthe approval; or (ii) disapprove the proposal if the Secretary decides the proposal is not reasonable under paragraph (2) ofthis subsection, and notify the State or local government ofthe disapproval and the reasons for the disapproval. (2) In deciding whether a proposal is reasonable, the Secretary shall consider, among other factors- (A) the traffic-generating potential ofthe place; (B) the cost to the United States Govemment ofproviding the proposedtransportation; and (C) the distance ofthe place from the closest hub airport (b) Approval for Certain Air Transportation.- Notwithstanding subsection (a)(l)(B) of this section, the Secretary shall approve a proposal under this section to compensate an air carrier for providing air transportation to a place in the 48 contiguous States or the District of Columbia and designate the place as eligible for compensationunder this section if- (1) at any time before October 23, 1978, the place was served by a carrier holding a certificate under section401 oftheFederal Aviation Act of 1958; (2) theplace is more than 50 miles from the nearest small hub airport or an eligibleplace; (3) the place is more than 150 miles from the nearest hub airport; and (4) the State or local government submitting the proposal or a person is willing and able to pay 25 percent ofthe cost ofproviding the compensated transportation. Paragraph (4) does not apply to any community approved for service under this section during the periodbeginning October 1, 1991, and ending December 31, 1997. (c) Level ofAir Transportation.- (!) If the Secretary designates a place under subsection (a)(l) of this section as eligible for compensationunderthis section, the Secretary shall decide, notlaterthan 6 months afterthedateof the designation, onthe level ofairtransportationto beprovidedunderthis section. Beforemakinga decision, the Secretary shall considerthe views ofany interested community, the appropriate State authority ofthe State in which the place is located, and the State or local government or person agreeing to pay compensation for the transpmiation under subsection (b)(4) ofthis section. (2) After making the decision underparagraph (1) ofthis subsection, the Secretary shall provide notice that any air carrierthat is willing to provide the level ofair transportation establishedunder

- I

-49 USC41736

NB: This wroj/icial compilation of the U.S. Code is currentas of Jan. 4. 2012 (see http:!!aww.law.cornell.eduluscocleluscprint.html).
paragraph (1) for a place.may submit an application to provide the transportation. In selecting an applicant, the Secretary shall consider, among other factors- (A) the factors listed in section 41733 (c)(l) ofthis title; and (B) the views ofthe State or local government or person agreeing to pay compensation tor the transportation. (d) Compensation Payments.- (1) The Secreta1y shall pay compensation under this section when and in the way the Secretary decides is appropriate. The Secretary shall continue to pay compensation under this section only


### as long 

### as- (A) the air carriermaintains the level ofair transportation establishedby the Secretaryunder subsection (c)(l) ofthis section; (B) the State orlocal government orperson agreeing to pay compensation for transportation under this section continues to pay that compensation; and (C) the Secretary decidesthe compensationis necessa1y to maintain the transportation to the place. {2) The Secretary may require the State or local goverrnnent or person agreeing to pay compensation under this section to make advance payments orprovide other security to ensure thattimelypayments are made. (e) Review.- The Secretary shall review periodically the level ofair transportationprovided under this section. Based onthereview andconsultationwith any interestedcommunity,the appropriate State authority ofthe State in which the community is located, and the State or local govemment or person paying compensationunder this section, the Secretarymay make appropriate adjustments in the level oftransportation. (f) Withdrawal of Eligibility Designations.- After providing notice and an opportunity for interestedpersons to comment, the Secretarymaywithdrawthe designation ofa placeunder subsection (a)(l) ofthis section as eligible to receive compensation under this section iftheplacehas received air transportationunderthis section for atleast 2 years and the Secretmy decides thewithdrawal wouldbe in the public interest. The Secretmy by regulation shall prescribe standards for deciding whether the withdrawal ofa designation under this subsection is in the public interest. The standards shall include the factors listed in subsection (a)(2) ofthis section. (g) Ending, Suspending, and Reducing Air Transportation.- An air can-ier providing air transportation for compensation under this section may end, suspend, or reduce that transpmiation below the level oftranspmiation established by the Secreta1y under this section only after giving the Secretary, the affected community, and the State or local govemment or person paying compensation underthis sectionat least 

### 30 days' noticebefore ending, suspending, orreducing the transportation. (Pub. L. 103-272, 

### § 1(e), July 5, 1994, 108 Stat. 1149; Pub. L. 106-181, title II, 

### §202, Apr. 5, 2000, 114 Stat. 91.)



### Historical and Revision Notes Revised Section 41736(a) 

### 4Q App..:13,8,9(cl)(1 ):(2)(A), (C). Source (U.S. Code)

Aug. 23, 1958, Pub. L. 85-726,72 Stat. 731, §419(d); added Oct. 24, 1978, Pub. L. 95-504, §33(a), 92 Stat. 1732; Dec. 8, 1983, Pub. L. 9&-213, § 10, 97 Stat. 1461; Oct. 4, 1984, Pub. L. 98-443, §9(r), 98 Sta\..1708; restated Dec. 30,1987, Pub. L. 100-223, §202(a)(1), (2), (b)(1), 101 Stat. 1507, 1513. 41736(b) 49 App.:1389(d)(2)(B).


### -2- Source (Statutes at Large)