SERVING THE 

VILLAGES OF: 

'BREVIG MISSION 

COUNCIL 

DIOMEDE 

EUM 

GAMBELL 

GOLOVIN 

KING ISLAND 

KOYUK 

MARY'S IGLOO 

NOME 

SAVOONGA 

SHAKTOOLIK 

SHISHMAREF 

SOLOMON 

STEBBINS 

ST. MICHAEL 

TELLER 

UNALAKLEET 

WALES 

WHITE MOUNTAIN 

~ ~ L!:>... ~ /!!::.. J!!:>..~ ./!!1> TEL: (907) 443-5231·FAX:{ii(J?)_4j3-4452 

February 18, 2015 

Senator Lisa Murkowski 

United States Senate 

709 Hart Senate Building 

Washington D.C. 20510 

Re: Native Village of Diomede and Kawerak, Inc. Request for Legislative 

Amendments regarding Eligibility for EAS Service 

Dear Senator Murkowski: 

The leadership of the Native Village of Diomede (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 of critical importance to this remote community 

that fundamentally affects the health, safety and welfare of every resident of this 

community. 

Background: 

For three years Kawerak, Inc. has assisted the Native Village of Diomede in the Essential 

Air Service (BAS) program on their behalf in order for Diomede to receive scheduled air 

service to the island. The U.S. Department of Transportation (DOT) provides 50% of the 

funding for the BAS program, but requires a 50% match. The State of Alaska 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 

program in 2012. 

Diomede is the only remaining community in the BAS program that is 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 of Diomede and Kawerak are requesting that our congressional delegation 

provide a simple legislative "fix" to the applicable statutory provision, 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 subsidy match 

requirement, and would correct the inequity of the current situation when Diomede is 

clearly one ofthe most remote communities in the US and most in need of such 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 of health 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 those medical 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 of deceased persons to Nome. Child abuse cases 

might have taken weeks to get children off Diomede 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 not have 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. 

Staff is 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, service providers, residents and guests have more 

opportunities to travel back and forth without fear of getting stranded either in Wales or 

extended stays in Diomede. Waiting for air service in Wales creates hardships on the 

village of Wales. 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 or staying just a 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 it is important to the health and 

well being of the 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 of the life in the small community. Recently Diomede has submitted a disaster 

declaration due to poor walrus hunting because lack of ice conditions and lack of food on 

the grocery shelves at the Native Store. Their situation is being monitored by several 

entities, as only through regular air flights, goods are being delivered to their community. 

Please see Appendix A for our specific proposal to amend the EAS legislation, and other 

attached documents which provide further background and context for our request, 

including the State of Alaska grant award and the commitment from the US Department 

of Transportation. Thank you for your support and assistance in helping Diomede obtain 

permanent Basic EAS program status. 

Sincerely, 

---·-?' ~.......J\:· ~ J...J--L/( . 

Robert Soolook, President 

Native Village of Diomede 

Andrew ~Xh~ MUligrock, Mayor 

City of Diomede 

Ve..r-o... 

L~6?,~ o-z..e.~h-0\> Me.V"(\ be.r 

Diomede Native Corporation 

l:11Jt;nJyvyfULMelanie Balmke, President 

Kawerak, Ine. 

CC: Brandon Belford, Deputy Assistant Secretary for Aviation and International 

Affairs, US Department ofTransportation 
Addendum A 

To Native Village of Diomede and Kawerak, Inc. 

Request for Legislative Amendments regarding 

Eligibility for Basic EAS Service 

The Essential Air Service (EAS) statutes provide for two levels of EAS service. "Basic Essential 

Air Service" tmder 49 U.S.C. §§41731 and 41732, means that the community is entitled to 

guaranteed scheduled air carrier service, and that there is no subsidy match requirement. A 

commtmity that cannot meet the requirements to obtain Basic EAS Service may still be eligible 

under 49 U.S.C. §41736 for "Air Transportation to Noneligible Places." A community eligible 

under this provision is not guaranteed scheduled air carrier service (funding is provided but 

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 

managed to have amendments enacted to the EAS statutes which have allowed these 

communities to be included as eligible communities under the statutory EAS scheme, 

presumably through their congressional representatives. Amendments to 49 U.S.C. §41731 

allowed two of the three other communities that were in this situation to be included as eligible 

for Basic Essential Air Service. One of the three communities was eligible under 49 U.S.C. 

§41736 for EAS Services for Noneligible Places and was eligible to have the subsidy match 

requirement waived through an amendment to that statutory provision. 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 of Diomede seek to have Diomede become eligible for Basic 

Essential Air Service. There is apparently no statutory or regulatory 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 amend the current legislation. As noted above, there is precedent with three other 

communities to amend the EAS legislation in order to correct an inequity in which those 

communities would have remained permanently ineligible. 

The cleanest way to amend the legislation, and the approach that would be most beneficial 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 in the statute which did 

not allow any of the other three 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 of the communities: 

... Or 

(W]as determined, on or after October 1, 1988, and before the date of the 

enactment of the Wend ell H. Ford Aviation Investment and Reform Act for the 

21st Century, under this subchapter by the Secretary of Transportation to be 

eligible to receive subsidized small community air service under section 41736. 

Two of the three other communities became eligible with this amendment to §41731. Diomede 

has been eligible for and has received subsidies through the "small community air service under 

section 41736" 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 of the Wendell H. Ford Aviation Investment and Refom1 A:et for the 

ust Century, and before December L 2012, under this subchapter by the 

Secretary of Transportation to be eligible to receive subsidized small community 

air service under section 41736. 

Our understanding is that there are no other conm1unities currently in the program that would 

become eligible with such an amendment, nor would there be future communities eligible after 

the cut-off date of December 1, 2012, so it does not appear this would open a door to a massive 

influx of other communities becoming eligible. According to DOT, Diomede is the only 

community that is in this program and in this situation. 

There do not appear to be other statutory or regulatory provisions that would be affected 

by either of these amendments. 1 We are also not aware of any obstacle to amending 

§41731. 

1 14 C.P.R. 271.2 does provide a definition of "eligible place" that seems to contradict even the existing definition of 

eligible place under 49 U.S.C. §41731(a)(l)(A). Our understanding from DOT is that this provision has been 

superfluous and contradictory to the statute for several years, and work is underway to have it removed. And of 

course to the extent it contradicts the statutory provisions, 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.- In this subchapter-

(1) "eligible place" means a place 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 of Transportation Orders 89-9-37 and 89-12-52 

as a place ineligible for compensation under this subchapter; or 

(ii) was detennined, on or after October 1, 1988, and before the date of the enactment of 

the Wendell H. Ford Aviation Investment and Refmm Act for the 21st Century, under this 

subchapter by the Secretary of Transportation to be eligible to receive subsidized small 

community air service under section 41736 (a); 

(B) is located not less than 90 miles from the nearest medium or large hub airport; and 

(C) had an average subsidy per passenger of less than $1,000 during the most recent fiscal 

year, as determined by the Secretary. 

(2). "enhanced essential air service" means scheduled air transportation to an eligible place of a 

higher level or quality than basic essential air service described in section 41732 of this 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) of this section is not an eligible place on any basis 

that is not specifically stated in tlus subchapter. 

(c) Exceptions for Locations in Alaska.- Subsections (a)(l)(B) and (a)(l)(C) shall not apply with 

respect to a location in the State of Alaska. 

(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 nearest medium or large 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 of this title is scheduled air 

transportation of passengers and cargo--

(1) to a hub airport that has convenient connecting or single-plane air service to a substantial 

number of destinations beyond that airport; or 

(2) to a small hub or nonhub airport, when in Alaska or when the nearest hub aiqJOrt is more than 

400 miles from an eligible place. 

(b) Minimum Requirements.- 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 197 6 or 2 

round trips a week, whichever is greater, except that the Secretary of Transportation and the 

appropriate State authority of Alaska may agree to a different level of service after consulting 

with the affected community. 

(2) flights at reasonable times conside!ing the needs of passengers with connecting flights at the 

airport and at prices that are not excessive compared to the generally prevailing prices of other air 

carriers for like service between similar places. 

(3) for a place not in Alaska, service provided in an aircraft with an effective capacity of at least 

15 passengers if the 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 not have been paid for that place in that year; or 

(B) the affected community agrees with the Secretary in writing to the use of smaller aircraft 

to provide service to the place. 

( 4) service accommodating the estimated passenger and property traffic at an average load factor, 

for each class of traffic considering seasonal demands for the service, of not more than-

( A) 50 percent; or 

(B) 60 percent when service is provided by 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 provided by pressurized aircraft when the service is provided by aircraft that regularly 

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 wrrent as 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 government may propose to the Secretary ofTranspmiation that the Secretary 

provide compensation to an air canier to provide air transportation to a place that is not an eligible 

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) approve the proposal if the State or local government or a person is willing and able to 

pay 50 percent of the compensation for providing the transpmiation, and notify the State 

or local government of the approval; or 

(ii) disapprove the proposal if the Secretary decides the proposal is not reasonable 

under paragraph (2) of this subsection, and notify the State or local government of the 

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 of the place; 

(B) the cost to the United States Govemment of providing the proposed transportation; and 

(C) the distance of the 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 compensation under this section if-

(1) at any time before October 23, 1978, the place was served by a carrier holding a certificate 

under section 401 of the Federal Aviation Act of 1958; 

(2) the place is more than 50 miles from the nearest small hub airport or an eligible place; 

(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 of the cost of providing the compensated transportation. 

Paragraph (4) does not apply to any community approved for service under this section during the 

period beginning October 1, 1991, and ending December 31, 1997. 

(c) Level of Air Transportation.-

(!) If the Secretary designates a place under subsection (a)(l) of this section as eligible for 

compensation under this section, the Secretary shall decide, not later than 6 months after the date of 

the designation, on the level of air transportation to be provided under this section. Before making a 

decision, the Secretary shall consider the views of any interested community, the appropriate State 

authority of the 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) of this section. 

(2) After making the decision under paragraph (1) of this subsection, the Secretary shall provide 

notice that any air carrier that is willing to provide the level of air transportation established under 

- I -
49 USC41736 

NB: This wroj/icial compilation of the U.S. Code is current as 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) of this title; and 

(B) the views of the 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 carrier maintains the level of air transportation established by the Secretary under 

subsection (c)(l) ofthis section; 

(B) the State or local government or person agreeing to pay compensation for transportation 

under this section continues to pay that compensation; and 

(C) the Secretary decides the compensation is 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 or provide other security to ensure 

that timely payments are made. 

(e) Review.- The Secretary shall review periodically the level of air transportation provided under 

this section. Based on the review and consultation with any interested community, the appropriate State 

authority of the State in which the community is located, and the State or local govemment or person 

paying compensation under this section, the Secretary may make appropriate adjustments in the level 

of transportation. 

(f) Withdrawal of Eligibility Designations.- After providing notice and an opportunity for 

interested persons to comment, the Secretary may withdraw the designation of a place under subsection 

(a)(l) of this section as eligible to receive compensation under this section if the place has received air 

transportation under this section for at least 2 years and the Secretmy decides the withdrawal would be 

in the public interest. The Secretmy by regulation shall prescribe standards for deciding whether the 

withdrawal of a designation under this subsection is in the public interest. The standards shall include 

the factors listed in subsection (a)(2) of this 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 of transpmiation 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 

under this section at least 30 days' notice before ending, suspending, or reducing 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)