STATEMENT OF

HANK KRAKOWSKI,
CHIEF OPERATING OFFICER,
AIR TRAFFIC ORGANIZATION,
FEDERAL AVIATION ADMINISTRATION,

ON

THE HUDSON RIVER AIRSPACE AND MANAGEMENT OF UNCONTROLLED AIRSPACE CORRIDORS,

BEFORE THE

HOUSE COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE,
SUBCOMMITTEE ON AVIATION,

SEPTEMBER 16, 2009.

Chairman Costello, Congressman Petri, and Members of the Subcommittee:

Thank you for inviting me here today to discuss the very sad events of August 8, 2009, and what FAA is doing to create a safer operating environment over the Hudson River. Everyone at FAA grieves with the families over the loss of life that occurred that day. When such events do occur, we redouble our efforts to make the skies safer. My colleagues at FAA and throughout the aviation industry approach this work with seriousness and urgency.

Since the investigation of the accident remains under the formal processes of the National Transportation Safety Board (NTSB), I will not be commenting on the specifics of the accident. I will, however, share with you the immediate actions we have taken, as well as discuss some of our longer-range plans to improve safety.

The FAA’s first action was taken on August 11. We issued a Notice to Airmen (NOTAM) that reiterated our recommended best practices for conduct of flight in the airspace of the Hudson River corridor. New York airspace is very restricted by a large volume of “Class B” airspace, which is designed to provide positive protection of airliners using LaGuardia, John F. Kennedy International, and Newark Liberty International Airports. All aircraft within Class B airspace must be under positive control by air traffic controllers.

There are areas known as “VFR flyways,” where we permit aircraft operating under Visual Flight Rules (VFR) to fly within a defined corridor and below certain altitudes without being under positive air traffic control. These VFR flyways use “see and be seen rules,” where pilots are responsible for maintaining safe distance from other aircraft. In New York, this VFR flyway is commonly called the “exclusion area,” which has existed in some form since 1971, and is bounded by the Hudson River and has a ceiling of either 1,100 feet or 1,500 feet. (See Figures 1.)

The August 11 NOTAM reiterated long-recommended practices for this VFR flyway, including speed limitations (not exceeding 140 knots) and taking precautionary measures (turning on anti-collision, position/navigation, and/or landing lights and self-announcing their position on the Hudson River frequency for all other aircraft to hear).

We recognized this was only the first step to assess and enhance the safety of Visual Flight in this area. On August 14, 2009, we chartered a New York Airspace Task Force to review the current procedures for Hudson River operations, specifically with regard to safety of flight, operations, and regulatory compliance and make recommendations to Administrator Babbitt no later than August 28 – just two weeks later. The Task Force consisted of FAA air traffic and aviation safety experts, as well as air traffic controllers representing the National Air Traffic Controllers Association (NATCA) who work in this area. We also had input from key stakeholders – such as Helicopter Association International, the Aircraft Owners and Pilots Association, and the Port Authority of New York/New Jersey. The group delivered these recommendations to Administrator Babbitt on time on August 28. We thank the Task Force members for their efforts, particularly given the short timeline. Because we believe that their recommendations will enhance the safety of this airspace, we intend to implement their recommendations via expedited rulemaking and revised letters of agreement with the area airports and operators.

The Task Force recommended eight specific safety and operational enhancements that would restructure the airspace, mandate pilot operating rules, create a new entry point into the Hudson River airspace from Teterboro, and standardize New York area charts and maps. They also recommended developing new training for pilots, air traffic controllers, and helicopter operators so they will be fully trained and ready for implementation of the new rules. One of the most significant changes would divide the airspace into altitude corridors that separate aircraft flying over the river from those operating to and from local heliports or seaplane bases. (See Figure 2.)

This new exclusionary zone would be comprised of three components:

• It would establish a uniform “floor” for the Class B airspace over the Hudson River at 1,300 feet, which would also serve as the “ceiling” for the exclusionary zone. This removes some confusing complexity that currently exists.
• Between 1,300-2,000 feet, aircraft will operate in the Class B airspace under visual flight rules but under positive air traffic control and communicate with controllers on the appropriate air traffic frequency.
• Below 1,300 feet, aircraft must use a single common radio frequency. Mandatory routes for aircraft flying up and down the river will require them to favor the “right side” of the river (i.e. the east side for northbound traffic and the west side for southbound traffic) to provide horizontal separation as well.
• Coordination of traffic and handoffs between Air Traffic Controllers at the Teterboro tower, Newark tower, and radar control will be improved.

The new rules will mandate that pilots use two specific radio frequencies – one for the Hudson River and the other for the East River. It mandates speeds of 140 knots or less and the use of anti-collision lights and landing lights in the VFR routes. The rules would also require pilots to announce their position when they reach various points up and down the river. Pilots would also be required to have charts available in the aircraft and to be familiar with and comply with the airspace rules.

The FAA also intends to propose standardized procedures for fixed-wing aircraft leaving Teterboro to enter either the Class B airspace or the exclusionary zone. The proposal would require that before an aircraft planning to enter the Class B airspace takes off, Teterboro controllers would request approval from the Newark tower for the aircraft to climb to 1,500 feet. Aircraft from Teterboro that want to enter the VFR flyway would be directed by air traffic control to fly a special route over the George Washington Bridge, which would allow them to enter the Hudson River airspace in a much less congested area.

The FAA expects the expedited rulemaking covering these issues to be completed, and have all pilot and controller training completed in time for publication of new charts and new rules by November 19^th.

The effort with New York airspace has wider implications for the national airspace system. As we implement these changes in the New York airspace and have an opportunity to analyze their effectiveness, the FAA intends to examine the other major metropolitan areas and congested corridors for similar airspace and operational risks to see if such procedures would be appropriate elsewhere. We expect this larger effort to carry well into next year.

Mr. Chairman, Ranking Member Petri, Members of the Subcommittee, this concludes my prepared remarks. I look forward to answering any questions that you may have.

STATEMENT OF

HANK KRAKOWSKI,
CHIEF OPERATING OFFICER,
AIR TRAFFIC ORGANIZATION,
FEDERAL AVIATION ADMINISTRATION,

BEFORE THE

SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION,
SUBCOMMITTEE ON AVIATION OPERATIONS, SAFETY, AND SECURITY,

ON

AIR TRAFFIC CONTROL MODERNIZATION. 

MARCH 25, 2009.

Chairman Dorgan, Senator DeMint, Members of the Subcommittee:

Thank you for inviting me here today to discuss the current state of the Federal Aviation Administration’s (FAA) efforts on air traffic control modernization.  We have recently made some great strides in this area, and I am happy to report that in recognition of that, the Government Accountability Office (GAO) recently removed the FAA’s air traffic control modernization program from its High Risk List, its biennial update of federal programs, policies, and operations that are at “high risk” for waste, fraud, abuse, and mismanagement or in need of broad-based transformation.

The GAO added FAA air traffic control modernization to the High Risk List in 1995 due to cost overruns, schedule delays, and performance shortfalls in the FAA attempts to modernize its air traffic control system.  However, the GAO has found that the FAA is making progress in “addressing most of the root cause of its past problems.”  The GAO concluded that the FAA's efforts “have yielded results, including deploying new systems across the country and incurring fewer cost overruns.” 

As positive as this news is, we are not resting on our laurels.  As you know, at the heart of the FAA’s modernization is the Next Generation Air Transportation System (NextGen).  NextGen is a wide-ranging transformation of the entire national air transportation system to meet future demand and support the economic viability of the system while reducing delays, improving safety, and protecting the environment.  NextGen will change the way the system operates – reducing congestion, noise, and emissions, expanding capacity and improving the passenger experience.  NextGen is a complex, multilayered, evolutionary process of developing and implementing new technologies and procedures.  NextGen is not a single piece of equipment or a program or a system that will instantaneously transform the air transportation system.  NextGen is an evolutionary process, and existing systems must be sustained as we transition.  NextGen builds on legacy systems to increase capability in today’s National Airspace System (NAS), adds new performance-based procedures and routes, and ultimately delivers programs that transform the NAS.  NextGen takes advantage of new technology that is similarly being used to transform our personal lives and the way we do business, such as GPS, analog-to-digital, and network to network data sharing.

NextGen goals will be realized through the development of aviation-specific applications for existing, widely-used technologies.  They will also be realized through the fostering of technological innovation in areas such as weather forecasting, data networking, and digital communications.  Hand in hand with state-of-the-art technology will be new airport infrastructure and new procedures, including the shift of certain decision-making tools and accompanying responsibility from the ground to the cockpit.

As it is implemented, NextGen will gradually allow aircraft to safely fly more closely together on more direct routes, reducing delays, and providing benefits for the environment and the economy through reductions in carbon emissions, fuel consumption, and noise.

Defining NextGen:  The Need

Although it is extremely safe, and staffed by a capable, dedicated workforce, our current air traffic control system is not scalable or flexible enough to keep up with future demand.  Our future preeminence as a nation in air transportation is not assured.  In addition to improving efficiency and creating additional capacity, NextGen is needed to provide corresponding enhancements to safety and environmental performance.  It will bring to air transportation the same twenty-first century processes that give operations in other industries greater reliability, flexibility, and predictability.

Even in the face of falling demand and reduced capacity, we’ve seen congestion continue in our busiest airspace and airports.  In February 2008, there were 1,171,721 operations, while in February 2009, there were 1,040,150 operations.  That’s a reduction of over 11 percent.  Still, while traffic is down overall, our congested airspace in New York/New Jersey/Philadelphia has seen only about a 5.5% reduction in traffic from last year to this year.

We know that we must be poised to handle future demand that will surely return as the nation’s economy improves.  In fact, the aviation sector will be an important factor in the nation’s economic recovery.  The FAA estimates that in 2006, civil aviation accounted for 11 million jobs and represented 5.6% of the Gross Domestic Product; and, according to the FAA's calculations using U.S. International Trade Commission's reported trade data statistics, at $61 billion, aerospace products and parts contributed more to the positive balance of trade than any other sector - $32 billion more than the next highest contributor.

NextGen must also help manage the constraints on the air transportation system from the environmental impacts of aircraft noise and emissions and concerns about energy usage.  Increased efficiency with NextGen operations will lead to reduced fuel consumption resulting in lower carbon emissions.  NextGen investments in engine and airframe design and alternative fuels will produce the changes needed to reduce the environmental impact of aviation.

NextGen will also increase the safety of an already exceedingly safe system.  NextGen further enables FAA’s transition from traditional forensic investigations of accidents and incidents to a prognostic approach to improving safety.  NextGen promotes the open exchange of pertinent safety information to continuously improve aviation safety.

Benefits of NextGen

NextGen is reaping the benefits originated under the Operational Evolution Plan (OEP).  Communities, airports, and the FAA continue to work together to build new runways, which provide significant capacity and operational improvements.  In Fiscal Year 2009, four runway projects have been commissioned.  On November 20th, three major new runways opened:  at Seattle-Tacoma, Washington Dulles, and Chicago O’Hare International Airports.  The Seattle runway is expected to cut local delays in half by increasing capacity in bad weather by 60 percent, while the new runway at Dulles will provide capacity for an additional 100,000 annual operations.  The new Chicago runway, which added capacity for an additional 52,300 annual operations, is a part of the greater O'Hare Modernization Program (OMP) that will reconfigure the airport's intersecting runways into a more modern, parallel layout.  The OMP will substantially reduce delays in all weather conditions and increase capacity at the airfield, allowing O'Hare to meet the region's aviation needs well into the future.  On February 12, a runway extension at Philadelphia was completed, helping reduce delays at the airport. Looking forward for the next three years, new runways will open at Charlotte and Chicago O’Hare.  Eleven other runway projects are in the planning or environmental stage at OEP airports through 2018. 

While airfield improvements offer significant capacity increases, they alone are not enough to address current problems at certain airports, or the growth in demand we expect in the future.  New technology and procedures can help us gain extra use from existing runways.

Today, capacity for closely spaced parallel runway operations (CSPO) is dramatically reduced in poor visibility conditions.  We are working on capabilities that allow for continued use of those runways in low visibility conditions by providing precise path assignments that provide safe separation between aircraft assigned on parallel paths, restoring capacity and reducing delays throughout the system.  In November 2008, we published a national order that allows us to safely reduce separation between aircraft approaching parallel runways at Boston, Cleveland, Philadelphia, St. Louis and Seattle.  In good visibility Seattle’s pair of parallel runways, together, could handle roughly 60 operations per hour; poor visibility conditions cut that rate in half.  Even in poor visibility, the new order now safely allows a rate of about 52 operations per hour, a significant improvement for the airport and its users.  We are beginning to see similar benefits in Boston.

This order is a first step in a phased approach for safely increasing the use of CSPOs through a combination of procedural changes and new ground and aircraft equipment.  Down the road, new rules for CSPOs could give airports more design flexibility so that they can safely build runways more closely together, increasing their capacity within their existing boundaries, providing better service to their communities without requiring additional land.

Performance-based navigation is another building block for NextGen which we are accelerating with cooperation from industry.  Performance-based routes and procedures result in shorter distances flown, which add up to both fuel and time savings.  Fuel savings equate to reduced emissions, enhancing environmental performance.  Safety is increased as air traffic operations become more predictable. Performance-based navigation includes Area Navigation (RNAV) and Required Navigation Procedures (RNP), which allow equipped aircraft to fly more direct and precise paths, reducing flight time and fuel use, as well as localizer performance with vertical guidance (LPV) procedures, which can increase access to airports, especially in low visibility conditions.

Advances in performance-based procedures and routes allow for optimal use of airspace.  The FAA maximizes the use of airspace, especially in congested areas, through targeted airspace and procedures enhancements.  Continuing work in the New York area includes integration of RNAV procedures, relocation and expansion of airways, airspace reconfiguration, and creation of optimal descent procedures.  In the Chicago area, the FAA is adding departure routes and changing procedures to allow for triple arrivals.  In southern Nevada, the FAA is optimizing existing airports and airspace.  Houston will also see additional departure routes and arrival procedures, along with improved procedures to avoid severe weather.

Operators like Southwest Airlines recognize the value of performance-based navigation.  The airline made the business decision early last year to equip its entire fleet for RNAV and RNP procedures. The company envisions building a network of RNP routes for their system.  Southwest believes its $175 million investment can be recouped within the next three to five years because of the operational efficiencies RNP offers.  We are currently working with Southwest on a pilot project to build RNAV/RNP routes between Texas’ Dallas Love Field and Houston Hobby airports.

Today, more than three-quarters of commercial aircraft are equipped for RNAV, and almost half of these are equipped for RNP precision procedures.  Likewise, more than 20,000 aircraft are equipped for LPVs.  This level of equipage provides an excellent opportunity for the aviation community to use what it already has to produce ever-greater benefits.  FAA has responded:  last year the agency published more than 600 performance-based navigation procedures and routes, versus our goal of almost 400.  The FAA plans to keep up this pace each year for the next four years.

Because the realization of NextGen benefits is integrally linked to how quickly the operators equip their aircraft, it is imperative that the FAA work closely with industry on NextGen deployment.  As such, the FAA has established a NextGen Implementation Task Force with RTCA, an industry association that serves as a federal advisory committee.  The task force will provide recommendations on how to move forward together on implementation. FAA’s governing principles for accelerating equipage, published in the January 2009 FAA’s NextGen Implementation Plan, provide a starting point for this work.  These principles focus on mitigating the risk for early adopters of NextGen avionics, while providing the maximum operational benefits in the airspace where they’re most needed.  They also focus on international interoperability, and incentivizing the equipage of aircraft that meet evolving environmental standards.  The Task Force will deliver recommendations to the FAA in August 2009.

Our current national airspace system is safer than it has ever been.  However, new means are required to ensure this remains the case as we transform the NAS.  NextGen will continue that trend in the face of increasing traffic and the introduction of very light jets, unmanned aerial vehicles, and commercial space flights.  To continue to minimize risk as we introduce a wave of new systems and procedures over the next decade, the aviation community will continue its move to safety management systems and other aspects of proactive management, where trends are analyzed to uncover problems early on.  This allows preventive measures to be put in place before any accidents can occur. 

An important part of NAS modernization, the FAA’s Aviation Safety and Information Analysis and Sharing program (ASIAS), provides a suite of tools that extract relevant knowledge from large amounts of disparate safety information.  The FAA is partnering with NASA and major airlines for ASIAS, which helps FAA and our industry partners to monitor the effectiveness of safety enhancements.  In use today, ASIAS will ensure that the operational capabilities that produce capacity, efficiency and environmental benefits are first and foremost inherently safe.  ASIAS has already demonstrated the ability to measure the performance of safety solutions to known problems, such as Loss of Control, Controlled Flight Into Terrain, Runway Incursion, Approach, and Landing Accident Reduction.  Additionally, ASIAS has demonstrated the ability to detect new safety issues, such as terrain avoidance warning system alerts (TAWS) at mountainous terrain airports, and to identify solutions that have the potential to virtually eliminate these threats.  Between now and fiscal year 2013, the FAA intends to increase the number of databases ASIAS can access; expand ASIAS to include maintenance/air traffic information; increase membership by adding regional air carriers; increase community stakeholders to include general aviation, helicopter and military; and increase the automated search capabilities.

The primary environmental and energy issues that will significantly influence the future capacity and flexibility of the NAS are aircraft noise, air quality, global climate effects, energy availability, and water quality.  Aviation accounts for approximately three percent of direct greenhouse gas emissions, and national and international concerns about climate impacts could constrain the industry in the future, if not properly addressed.  An environmental management system approach will be used to integrate all environmental and energy considerations into core NextGen business and operational strategies. 

In 2009, we are moving forward on a research consortium called Continuous Low Emissions, Energy and Noise (CLEEN), which will allow us to work with industry to accelerate the maturation of technology that will lower energy, emissions and noise.  CLEEN also seeks to advance renewable alternative fuels for aviation.  These fuels not only improve air quality and reduce life cycle greenhouse emissions, but also enhance energy security and supplies.  FAA helped form – and is an active participant in – the Commercial Aviation Alternative Fuels Initiative, or CAAFI.  Alternative fuels will be the “game changer” technology that gets us closer to carbon neutrality.  Significant deliverables in the FY09-13 period include demonstrations of clean and quiet aircraft technologies that can be transitioned into new products and used to retrofit existing products, approval of generic renewable fuels for aviation, and models and guidance to improve our ability to quantify environmental costs and benefits and to optimize solutions, including those to address CO2 and non-CO2 aviation climate impacts.

Current Status

FAA is working closely with all aspects of the aviation community to make NextGen a reality sooner rather than later.  We are also leveraging the capabilities of our legacy systems to improve operations.  We’re partnering with several of the nation’s air carriers for trials and demonstrations; we’re engaging with universities like Embry Riddle.  We’re working with pilots, dispatchers, and controllers on NextGen integration and development to achieve balance in the safety and efficiency design of NextGen.  The FAA has established an integrated demonstration capability in Florida where, working with a wide range of government, university and industry partners, we are evaluating NextGen technologies.  We’re working with airport authorities, manufacturers and with government bodies and industry from around the world.  We are collaborating with Joint Planning and Development Office (JPDO) Working Groups, RTCA, and other industry groups to integrate stakeholder requirements into government commitments.  

Moreover, this past year, through the efforts of the JPDO, we have seen the contributions to NextGen resulting from cross-department and cross-agency cooperation increase significantly.  Through the cross-agency support provided by the JPDO and its Senior Policy Committee, we are collaborating with the Department of Transportation (DOT), the Department of Defense (DoD), the Department of Commerce (Commerce), the Department of Homeland Security (DHS), and the National Aeronautics and Space Administration (NASA).  Some of our collaborations have resulted in:

• DoD established a division at JPDO to work on efficient and secure information sharing;
• The Departments of Commerce, Defense and the FAA have collaborated to deliver the first NextGen weather capability in 2013; and
• JPDO conceived and facilitated the formation of Research Transition Teams to further the effective transition of research from NASA to implementation in the FAA.

The FAA officially began its development of NextGen in fiscal year 2007 by identifying and funding two transformational programs – Automatic Dependent Surveillance – Broadcast (ADS-B) and System Wide Information Management (SWIM).  ADS-B is a key component of NextGen that will move air traffic control from a system based on radar to one that uses satellite-derived aircraft location data.  In addition to improved safety with traffic, weather, and flight information, the system also promises greater efficiency and flexibility for the national airspace system. Aircraft transponders receive GPS signals and use them to determine the aircraft’s precise position in the sky, which is combined with other data and broadcast out to other aircraft and air traffic controllers.

ADS-B is surveillance, like radar, but offers more precision and additional services, such as weather and traffic information.  ADS-B provides air traffic controllers and pilots with much more accurate information to help keep aircraft safely separated in the sky and on runways. When properly equipped with ADS-B, both pilots and controllers will, for the very first time, see the same real-time displays of air traffic, thereby substantially improving safety. 

NextGen transformational programs made significant advances over the past year. ADS-B essential services have been deployed in southern Florida and are being deployed in the Gulf of Mexico, where we have never had radar coverage.  In December, FAA achieved its In-Service Decision for ADS-B essential services in southern Florida.  Achievement of this major milestone clears the way for national deployment of broadcast services.  The National Aeronautics Association recognized ADS-B last year by presenting the ADS-B team with its Collier Trophy.  This award is given yearly for “the greatest achievement in aeronautics or astronautics in America with respect to improving the performance, efficiency and safety of air or space vehicles.”  The Collier award is generally recognized as the epitome of aviation innovation and excellence.

The SWIM program, Data Communications, and NAS Voice Switch achieved major acquisition milestones, and NextGen Network Enabled Weather (NNEW) conducted demonstrations of the integration of weather data into automated decision support tools.  This is a necessary step in the realization of improved management of weather in the NAS.

An updated FAA NextGen Implementation Plan was published in January 2009.  This edition of the plan focuses on answering five fundamental questions: What does NextGen look like in 2018; what aircraft avionics are needed to support operations in 2018; what benefits will be delivered by 2018; what is the FAA specifically committed to deploy in the near-term that makes the most of existing resources; and what activities are underway to support future capabilities?

While the focus of the FAA’s NextGen Implementation Plan is on the mid-term (through 2018), the plan, coupled with the NAS Enterprise Architecture, provides a picture of near-term (2009-2013) deliverables.  FAA’s near-term NextGen implementation efforts are targeted across three broad areas: airfield development, air traffic operations, and aircraft capabilities. Together, these efforts will increase capacity and operational efficiency, enhance safety, and improve our environmental performance.  We are moving forward with a dual-pronged approach: maximizing the use of untapped capabilities in today’s aircraft and ground infrastructure, while working aggressively to develop and deploy new systems and procedures that will form a foundation for more transformative capabilities that will be delivered in the mid-term.  We believe this approach allows both government and industry to extract the greatest value from existing investments, while positioning the industry to gain exponential benefits in the mid-term and beyond.

From that first investment of $109 million in 2007, and supported by sound evaluation and planning, FAA funding for NextGen grew to $202 million in fiscal year 2008 and $688 million is anticipated this fiscal year.  The Administration’s fiscal year 2010 budget includes approximately $800 million for NextGen. The January 2009 NAS Enterprise Architecture and NextGen Implementation Plan support these funding numbers. 

Along those lines, I would like to thank this Committee and the Congress for the additional $200 million in economic recovery funding that will be used for repairing and upgrading our air traffic facilities and equipment.  This will go a long way to improving our buildings and providing our workforce with the tools they need to do their jobs well.

We do have other interim efforts to enhance safety and operations, such as Runway Status Lights (RWSL).  The RWSL system integrates airport lighting equipment with approach and surface surveillance systems to provide a visual signal to pilots and vehicle operators indicating that it is unsafe to enter/cross or begin takeoff on a runway.  The system is fully automated based on inputs from surface and terminal surveillance systems.  Airport surveillance sensor inputs are processed through safety logic that commands in-pavement lights to illuminate red when there is traffic on or approaching the runway.

The RWSLs will activate either when it is unsafe to enter a runway from a taxiway (referred to as runway entrance lighting or RELs) or when it is unsafe to take off from a runway (called takeoff hold lighting or THLs).  For example, if an aircraft is landing or departing, the RELs will illuminate indicating it is unsafe for an aircraft or vehicle to go onto that runway from a taxiway.  Another example is if an aircraft starts to cross a runway when there is an aircraft ready for departure on that runway, the THLs will illuminate indicating to the pilot that it is unsafe to continue the departure.  Both RELs and THLs will automatically turn off when the system determines it to be safe.  RWSLs are red lights only; there are no green lights in RWSLs.

We currently have RWSL systems installed, one at San Diego International Airport, and the other at Dallas/Ft. Worth International Airport.  Installation of RWSL systems is underway at Los Angeles International Airport and at Boston Logan International Airport.  The FAA is scheduled to install RWSL systems at 18 other airports by 2011.  In addition, we are continuing to test additional runway lights:  in Boston we are testing Runway Intersection Lighting (RIL) to guard runway intersections; and at Dallas/Ft. Worth, we are testing the enhanced Final Approach Runway Occupancy Signal (eFAROS) to alert landing traffic that a runway is occupied. 

Labor Issues

I know that this Committee has always been interested in how FAA has interacted with our labor unions, and I would like to address that briefly.  In his confirmation hearing before this Committee, Secretary LaHood made it very clear that resolving labor disputes was one of his top priorities for the FAA, and that he was seeking to fill the FAA Administrator position with someone who had the people skills to resolve our outstanding issues with the National Air Traffic Controllers Association (NATCA).  As someone who has sat on both sides of the labor debate, I fully support the Secretary’s priority on this.

Our controllers, indeed, our entire workforce, are our most valuable assets in ensuring the safety of the traveling public.  As such, we have included controllers in all phases of NextGen so far.  Controller input has come from individual controllers who have been invited to participate in NextGen development, though they were not participating as official NATCA representatives.  NATCA does have a seat on the NextGen Management Board, the governance structure that we originally put in place as our framework for achieving NextGen.  I look forward to moving ahead towards a resolution of our differences.  These have been challenging times for us, and I want to commend all the hard work that has occurred on both sides. 

Chairman Dorgan, Senator DeMint, Members of the Subcommittee, this concludes my prepared remarks.  Thank you again for inviting me here today to discuss FAA’s air traffic modernization program.  I would be happy to answer any questions that you might have.

STATEMENT OF

UNDER SECRETARY FOR POLICY
U.S. DEPARTMENT OF TRANSPORTATION
ROY KIENITZ

BEFORE THE

COMMITTEE ON WAYS AND MEANS
SUBCOMMITTEE ON SELECT REVENUE MEASURES
U.S. HOUSE OF REPRESENTATIVES

JULY 23, 2009

Chairman Neal, Ranking Member Tiberi, and Members of the Subcommittee:

Thank you for inviting me to appear before you today to discuss long-term financing options for the Highway Trust Fund.

I appeared before you a month ago to discuss the short-run problems facing the Highway Trust Fund; today I would like to focus more on a set of guiding principles for evaluating the long-term options for funding the Highway Trust Fund. 

The principles that should be reflected in a long-term plan for funding the surface transportation system begin with our goals for the transportation system.  We want a transportation system that will enhance the Nation’s economic competitiveness, improve transportation safety, improve energy efficiency, and enhance livability.  We need a transportation funding system that will support the achievement of these goals.

In the long run, one of our key goals is to increase the economic competitiveness of our Nation by investing more aggressively in our future.  Just as past generations built the transcontinental railroad, the Erie Canal, and the Interstate Highway System, so our generation must build the transportation infrastructure that our Nation will need in the 21^st Century.  Enhancing our economic competitiveness requires a transportation system that reduces costs and is more reliable for both passengers and businesses.  We need a transportation system that achieves a state of good repair and that achieves a high level of performance.  Increasing the economic competitiveness of our transportation system will also require us to target our investment more carefully by using the best analytical tools available. 

We also need to make sure that our investment allows us to begin making progress on halting the seemingly inexorable growth of greenhouse gases in our atmosphere, and that means reducing the carbon footprint of the Nation’s transportation system.  About 28 percent of the greenhouse gases generated in the United States are attributable to transportation, so we need to build a more energy-efficient transportation system.  We need to build a sustainable model for transportation in the 21^st Century, built on cleaner energy and reduced environmental costs.

We also need to make sure that our transportation investment enhances the livability of our communities.  We need to build a transportation system that gives our citizens the choices they want – to get to their destinations by the transportation mode of their choice, whether that is driving, or public transportation, or bicycling, or walking.  When people choose public transportation, we need to make sure that intermodal connections are safe and easy – from transit to intercity rail, from transit to air, and from highways to transit.  We need to make sure that the transportation system doesn’t impose excessive external costs on our local communities.  We need to make sure that Americans, whether they live in urban areas or rural areas, have access to our bus, rail, and aviation systems that is cost-effective for users and society as a whole.  We need to integrate our planning processes for transportation, land use, and housing so that we build communities where our transportation systems and land use patterns are made for each other.

In order to achieve these goals, we need a system of transportation funding that is both adequate to address the needs of the Nation’s economy and sustainable with respect to changing economic circumstances.  Transportation patterns will change.  Prices of fuel will rise and fall.  New technologies will emerge.  We need a robust transportation funding system that can continue to generate the revenues we need in spite of changes in the environment within which the transportation system operates.

We also need a transportation funding system that is flexible with respect to the surface transportation needs it can support.  All the surface transportation modes make an important contribution to meeting the Nation’s surface transportation needs; we need a funding system that can meet the funding needs of all these modes.  We need to be able to invest in the kinds of transportation infrastructure that will meet the Nation’s objectives of safety, economic competitiveness, energy efficiency, and livability.  A transportation funding system that is restricted to funding only certain kinds of transportation cannot meet these needs efficiently.

ENSURING THE ADEQUACY OF SURFACE TRANSPORTATION FUNDING

The first principle for funding the surface transportation system is that the funding system be adequate to address the needs of the Nation’s economy.  There is considerable reason to believe that our current funding system is not adequate to our needs.   

In some respects, the nation’s inventory of roads, bridges, and transit systems has steadily improved.  Over the past ten years, we have expanded our highway network by more then 80,000 miles, enough to circle the globe more than three times, and the number of route-miles of transit systems has increased by 44,000 miles.  The percentage of miles traveled that is on highways in good condition has increased from 39 percent to 47 percent; the percentage of bridges that are structurally deficient or functionally obsolete has declined from 32 percent in 1998 to 27 percent in 2008, and the average condition of the Nation's transit buses has improved from 2.94 to 3.01 (3.0 = "fair").     

Still, there is much work to do. We need to bring our Nation’s highways, bridges, and transit systems up to a state of good repair, both to improve safety and to enhance economic competitiveness.  About 53 percent of highway miles traveled are on roads that are in less than “good” condition.  Almost 30 percent of our bridges are structurally deficient or functionally obsolete.  Almost 22 percent of our transit buses – and 32 percent of our transit rail cars – are over-age, while 76 percent of our transit bus facilities and 56 percent of our transit rail facilities are in less than good condition.  We don’t even know the condition of our railroads and ports, because we don’t gather any data on that in a systematic way. 

PROMOTING SUSTAINABILITY OF THE TRANSPORTATION FUNDING SYSTEM

The funding system for surface transportation must not only be adequate; it must also be able to sustain the appropriate level of funding in the presence of fuel price and technology changes.  Serious concerns have been raised about the ability of the fuel tax to support even current funding requirements.  The National Surface Transportation Infrastructure Financing Commission, authorized in SAFETEA-LU by this Committee, concluded that improvements in fuel economy threaten the sustainability of transport funding.   The Department of Energy forecasts that the average fuel economy of the U.S. vehicle fleet will rise from 20.4 miles per gallon (MPG) in 2009 to 28.9 mpg in 2030.  The Administration estimates that this will result in a stream of fuel tax revenues that grow in nominal terms but falls in real, inflation-adjusted terms.  The Financing Commission, however, believes that this forecast could well understate the actual increase in fuel efficiency.  If fuel prices increase more sharply than expected, or if vehicle technologies (such as alternative fuels and battery technologies) change more quickly than expected, or if concerns about global warming become more compelling, efforts to improve fuel efficiency could reduce fuel tax revenues faster than currently forecast.  The revenue generated by the fuel tax is vulnerable to these changes in fuel prices, technology, and environmental concerns.  We will probably need a more diverse, flexible funding system to enhance the sustainability of our surface transportation funding system.

THE FLEXIBILITY OF THE TRANSPORTATION FUNDING SYSTEM

Meeting the Nation’s goals of improving economic competitiveness, increasing fuel efficiency, and enhancing safety and livability will require a surface transportation funding system that is adaptable to whatever modes of transportation are best suited to meeting these objectives.  We need to be able to direct infrastructure investment toward rail and port and bicycle projects as well as highway and transit projects.  One weakness of the fuel tax is that, because it is paid by only one mode of transportation, it inevitably creates pressures to spend revenues only on that mode of transportation.  While it can be argued that expenditures on other modes divert traffic from highways and thus benefit highway users, and that expenditures on less environmentally damaging transportation modes reduce the environmental impact of the transportation system, the benefits of these policies are difficult to quantify and therefore will inevitably be debated.  Looking ahead, we will need to consider how to make our system for financing of transportation investment better suited to meeting the Nation’s objectives of economic competitiveness, energy efficiency, and livability.

THE FUNDING SYSTEM MUST SUPPORT IMPORTANT SURFACE TRANSPORTATION REFORMS

Our approach to achieving these national transportation goals of economic competitiveness, safety, energy efficiency, and livability relies on several key strategies, and it is important for our funding system to support these strategies.

First, because economic competitiveness is such a compelling objective for our surface transportation system, it is important for that system to be designed to address national needs for an efficient 21^st Century economy.  When supply chains reach across America, it is important to have a funding system that provides national funding to address national needs as well as local funding to address local needs.

Second, improving the Nation’s economic competitiveness requires us to achieve our transportation goals with maximum cost effectiveness, which in turn requires us to draw upon the best available economic analysis to guide our transportation infrastructure investment decisions.  In the Transportation Investment Generating Economic Recovery (TIGER) Discretionary Grants and High-Speed Rail portions of our Recovery Act programs, we have called upon grant applicants to provide benefit-cost analyses of their proposed investments.  The systematic analysis of all costs and benefits of an investment project that incorporated important factors such as travel time and mobility, safety, and environmental impacts would help decision makers identify projects that generate the greatest value for society.  For projects designed to maintain or rebuild existing infrastructure, we will be calling on states and local authorities to make greater use of asset management techniques to reduce the costs of maintaining their infrastructure in a state of good repair over the long term.  If we invest more efficiently, we can get more from every dollar that we invest – more economic productivity, more safety benefits, more accessibility, more sustainability, and more livable communities.  

Third, we need to improve accountability by making greater use of performance measures for our transportation system.  When we invest tax dollars in transportation infrastructure, people have a right to know what performance they can expect from that investment.  We need to measure how well our transportation system is performing and report back on whether we are meeting our performance objectives.  We need to demonstrate that we are using the public’s tax dollars responsibly and that people are getting the performance improvements they paid for.

Finally, we want our investments in the surface transportation system and the transportation system more broadly to incorporate the latest technologies, and to take advantage of the opportunities that new technologies present to us.  We need to make greater use of Intelligent Transportation Systems, both to reduce highway congestion and to improve safety in all our modes.  We will move promptly to implement the positive train control requirements in last year’s Rail Safety Improvement Act, and we will provide the resources necessary to deploy the Next Generation Air Transportation System.  And, of course, new technology will be the basis of more energy-efficient and safer cars, trucks, and other vehicles.

Thank you for the opportunity to appear before you today to discuss long-term funding options for the Highway Trust Fund.  I believe that this challenge offers us an opportunity to chart a new course for transportation infrastructure investment in the United States over the years to come.  I look forward to working with Congress and transportation stakeholders to make this a reality.

I will be pleased to respond to your questions.

STATEMENT OF

UNDER SECRETARY FOR POLICY
U.S. DEPARTMENT OF TRANSPORTATION
ROY KIENITZ

BEFORE THE

COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE
SUBCOMMITTEE ON HIGHWAYS AND TRANSIT
U.S. HOUSE OF REPRESENTATIVES

JULY 16, 2009

Chairman DeFazio, Ranking Member Duncan, and Members of the Subcommittee:

Thank you for inviting me to appear before you today to discuss the Importance of a Long-Term Surface Transportation Authorization in Sustaining Economic Recovery.

The importance of the surface transportation system to the long-term health of the American economy has never been in dispute.  A wide range of studies have been conducted on the macroeconomic effects of transportation infrastructure investment.  These studies inevitably reach somewhat divergent conclusions, but certain common themes emerge.

First, transportation infrastructure investment generates major short-term effects on employment and the economy:

• It generates direct economic effects by boosting employment and incomes at businesses hired to construct new highway, transit, and other transportation infrastructure.
• Infrastructure investment also increases employment and economic activity indirectly by increasing the demand for construction materials and equipment such as concrete, steel, asphalt, and paving machines, as well as business services purchased by construction companies.
• Finally, the additional income earned by construction workers will be re-spent on consumer goods and services, inducing higher incomes in the consumer goods and services industries.

Second, investment in transportation infrastructure has important long-term effects.  Carefully planned transportation infrastructure investment permanently expands the productive capital stock of the economy, increasing output and income per worker for decades to come.  In addition, these improvements improve the quality of life of American citizens by reducing transportation costs, providing easier access to markets, reducing congestion, and improving safety.

Focusing first on the short-term effects of surface transportation infrastructure investment, the Council of Economic Advisers has estimated that each billion dollars of transportation infrastructure investment generates thousands of jobs.  Some have raised concerns that these jobs will be generated too slowly to be effective in combating the recession.  Yet it has been clear even before the Obama Administration took office that one of the singular features of this recession was that it would be unusually long.  Global Insight, one of the leading macroeconomic forecasting firms, forecast in early January, before President Obama was inaugurated, that the recession would continue through the middle of this year and that unemployment would continue to rise until the first half of 2010.  While transportation infrastructure investment spends out more slowly than some other forms of stimulus (such as unemployment insurance and revenue sharing with States), the expected duration of this recession and length of time it will take for the labor market to fully recover means that we will still need the job-generating effects of infrastructure investment even if that investment takes place in 2010 or 2011.

The long-term effects of transportation infrastructure investment have been the subject of a wide range of studies over the past 20 years.  One of the most thorough studies of these effects was a 2003 study by Global Insight, which looked at the effects of an increase in highway and transit expenditures.  It concluded that, for every billion dollars in highway and transit expenditures,

• Gross Domestic Product (GDP) would increase by $2.188 billion,
• Disposable income would rise by $977 million,
• Consumption would rise by $742 million, and
• Investment (other than the transportation investment itself) would rise by $162 million.
• Federal tax revenues would increase by $770 million, and a substantial portion of these revenues would be passed along to State and local governments as grants to support transportation investments and other purposes.  The total increase in State and local revenues, including Federal grants as well as increases in their own tax revenues, would be $1.059 billion.
• Finally, the productivity of the economy – that is, the potential GDP – would rise by $551 million per year – a permanent dividend from the investment in improved productivity.

Earlier studies had yielded somewhat different but broadly comparable results.  A 1998 study by Ishaq Nadiri and Theofanis Mamuneas for the Federal Highway Administration found that a $1 billion investment in transportation infrastructure generated an annual increase in productivity of $419 million.  A series of studies by Mamuneas has found that, while the rate of return to transportation infrastructure investments, in terms of increased output in the economy, has declined since the 1950s and 1960s, it is still over 18 percent.

Transportation plays a particularly critical role in metropolitan areas, the primary engines of the Nation’s economic growth.  Three-quarters of the Nation’s GDP is generated in our top 100 metropolitan areas.  To keep these metro areas productive, we need to be able to get people to work, get products to markets, and get customers to businesses in a reasonable amount of time.  Case studies of transportation costs in two cities – Chicago and Philadelphia – have shown that a 10-percent reduction in travel times in these two cities would reduce business costs by $980 million and $240 million, respectively.

By improving transportation safety, appropriate infrastructure investment can not only reduce the toll of crashes on individuals and families, but can lessen the burden of crashes to society.  Highway crashes cost the nation an estimated $230 billion in 2000.  This includes lost productivity, property damage, and medical expenses, and 21 percent of this cost is paid by public revenues, equal to a $200 per household tax.  By incorporating data-driven, integrated safety design and technology (such as rumble strips, median barriers, and left turn lanes), infrastructure investment can reduce the number, and cost, of highway crashes. 

Moreover, the competitiveness of our economy in the international marketplace depends on how efficiently we can get parts to our suppliers and finished products to markets.  Manufacturers benefit from economies of scale that arise from concentrating production in a small number of plants, but unlocking these benefits requires an efficient transportation system able to efficiently move parts and materials produced elsewhere, and to distribute products to geographically scattered customers in domestic and international markets.  Similarly, mining and agricultural production often takes place great distances from where consumers live.  Moving coal and ore and grain to market requires an efficient transportation network. 

Unfortunately, our current surface transportation system is not meeting the Nation’s economic needs.  The performance of the Nation’s highway system has clearly declined over the past decade.  The percentage of vehicle-miles traveled under congested conditions rose from an average of 24.9 percent in 1997 to 28.6 percent in 2006.  This resulted in an increase in hours delayed from 2.7 billion in 1997 to 4.2 billion in 2007, and an increase in the total cost to drivers from $53.6 billion in 1997 to $87.2 billion in 2007.  Moreover, the condition of our Nation’s highways, bridges, and transit systems falls well short of a state of good repair.  About 53 percent of highway vehicle-miles traveled are on roads that are in less than “good” condition.  Almost 30 percent of our bridges are structurally deficient or functionally obsolete.  Almost 22 percent of our transit buses – and 32 percent of our transit rail cars – are over-age, while 78 percent of our transit bus maintenance facilities and 70 percent of our transit rail maintenance facilities are in less than good condition.  We don’t even know what the condition of our railroads and ports is, because we don’t gather data on that in a systematic way.  We can’t have a first-class economy built on a second-class transportation system.

Nor is increasing our economic competitiveness the only reason for addressing our surface transportation needs.  We need to begin making progress on halting the seemingly inexorable growth of greenhouse gases in our atmosphere, and that means reducing the carbon footprint of the Nation’s transportation system.  About 28 percent of the greenhouse gases generated in the United States are attributable to transportation, so we need to build a more energy-efficient transportation system.  We need an efficient financing system for transportation projects that takes into account all of the costs and benefits to society of these investments, and which directs funding to the modes that can generate the greatest net benefits for society.    We need to create the proper incentives for the introduction of energy-efficient cars and trucks into our highway vehicle fleet.  We need to build a sustainable model for transportation in the 21^st century, built on cleaner energy and reduced environmental costs.

At the same time, we need to make sure that our transportation system makes a more positive contribution to enhancing the livability of our communities.  We need to build a transportation system that gives our citizens the choices they want – to get to their destination by the transportation mode of their choice, whether that is driving, or public transportation, or bicycling, or walking.  When people choose public transportation, we need to make sure that intermodal connections are safe and easy – from transit to intercity rail, from transit to air, and from highways to transit.  We need to make sure that the transportation system doesn’t adversely affect local communities, either by generating unwanted noise or by blocking highway-rail grade crossings.  We need to make sure that our citizens, whether they live in urban areas or rural areas, have appropriate access to our bus, rail, and aviation systems.  We need to integrate our planning processes for transportation and land use so that we build communities where our transportation systems and land use planning are made for each other.

Finally, we want to take advantage of the opportunities that new technologies present to us.  We need to make greater use of Intelligent Transportation Systems, both to reduce highway congestion and to improve safety in all our modes.  We will move promptly to implement the positive train control requirements in last year’s Rail Safety Improvement Act, and we will provide the resources necessary to accelerate deployment of the Next Generation Air Transportation System.  And, of course, new technology will be the basis of more energy-efficient cars, trucks, and other vehicles.

At the same time that we expand the resources available for investment in our surface transportation system, we also need to effect fundamental reforms in how we plan and execute investment in the surface transportation system.  First, because national economic competitiveness is such a compelling objective for our surface transportation system, it is important for that system to be designed to address national needs for an efficient 21^st century economy.  The President proposed a National Infrastructure Bank to address those national infrastructure needs.  When supply chains reach across America, it is important to have a national vision that addresses national needs as well as local visions that address local needs.

Second, because of the need to invest in the full range of surface transportation infrastructure modes – highway, transit, rail, and water – we need to have a transportation financing system that can meet the needs of each of these modes.  The traditional trust fund approach to transportation funding has been essential in building the Interstate Highway System and expanding our network of transit systems.  But we need a more flexible funding system to meet the transportation needs of the 21^st century.  We need a funding system that can provide intermodal connections, including to ports and railroads.  The proposed National Infrastructure Bank would supplement the Highway Trust Fund and allow us to take a truly intermodal approach to funding the most compelling national needs across the surface transportation spectrum.

Third, if we are to focus our transportation infrastructure investment on improving the Nation’s economic competitiveness, we need to draw upon the best available economic analysis to guide our transportation infrastructure investment decisions.  In the TIGER Discretionary Grants and High-Speed Rail portions of our Recovery Act programs, we have called upon grant applicants to provide benefit-cost analyses of their proposed investments.  We recognize that economic analysis cannot measure all the benefits and costs of proposed infrastructure investments, but the systematic evaluation of all categories of benefits and costs provides us with a decisionmaking framework that allows all kinds of benefits and costs to be systematically evaluated and compared, whether they can be quantified or not.  For projects designed to maintain or rebuild existing infrastructure, we will be calling on State and local governments to make greater use of asset management techniques to reduce the costs of maintaining their infrastructure in a state of good repair over the long term.  If we invest more efficiently, we can get more from every dollar that we invest – more economic productivity, more economic development, more accessibility, more sustainability, and more livable communities.

Fourth, we need to improve accountability by making greater use of performance measures for our transportation system.  When we invest tax dollars in transportation infrastructure, people have a right to know what performance they can expect from that investment.  We need to measure how well our transportation system is performing and report back on whether we are meeting our performance objectives.  We need to demonstrate that we are using our tax dollars responsibly and that people are getting the performance improvements they paid for.

So I think there is little disagreement about the crucial role that transportation infrastructure investment plays in the Nation’s economic development.  We need a robust program of investment in transportation infrastructure to return our economy to health and to keep it growing.  Moreover, because transportation infrastructure investments take a long time to plan, engineer, and construct, we need a stable flow of Federal funding to ensure that the States and other infrastructure owners can make those investments.

Ever since the Interstate Highway System was authorized in 1956, we have recognized that the construction of transportation infrastructure is a long-term process, requiring extensive planning, engineering, and analysis before groundbreaking can begin.  Accordingly, we have structured the authorization process around a series of long-term authorizations for the highway and transit programs – typically, over the last couple of decades, six years for each authorization.  These long-term authorizations allow States, metropolitan planning organizations, and transit authorities the time they need to plan and develop their transportation infrastructure with a clear commitment of funding from their Federal partners.

The rationale for these long-term authorizations remains just as valid today as it was in 1956.  If anything, the time required to reach consensus among local stakeholders and complete required analyses has grown longer, rather than shorter, making long-term commitments of funding even more important.  We also need a long-term reauthorization to carry out the reforms in the surface transportation system that both this Committee and the President recognize as necessary.

There is widespread agreement that the level and focus of Federal transportation investment must address the needs of the surface transportation system more effectively.  However, the best way to achieve that goal at present is through an 18-month reauthorization that lays the groundwork for accountability and performance standards in a six-year reauthorization.

An 18-month reauthorization would allow the Federal government to implement a few targeted reforms in preparation for a six-year reauthorization when the economy begins to recover.  Moreover, it would allow Congress, the Executive Branch, the States, and other stakeholders adequate time to carefully consider and develop the complex policies that will be included in the full reauthorization.  It would also allow this time to be used to incorporate the valuable lessons from the innovations in transportation investment in the Recovery Act, such as the processes by which money is spent at the State and local levels, as well as the various geographic priorities for investment.

The Obama Administration shares with this Committee a strong belief in the importance of a long-term reauthorization of the surface transportation program.  We cannot achieve our goals without it.  But it needs to be the right kind of long-term reauthorization.  We cannot achieve our goals with the kind of reauthorization that we would likely be able to pass this year.  We therefore believe that the right strategy is to enact an 18-month reauthorization this year, and devote ourselves over the coming year to working out the details of a strong reauthorization that will serve this Nation for decades to come.

STATEMENT OF

ROY KIENITZ
UNDER SECRETARY OF POLICY
U.S. DEPARTMENT OF TRANSPORTATION

BEFORE THE
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION 
SUBCOMMITTEE ON SURFACE TRANSPORTATION AND MERCHANT
MARINE INFRASTRUCTURE, SAFETY, AND SECURITY
U.S. SENATE

HEARING ON

PIRACY ON THE HIGH SEAS: 
Protecting our Ships, Crews, and Passengers

May 5, 2009

Chairman Lautenberg, Ranking Member Thune, and Members of the Subcommittee:

I am pleased to have the opportunity to appear before you today to discuss the serious threat stemming from the ongoing piracy problem on the high seas.

Throughout 2008 and continuing into 2009, the global piracy situation has grown substantially worse – particularly in an ever-expanding area off the coast of Somalia, where more than 20,000 vessels transit the region each year.  The impact of piracy has been very significant but the American public has only recently been made more aware of the situation with the attacks on two American flag vessels, the MAERSK ALABAMA and the LIBERTY SUN (both of which were carrying food aid for Somalia.)

Acts of piracy threaten freedom of navigation and the flow of commerce.  Pirates frequently demand millions of dollars in ransom for the release of hostages, ships and cargoes.  Press reports indicate that in 2008, pirates received an estimated $30 million dollars in ransoms for the release of pirated vessels.  In 2008, 42 vessels were seized by pirates operating off the coast of Somalia.  Globally, 889 mariners were held hostage by pirates (815 in Somalia) as part of ransom demands.  The International Maritime Bureau (IMB) reports that in 2008, globally, 11 mariners were murdered by pirates and another 21 are missing and presumed dead.  The IMB also reported that during the same period, off the Horn of Africa, four mariners were killed and 14 are missing and presumed dead.

The vessels most vulnerable to piracy attacks are those traveling slowly (with limited speed capabilities) and with low freeboard – that is to say, there is not much height between the water and the deck level.  At any given time during the past nine months, more than a dozen vessels and their crews have been held hostage off the Somali coast.  Currently, 18 commercial ships are being held for ransom by pirates in Somalia, along with more than 300 crewmembers.  One reason for the success of piracy and ransom taking is that the government in Somalia is ineffective and this has enabled pirates to operate with virtual impunity. 

The Gulf of Aden, which links the Mediterranean Sea and the Suez Canal with the Indian Ocean, is one of the busiest shipping choke points in the world.  On average, 50 commercial vessels transit the Gulf daily.  Many of these vessels are potential targets.  More than 3.3 million barrels of oil pass through the Gulf of Aden every day, representing 4% of the world’s total daily production and 12% of all the oil transported by water daily around the world by sea.  In addition, numerous other cargoes and container freight pass through the Gulf daily. 

Approximately 80% of the vessels transiting the Gulf of Aden carry cargo destined to and from Europe, East Africa, South Asia, and the Far East.  However, a significant portion of cargoes is also destined to or from the United States.  In addition, U.S. citizens serve as crew or are passengers on vessels transiting the area.

On average, at least one U.S. commercial vessel transits the area each day. Many of these U.S.-flag vessels carry Department of Defense cargo bound for Operations Iraqi and Enduring Freedom.  U.S.-flag vessels transiting the region also carry humanitarian cargoes generated by the U.S. Agency for International Development (USAID) or international organizations to the Horn of Africa, including Djibouti and, Somalia and to other countries in East Africa or South Asia. 

As mentioned, piracy off the Horn of Africa significantly increased through 2008 and into 2009, with more than 150 attacks and 55 successful piracies.  The cost and disruption to the flow of commerce overall are significant.  Press reports indicate that, in addition to merchant mariners killed or presumed dead, hundreds, including American mariners, have been traumatized by being attacked and held hostage, and even by the uncertainties generated by the growing instability of the region. 

Ship owners and operators are also adversely affected by rising daily operating costs, due to increased insurance premiums and operational delays caused by longer transit times or diversions to avoid the area.  In many cases, there are additional costs related to transiting or circumventing the higher risk area.  This is particularly true where vessels are diverted around the Cape of Good Hope in an effort to avoid the Gulf of Aden altogether, which increases labor costs, fuel consumption and the carbon footprint of marine transportation.  Higher shipping costs also raise the costs of commodities for local populations. 

The United States has been a leader in promoting collaborative international action to combat the current piracy crisis.  Historically, it has been our nation’s long-standing policy to support freedom of the seas.  In July 2008, the United States took a leadership role in the United Nations fight against piracy.  This resulted in United Nations (UN) Security Council Resolution 1816, which authorized countries cooperating with the Transitional Federal Government (TFG) of Somalia, for which advance notification has been provided to the Secretary-General, to enter Somali territorial waters to repress piracy.  This was followed by additional Security Council Resolutions 1838 and 1846 in the fall of 2008.  In December 2008, the United States drafted UN Security Council Resolution 1851, which authorizes countries cooperating with the TFG of Somalia to enter Somali territory to repress piracy.  The Security Council subsequently, adopted this resolution.

UN Security Council Resolution 1851, also encouraged the establishment of an international cooperation mechanism -- known now as the Contact Group on Piracy off the Coast of Somalia (CGPCS).  The CGPCS has 28 nations as members, 6 international organization observers, with 7 additional countries pending requests to participate.[1]  The Department of State leads the United States participation in the CGPCS.  The CGPCS acts as a common point of contact between and among states, regional and international organizations on all aspects of combating piracy and armed robbery at sea off Somalia’s coast, and specifically includes outreach to the commercial maritime industry.  The CGPCS held plenary meetings in January at the United Nations in New York City and in Cairo in mid-March.  The CGPCS will meet again on May 29 in New York City.

The CGPCS established four working groups that are providing recommendations to the CGPCS.  Working Group #1 is addressing activities related to military and operational coordination and is chaired by the United Kingdom.  Working Group #2 is addressing judicial aspects of piracy and is chaired by Denmark.  The United States has the lead for Working Group #3, which focuses on shipping self-awareness and interaction with industry.  The Department of Transportation’s Maritime Administration (MARAD) and the Department of Homeland Security’s U.S. Coast Guard have been co-leading efforts with this Working Group.  Working Group #4 is tasked to offer recommendations to improve diplomatic and public information efforts and is chaired by Egypt.  The U.S. will propose on May 29 the creation of Working Group #5 to explore the feasibility of tracking and freezing the assets of pirates and those who support them.

The UN Security Council resolutions called for greater cooperation between governments and industry to reduce the incidence of piracy.  In January 2009, former Secretary of State Rice stated that, "Once a hostage situation develops, the stakes in military operations increase.  Consequently, an important part of counter-piracy efforts must be measured in enhancing self-defense capabilities of commercial vessels, increasing the odds of success against pirates until warships arrive."   This sentiment certainly still holds true today and we saw evidence of this in the highjacking of the MAERSK ALABAMA.

Because of its specialized knowledge, such as operation of our mobility sealift vessels, and established relationships with U.S. and international shipping, maritime unions, the marine insurance community and global maritime industry associations, MARAD has considerable experience in dealing with the diverse interests of the global maritime industry and is actively involved in the fight against piracy.  MARAD operates a fleet of Ready Reserve Force (RRF) vessels which have transited the Gulf of Aden region in support of Operations Iraqi and Enduring Freedom (OIF/OEF).  As OIF winds down, RRF vessels may be called upon to play a significant role again in support of the demobilization of forces, with a consequence of exposing the vessels and crews to threats from pirate attacks. 

Further, many vessels supported by MARAD’s Maritime Security Program (MSP), participate in the Agency’s Voluntary Intermodal Sealift Agreement (VISA) and transit the Gulf of Aden on a routine basis.  The MAERSK ALABAMA is one of the 60 vessels enrolled in the MSP.  MARAD also has oversight over government cargoes transiting the region – particularly food aid and military cargoes that are carried mainly aboard U.S.-flag commercial vessels transiting the Gulf.  Finally, as an interface between U.S. maritime labor and the federal government, MARAD also has great interest in protecting the welfare of U.S. mariners who sail aboard vessels in the region. 

MARAD provides operational advice to U.S.-flag owners and operators, including counter-piracy measures and awareness, on a regular basis through MARAD Advisories, through a comprehensive and frequently updated website, and through MARAD’s electronic “MARVIEW” system which is available to registered users.   We also play a key role in the training of merchant mariners through the development of International Maritime Organization (IMO) maritime security courses and workforce development.  Working with the Coast Guard and IMO, Vessel Security Officer, Company Security Officer, and Facility Security Officer, courses were developed by the United States Merchant Marine Academy (USMMA).  MARAD continues to certify maritime security training providers who meet the criteria established by the Coast Guard.  To date, more than 50 training providers have been certified across the country.  Efforts are also being made to include anti-piracy and security training in the academic programs at USMMA and the state maritime schools.

In late December 2008, the Department of State asked MARAD to assist with the CGPCS Industry Outreach Working Group.  To this end, MARAD has met on numerous occasions with industry to help shape best management practices to counter piracy and to share industry concerns with U.S. government agencies.  In late December, the National Security Council published an action plan entitled, “Countering Piracy off the Horn of Africa: Partnership & Action Plan” (CPAP).  MARAD was actively involved in developing this plan, and posted the CPAP on its website for the benefit of industry. 

MARAD strongly supported the Military Sealift Command’s proposal to create and implement “Anti-Piracy Assessment Teams” for commercial vessels. These teams consist of personnel from the Naval Criminal Investigative Service, and MARAD.  On a voluntary basis, these teams board U.S.-flag vessels and offer recommendations on how to improve a vessel’s physical defenses against piracy, and review security tactics, techniques and procedures.  To date, a number of successful Anti-Piracy Assessment Team vessel assessments and recommendations have been completed.  We expect this process to be embraced by the international community for similar implementation.

MARAD’s continuing outreach to the maritime industry on the piracy issue has taken many forms.  In addition to leading informal meetings and participating in international forums, MARAD has hosted several collaborative meetings with both the American and international maritime industry community and appropriate federal agencies.  For example, in October and November 2008, MARAD and the Department of State sponsored meetings with representatives from the maritime industry to specifically discuss piracy in the Gulf of Aden.  Participants included company security officers from major U.S. flag carriers,  including American President Lines (APL), Horizon Lines, Maersk, Intermarine, Interamerican Ocean Shipping, American Roll On/Roll Off, Crowley, American Overseas Marine, and Ocean Shipholdings.  Flag states with U.S.-owned vessels or with vessels serving strategic U.S. interests also participated, including representatives from Denmark, Marshall Islands, Liberia and Panama.  The U.S. Navy’s Maritime Liaison Office Bahrain and the United Kingdom’s Maritime Transport Office were also included. Topics specifically addressed at these meetings were maneuvering and speed, illumination, communication, duress terminology, armed force protection, and self-defense devices which may be used to deter piracy.

At the request of the maritime industry, MARAD facilitated extensive discussions on piracy with the Department of State, Department of Defense, Federal Bureau of Investigation (FBI), and the Department of Homeland Security’s Transportation Security Administration (TSA) and Coast Guard.  In November 2008, MARAD participated in a public hearing hosted by the Coast Guard, focused on piracy initiatives being considered by the International Maritime Organization’s Maritime Safety Committee (MSC).  In December 2008, MARAD staff played an instrumental role in several other international planning events related to piracy.  MARAD participated in the NATO Senior Civil Emergency Planning Committee (SCEPC) meeting held in Brussels, Belgium, which included piracy as an agenda item.  MARAD chairs the NATO Planning Board on Ocean Shipping, which reports to the SCEPC.    

On December 2, 2008, MARAD hosted a Piracy Round Table meeting to discuss industry “self-help” and best practices to counter piracy.  This meeting brought U.S. government agencies together with the maritime industry to develop a mutual understanding of the problem and to develop best practices recommendations.  Members of the industry included shipping associations, registries, carriers, marine insurance companies and representatives from the European Union.  U.S. government representatives included personnel from the Coast Guard, Department of State, Department of Defense, Office of Naval Intelligence, USAID, the National Security Council, and the Homeland Security Council.  MARAD established an Anti-Piracy portal on the Agency’s website, which is continuously updated.  MARAD Advisories are posted on this site as are any recent developments and key contact information.

MARAD hosted an international maritime industry Piracy Summit on December 11, 2008, with representatives from more than 50 industry associations, insurers, shipping companies, and labor to encourage them to further develop best management practices to combat piracy and to implement these strategies.  Representatives from government included the Department of State, the Coast Guard, U.S. Transportation Command, Office of Naval Intelligence and Military Sealift Command.

In late December, MARAD joined the Department of State for discussions in London between representatives of European Union navies and maritime trade associations.  The purpose of these discussions was to further develop and implement best management practices and to improve communication between maritime companies and military forces in the Gulf of Aden region.  MARAD continues to meet with industry to finalize best management practices and share industry concerns with government agencies.

In early 2009, MARAD intensified its efforts in the fight against piracy to further improve coordination between industry and the various navies participating in the Gulf of Aden, to provide voluntary assessments of security on U.S. vessels, and to further establish best management practices to prevent piracy and to bring industry’s perspectives and ideas to the interagency.  Additional industry meetings, UN meetings, meetings hosted by the Baltic International Maritime Council (BIMCO) and a counter-piracy meeting held in Dubai and hosted by the Maritime Liaison Office in Bahrain, have all pursued these objectives.  Since maritime labor is uniquely vulnerable to pirate attacks, with mariners having been killed or held hostage as part of ransom demands, MARAD has included maritime labor in many of the discussions and meetings.

The Maritime Administration led the U.S. delegation of Working Group #3 at the meeting of the Contact Group on Piracy off the Coast of Somalia in March of 2009 and presented the international industry developed (and MARAD facilitated) “Best Management Practices” (BMPs) to counter piracy.  MARAD also supported the dissemination of counter piracy guidance and supported better coordination between military and civilian operators in the region.

MARAD has further developed its electronic information system “MARVIEW” and contributed to the Maritime Safety and Security Information System (MSSIS) for the purposes of providing more efficient piracy related data.  MARAD is providing U.S. flag projected schedules in the waters off Somalia to the National Maritime Intelligence Center (NMIC) and vessel tracking information on U.S. flag carriers to appropriate military authorities.

Given limited military resources available to fully protect commercial shipping in the waters off Somalia, there is an increasing focus on the issue of shipping companies hiring private armed security personnel to protect their vessels while transiting the waters off Somalia.  There are many complicated factors which must be addressed before the industry, as a whole, can adopt this recommendation.  These include the need to develop appropriate standards for armed security providers, compliance with port state restrictions on arms aboard merchant vessel entering many ports in the world, and consideration of potential escalation of violence due to the presence of arms onboard commercial vessels, issues of safety for the crew and vessel, rules on the use of force, design constraints of vessels to carry additional personnel, union contract issues, insurance and liability issues and many other related factors. We recognize that in appropriate circumstances, on certain vessels determined to be at high risk, properly screened and certified third-party security providers with firearms, operating in compliance with applicable coastal, port and flag state laws can be an effective deterrent to pirate attacks.

The Government is examining the options of recommending, or possibly directing U.S.-flagged vessels to use armed security teams while transiting near Somalia.  Some U.S.-flagged owners and operators have used armed security teams while transiting near Somalia and have found it to be an effective anti-piracy tool.

Most recently, MARAD has engaged the marine insurance industry to determine the effects of the piracy situation on insurance rates and to determine the effects on insurance if vessels carry armed security personnel aboard.  MARAD will continue to work with industry to determine whether and to what extent armed security might be used aboard commercial vessels in certain circumstances.

It is clear that combating international piracy is no small effort, evidenced by its long history.  Much work has already taken place, but much remains to be done, before international piracy can be eliminated.  Due to its unique and positive relationship with U.S.-flag and international vessel owners, MARAD has maintained a vital role in the development of U.S. anti-piracy policy.  Additionally, through its training role, MARAD provides a valuable service to the commercial fleet.  

Mr. Chairman, the Department of Transportation stands ready to assist in any way possible to address piracy and any other issue that threatens the national and economic security of the United States and our allies. 

Thanks you again for holding this hearing today.  I will be happy to answer any questions you might have.

STATEMENT OF

MARGARET GILLIGAN,
ASSOCIATE ADMINISTRATOR FOR AVIATION SAFETY,
FEDERAL AVIATION ADMINISTRATION,

BEFORE THE

SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION,
SUBCOMMITTEE ON AVIATION OPERATIONS, SAFETY, AND SECURITY,

ON

AVIATION SAFETY: PILOT FATIGUE.

DECEMBER 1, 2009.

Chairman Dorgan, Senator DeMint, Members of the Subcommittee:

Thank you for inviting me here today to discuss the Federal Aviation Administration’s (FAA’s) efforts to mitigate pilot fatigue. Administrator Babbitt, himself a former commercial airline pilot, has made this a high-priority issue for the agency. The FAA has always been a leader in advancing measures targeted at preventing or mitigating pilot fatigue through our sponsored research, dissemination of training and educational materials, and, most significantly, through our regulatory requirements. We believe that it is critical, whenever possible, to incorporate scientific information on fatigue and human sleep physiology into regulations on flight crew scheduling. Such scientific information can help to maintain the safety margin and promote optimum crew performance and alertness during flight operations. Our task is to translate that knowledge to the operational environmental in a sound and practical way. The complexity of our current pilot flight and rest regulations, with varying standards for a number of categories of aviation operations, developed through the years as the aviation industry grew, adopted more advanced technology, and employed diverse operational strategies.

Preventing and mitigating the effects of fatigue is a shared responsibility that brings shared benefits in terms of increased safety, better working conditions and greater operational efficiencies. We at the FAA take our responsibility very seriously for investigating any threat to safety in the aviation system and establishing the regulatory framework to enhance the public's safety. To that end, we are engaged in an effort to revise and update our rules on pilot flight and rest, which I will describe in more detail below. At the same time, carriers have the responsibility to conduct their operations at the highest level of safety. That includes adopting appropriate scheduling practices that provide the pilot a clearly identified opportunity to rest. And, finally, pilots have the responsibility to take advantage of the opportunity for rest and report for their assignments well rested and ready for duty. We know that in the vast majority of cases, carriers and pilots act in a professional manner and take this shared responsibility seriously. We have a common goal to ensure that all aviation operations are conducted safely.

Current Regulations:

Current regulations place varying limits on the amount of time that a flight crewmember can fly (i.e. per day, week, month, quarter, and year), and require that a pilot be afforded a period of rest, free from obligation to the employer. Flight time limitations are based on the type of operation. For example, under current Part 121 rules, pilots in a two-pilot crew, on domestic flights, can generally fly up to eight hours per day. Their workday can extend up to 16 hours, including time on the ground between flights. In addition, there are no restrictions on flying during the middle of the night or making numerous takeoffs and landings.  In addition to daily limitations, these flight crewmembers are limited to 30 flight hours in any 7 consecutive days.

Flight crewmembers engaged in part 121 flag operations (international passenger flights), are limited to 32 flight hours in any 7 days.  Part 121 supplemental operations (typically cargo, on-demand or charter operations) have no 7 consecutive day limitations.  Flight crewmembers serving in part 121 domestic or flag operations are limited to 100 hours per calendar month while flight crewmembers serving in supplemental operations are limited to 100 flight hours in any 30 consecutive days.

These differing regulations for different types of operations are inconsistent and complex, and can be easily misunderstood, especially when a pilot can be assigned to different types of operations. The different rules developed over time, as the aviation industry changed and expanded. While such variance in the rules may have been justified when they were first adopted, these differences may no longer be valid in today's operational environment. Our rulemaking will address this.

Current rules also require that a pilot be afforded an adequate rest period. The “crew rest” elements of the regulation are designed to mitigate cumulative and acute fatigue, primarily through limitations on flight hours and defined hours of rest relative to flight hours. For example, the regulation for domestic operations outlines:

• No more than 30 flight hours in any 7 consecutive days
• At least 24 hours of consecutive rest during any 7 consecutive days
• Varying rest requirements relative to hours flown in any 24 hour period

The rule also defines rest period activities and prohibitions, and provides provisions for circumstances under which flight time limitations can be exceeded, such as in adverse weather operations. As of late 2000, an FAA legal interpretation clarified that a pilot crew member, flying under domestic flight rules, must “look back” 24 hours and find eight hours of uninterrupted rest before beginning any flight segment.

Pilots also have a regulatory responsibility to not fly when they are not fit, including being fatigued. Thus, while the carrier schedules and manages pilots within these limitations and requirements, the pilot has the responsibility to rest during the periods provided by the regulations. The FAA has long held that it is the responsibility of both the operator and the flight crewmember to prevent fatigue, not only by following the regulations, but also by acting intelligently and conscientiously while serving the traveling public. This means taking into consideration weather conditions, air traffic, health of each flight crewmember, or any other circumstances (personal problems, etc.) that might affect the flight crewmember’s alertness or judgment on a particular flight.

FAA Actions:

The FAA has initiated a number of fatigue mitigation efforts in recent years:

1995 Proposal for Pilots:In 1995, the FAA proposed a rule to change flight time and rest limits. The agency received more than 2,000 comments from the aviation community and the public. Most of those comments did not favor the rule as proposed, and there was no clear consensus on what the final rule should say. The FAA recently withdrew this proposed rule because it will be superseded by the current rulemaking effort described below.

1998 ARAC: In July 1998, the FAA Administrator asked the Aviation Rulemaking Advisory Committee (ARAC) to work with the industry to reach a consensus and develop a new proposal. If no consensus could be reached, the FAA would continue to enforce the current regulations. In February 1999, ARAC reported that there was no consensus in the aviation community. The group offered five different proposals to update the flight and rest regulations.

1999 Federal Register Notice: In response to concerns raised by the pilot community, the FAA Administrator notified the aviation community on June 15, 1999 that it had six months to ensure that it was in full compliance with the agency’s current flight time and rest requirements. Reviews of airline scheduling practices conducted in December 1999 and discussions with pilot unions and airlines confirmed that the vast majority of pilots were receiving the amount of rest required by the FAA’s rule.

2000 FAA letter: On November 20, 2000, the FAA responded to a letter from the Allied Pilots Association that set forth specific scenarios that could affect a very small number of all commercial pilots. The FAA’s response, known as the “Whitlow Letter,” was consistent with the agency’s long-standing interpretation of the current rules. In summary, the FAA reiterated that each flight crewmember must have a minimum of eight hours of rest in any 24-hour period that includes flight time. The scheduled flight time must be calculated using the actual conditions on the day of departure regardless of whether the length of the flight is longer or shorter than the originally scheduled flight time.

2001 Federal Register Notice: The FAA published a notice in the Federal Register on May 17, 2001 to reiterate its long-standing interpretation of its pilot flight time and rest rules. The notice informed airlines and flight crewmembers of the FAA’s intent to enforce its rules in accordance with the Whitlow letter interpretation. Each flight crewmember must have a minimum of eight hours of rest in any 24-hour period that includes flight time. That calculation must be based on the actual conditions on the day of departure regardless of whether the length of the flight is longer or shorter than the originally scheduled flight time. The FAA did not anticipate that the notice would result in major disruptions to airline schedules. It stated that, beginning in November 2001, the FAA would review airline flight scheduling practices and deal stringently with violations that came to light.

2001 ATA/RAA Request: The FAA denied requests made on June 12, 2001 on behalf of the Air Transport Association (ATA) and Regional Airline Association (RAA) to stay all agency action regarding the November 20, 2000 Whitlow letter of interpretation and the May 17, 2001 Federal Register notice of the FAA’s enforcement policy regarding pilot flight time and rest. The FAA’s letter and Federal Register notice were consistent with the agency’s long-standing interpretation of the current rules. The documents were consistent with the statutory mandate to issue rules governing the maximum hours or periods of service, the use of plain language in regulations and the regulatory history of the rules. ATA subsequently petitioned for review of the Whitlow letter and the enforcement policy.

On Sept. 5, 2001 the U.S. Court of Appeals for the District of Columbia granted a motion by the ATA to stay the May 17, 2001 Federal Register notice. On May 31, 2002, the court denied ATA’s petition for review, ruling in favor of the FAA. As a result, the FAA has continued to enforce the current regulations consistent with the Whitlow letter.

2008 FAA Fatigue Symposium: In June 2008, the FAA sponsored the Fatigue Symposium: Partnerships for Solutions to encourage the aviation community to proactively address aviation fatigue management issues. Participants included the National Transportation Safety Board, the Institutes for Behavior Resources, Inc., and many of the world’s leading authorities on sleep and human performance. The symposium provided attendees with the most current information on fatigue physiology, management, and mitigation alternatives; perspectives from aviation industry experts and scientists on fatigue management; and information on the latest  fatigue mitigation initiatives and best practices.

Ultra Long-Range Flights: In 2006, the FAA worked with Delta Air Lines to develop and approve fatigue mitigation for flights between John F. Kennedy International Airport and Mumbai, India. The flights were operated for more than 16 hours with four pilots provided that the airline followed an FAA-approved plan to manage rest and mitigate the risk posed by fatigue. The mitigation, approved as an Operations Specification issued to Delta Air Lines, was specific for that city pair. Although that specific route is no longer flown by Delta, the FAA viewed Delta’s fatigue mitigation strategy as a model program.

As a result of Delta’s efforts, the FAA proposed in November 2008 to amend Delta, American, and Continental’s Operations Specifications to incorporate fatigue mitigation plans for their ultra long-range flights. Based on comments received from the three air carriers, the FAA withdrew the proposed amendments on March 12, 2009. The FAA is currently working with airlines to gather data that will help the agency enhance the safety requirements for ultra long-range flights. The agency believes that it is in the best interest of passenger and crew safety for airlines to use an FAA-approved fatigue mitigation program to reduce the risk of pilot fatigue.

Rulemaking Underway:

In June 2009, the FAA chartered the Flight and Duty Time Limitations and Rest Requirements Aviation Rulemaking Committee (ARC) comprised of labor, industry, and FAA representatives to develop recommendations for an FAA rule based on current fatigue science and a thorough review of international approaches to the issue. The ARC was chartered to provide a forum for the U.S. aviation community to discuss current approaches to mitigate fatigue found in international standards and make recommendations on how the United States should modify its regulations. The ARC consisted of 18 members representing airline and labor associations. The members were selected based on their extensive certificate holder management and/or direct operational experience.

Specifically, the FAA asked the ARC to consider and address the following:

(1) A single approach to addressing fatigue that consolidates and replaces existing regulatory requirements for parts 121 and 135.

(2) Generally accepted principles of human physiology, performance, and alertness based on the body of fatigue science.

(3) Information on sources of aviation fatigue.

(4) Current approaches to address fatigue mitigation strategies in international standards.

(5) The incorporation of fatigue risk management systems (FRMS) into a rulemaking. An FRMS is a data-driven process and systematic method to monitor and manage safety risks associated with fatigue-related error.

The ARC met over a 6-week period beginning July 7, 2009. Early on, the FAA told the ARC members that it was very interested in the ARC’s recommendations, but that the agency retained the authority and obligation to evaluate any proposals and independently determine how best to amend the existing regulations. The agency reiterated that participation on the ARC in no way precluded them from submitting comments critical of the NPRM when it was published. On September 10, 2009, the ARC delivered its final report to the FAA.

We cannot discuss further particulars of the FAA’s rulemaking efforts at this time, however, we are working as quickly as possible to complete a draft Notice of Proposed Rulemaking (NPRM).I will readily acknowledge that this effort has been difficult, and has taken us longer than we wanted or expected. The events of the last 15 years evidence the complexity of the issue and the strong concerns of the parties involved, and those are clear in the current rulemaking as well. At the same time, our focused effort since June demonstrates the high priority that Administrator Babbitt and I, along with the rest of the FAA team, place on overcoming these challenges and updating these regulations to enhance safety. I am confident we will get there.

Chairman Dorgan, Senator DeMint, Members of the Subcommittee, this concludes my prepared remarks. I would be happy to answer any questions that you might have.

STATEMENT OF

MARGARET GILLIGAN,
ASSOCIATE ADMINISTRATOR FOR AVIATION SAFETY,
FEDERAL AVIATION ADMINISTRATION,

BEFORE THE

HOUSE OF REPRESENTATIVES
COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE,
SUBCOMMITTEE ON AVIATION,

ON

US AIRWAYS FLIGHT 1549.

FEBRUARY 24, 2009.

Chairman Costello, Ranking Member Petri, Members of the Subcommittee:

Thank you for inviting the Federal Aviation Administration (FAA) here today to discuss the events surrounding the US Airways Flight 1549 emergency landing in the Hudson River on January 15, 2009. My name is Peggy Gilligan and I am the new Associate Administrator for Aviation Safety at the FAA.

This was a truly extraordinary event in aviation history: a multiple bird ingestion that virtually simultaneously caused engine failure in both engines of a commercial airliner on takeoff, resulting in an emergency water landing with no loss of life. While the FAA does have aircraft standards and crew training and procedures in place to address these issues, the circumstances of US Airways Flight 1549 were simply unprecedented, and we, just as the rest of the world, are awed by the quick thinking and consummate professionalism of the entire crew of Flight 1549.

Because the National Transportation Safety Board (NTSB) is still investigating the matter, my testimony today will primarily address the FAA’s efforts in three areas: first, how the FAA works with airports to reduce the probability of bird strikes; second, what the FAA standards are for aircraft to increase survivability in crashes; and third, what the FAA requires in terms of flight crew training when encountering emergency situations such as this. I also want to note the role played by FAA air traffic controllers and flight managers whenever an aircraft emergency develops, whether due, as here, to bird strikes, or some other cause.

Bird Strike Mitigation

Since 1990, the FAA has collected over 100,000 voluntary wildlife strike reports and has maintained a bird strike database. The Wildlife Services Program of the U.S. Department of Agriculture (USDA) manages the database under terms of an interagency agreement with FAA. Strike reports are sent to Wildlife Services where they are edited and entered into the database. Embry-Riddle University maintains the public FAA website for bird strike data.

Currently, the database has 106,604 records from January 1990 through August 2008. The increasing number of bird strikes is a combination of better reporting and increasing bird populations. The database is available to airport operators and safety analysts and is extremely useful for determining which species are most frequently involved in strikes, seasonal patterns, and extent and type of damage from strikes.

Mandatory reporting of wildlife strikes is extremely difficult to enforce and may not necessarily increase accurate reporting. The success of the voluntary reporting system is proven by the increase in annual reports from only 1,900 reported strikes in 1990, to almost 8,000 reported strikes in 2007. Advances in wildlife strike reporting through web-based technology make it easier and faster to report strikes. Moreover, the FAA, in close partnership with the USDA, continues to educate and increase awareness through ongoing campaigns in concert with industry, conferences and participation on the national Bird Strike Committee.

The FAA has an interagency agreement with the Smithsonian Institution to analyze bird remains at the Feather Identification Laboratory (National Museum of Natural History) to determine species identifications. In 2003, the FAA purchased a DNA sequencer to assist in building a DNA library and improve the identification capability of the laboratory. Airports can mail small remains from bird strikes to the feather laboratory at the Smithsonian. The laboratory then analyzes the remains and provides the species information to the airport and the FAA Wildlife Strike Database. Species information is vital for the airports and wildlife managers when considering appropriate mitigation measures. Additionally, engineers use the data provided on species weights to test new engine designs. The Feather Identification Lab identified over 700 cases for the FAA in 2008.

Our statistics on bird strikes indicate that the closer the aircraft is to the runway, the higher the risk of a bird strike. Conversely, the risk of a substantial bird strike decreases significantly with altitude. High altitude strikes are not common, though they do occur. For instance, at 30,000 feet, there was only one reported bird strike, between 1990-2008. However, about 73% of all strikes occur within the airport environment up to 500 feet above ground. According to reports, Flight 1549 had reached an altitude of 3,200 feet when it encountered a flock of Canada geese that resulted in numerous bird strikes to the airframe and engines.

Since the data indicate that the greatest risk of bird strikes occurs at the airport, the FAA has focused its bird strike mitigation efforts at airports. By regulation, the FAA requires commercial service airports to maintain a safe operation. This includes conducting Wildlife Hazard Assessments and preparing a Wildlife Hazard Management Plan, if necessary.

Wildlife Assessment

As noted, a Wildlife Assessment is required of all commercial airports and requires consideration of wildlife attractants within 10,000 feet of an airport. FAA also recommends consideration of wildlife attractants (food, water, and habitat) within five miles of the airport, if the attractant could cause hazardous wildlife movement into or across the approach or departure airspace. The assessment considers:

• An analysis of events prompting the assessment
• Identification of wildlife species observed and their numbers, locations, and local movements
• Identification of features on or near the airport that attract wildlife
• A description of the wildlife hazards to air carrier operations
• Recommended actions for reducing wildlife hazards to air carrier operations

The Wildlife Assessment is submitted to the FAA. The agency then determines if the airport needs to develop a Wildlife Hazard Mitigation Plan.

Wildlife Hazard Mitigation Plan

Such a plan would:

• Provide measures to alleviate or eliminate wildlife hazards
• Identify persons who have authority for implementing the plan
• Identify priorities for needed habitat modification
• Identify resources for the plan
• Establish procedures to be followed during air carrier operations
• Outline wildlife control measures

Typical wildlife mitigation techniques include habitat modification, including filling in ponds and water sources, if practicable, and controlling vegetation, e.g., cutting grass high or low depending upon bird species. Airports may also use wildlife harassment tools, such as air guns, lasers, dogs, wildlife patrols, trapping and removing the wildlife, and as a last resort, exterminating the wildlife with the appropriate permits. Ongoing research into wildlife mitigation techniques continues to be explored by the USDA Wildlife Services program through an interagency agreement with the FAA.

Bird Radar Research

Additionally, in 2000, the FAA began research to determine if low cost radars can reliably detect birds at or near (within three to possibly five miles of) airports and be used to develop an airport bird strike advisory system. These systems generally work by overlaying the radar data on an airport geographic information system.

Bird detection radar may have the most promise as tools to help airport operators manage their wildlife control programs. However, as many airports routinely have birds in the area, we do not yet know if this system would be capable of providing alerts that would be operationally suitable for making specific time-critical decisions on landing or takeoff.

The research is continuing to address these operational type issues. We are conducting radar evaluations currently with two Bird Radar systems at Seattle-Tacoma International Airport, two Bird Radar systems at Naval Air Station Whidbey Island in Oak Harbor, WA, and one portable research radar unit that is owned/leased by the University of Illinois, currently finishing a brief deployment at YVR (Vancouver, British Columbia, Canada). We are planning additional testing at Chicago O’Hare, Dallas-Ft. Worth, and John F. Kennedy International Airports, starting later this year. The FAA plans to collaborate with the USDA Wildlife Services program during these additional radar testing phases to determine operational suitability of this technology at airports.

Aircraft Certification and “Survivability”

In addition to our bird strike mitigation efforts, the FAA certifies all civil aircraft to meet a series of minimum standards. To receive FAA approval, an aircraft must be airworthy – that is, be designed and built to fly safely – as well as survive situations in which internal or external factors may interfere with safe operations of the aircraft. When the FAA certificated the Airbus A320, the design requirements and operating procedures took into account numerous exigencies, including: flight into a flock of birds, emergency landings on land, loss of engine power, and emergency landings in water.

Engine Bird Ingestion

The A320 involved in Flight 1549 was powered by two CFM56-5B4/P engines, which were certified to meet these requirements:

• Flocking Birds — the engine was able to ingest a flock of birds (seven 1.5 lb. birds), not lose more than ¼ of its power and continue to run for five minutes at its takeoff power setting.
• Single Bird — the engine was able to ingest a single large bird (4 lbs.) and be able to shut down safely. When a large bird is ingested, no continued operation is required – essentially, the engine is designed to shut down, e.g., with no hazardous debris or fire.

Airplane Flotation

Even though landing in water is an extremely rare occurrence, all transport category airplanes must float long enough to permit all the occupants to escape. In addition, the A320 was certified for “ditching” – that is, a prepared emergency landing in water, meeting the following requirements:

• The airplane must float in such a way that there are sufficient exits above water.
• The plane must be able to land in water and float under reasonable conditions long enough to allow evacuation of passengers into life rafts.
• Structural damage that might occur as a result of landing in water must be considered when determining the flotation characteristics.
• The airplane must carry special equipment, such as rafts, life vests and survival kits.

Certification for ditching occurs when an airplane is intended to be operated extensively on routes that are over water.

Seats

The seats on this airplane were designed to withstand 9 times the force of gravity, as are the overhead stowage compartments and other interior features. There are later standards that require dynamic testing of seats up to 16 times the force of gravity – commonly known as “16g seats;” however, these standards are not applicable to the A320.

What occurred to Flight 1549 indicates that all these standards were met. Current evidence points to engine bird ingestion of multiple Canada geese weighing on average between 6-10 lbs. each, far beyond the parameters of the birds for which the engine was designed to handle. Nonetheless, the engines reacted exactly as was intended; after the birds were ingested, they remained intact and did not shed any parts that might have damaged the aircraft fuselage; and they remained on the wing – allowing the crew to maintain flight.

Preliminary evidence indicates that the seats and all the interior structure performed very well in this accident, with minimal injuries to passengers as a direct result of the crash. Moreover, the aircraft did float – exits remained available and there was sufficient time for the successful evacuation of everyone on board.

Crew Training

In addition to our requirements for aircraft certification, Federal Aviation Regulations require all airlines to develop specific ditching procedures appropriate to their operations. Many airlines, including US Airways, tailor their training to their specific operations, with emphasis on areas of high risk. Airlines must submit these curricula to the FAA for review and approval before conducting any flight operations. Even though an airline may not spend extensive portions of its operations over water, it still has to have basic ditching training for its flight and cabin crews. Actual ditching training differs from airline to airline, based on the amount of their overwater operations.

The training is scenario based, meaning it includes a detailed dissection of an actual accident or incident and how the incident can be handled successfully. The crew is trained on all emergency procedures developed by the manufacturer, and this includes ditching. Training on handling emergencies -- crew resource management, decision making, workload management, crisis response, and situational awareness -- would be applicable to ditching through skill transfer, and that can be checked in a simulator. This scenario-based training and checking allows airlines to focus on events that are more likely to happen in actual, real-world operations.

Required ditching training includes emergency training with respect to each airplane type, model, and configuration for each required crewmember and each kind of operation that the airline proposes. All airline crewmembers must receive ditching training during their initial training and at recurrent intervals consistent with the airline’s approved training program.

US Airways flight attendants receive initial and recurrent training in ditching procedures, including:

• Cabin preparations
• Raft drills
• Passenger preparations
• Evacuations

US Airways pilots receive ditching training at their initial indoctrination with the airline using a case study of a 1970 ditching by a DC-9, then later receive A320-specific instruction during recurrent training. Areas covered include:

• Aircraft “clean-up” (configuration for ditching)
• Communications with air traffic control and cabin crewmembers
• Crew resource management
• Ditching direction, based on wind or calm, swell direction
• Post-ditching procedures, e.g., signaling, survival, first-aid

The ditching procedures are broken into segments above 10,000 feet and below 10,000 feet. Crewmembers are trained on both procedures. The above-10,000 feet procedures are focused on troubleshooting and engine restart. The below-10,000 feet procedures focus on “cleaning up” the aircraft, preparing the cabin crew for a water evacuation, setting all the equipment and switches for ditching, and communicating with air traffic control. The crew is trained to use the applicable procedure.

Flight 1549

While the FAA has been working for decades on bird strike mitigation, improving aircraft to increase passenger survivability, and training pilots and crew for emergencies, none of that should take away from the extraordinary acts of this incredible crew. From Captain Chesley Sullenberger’s strong background as a pilot and safety expert, which enabled him to control the aircraft so skillfully, to First Officer Jeffrey Skiles’ efforts to restart the engines and initiate the emergency landing checklist, to the incredible professionalism of the flight attendants, Donna Dent, Doreen Welsh, and Sheila Dail, in instructing and guiding the passengers to safety, there will probably be no more storied, heroic aviation crew in history. The fact remains that for all the training and technological advances we might make, the human element is where it can all fail, or where it can astonish us all.

Every aviator from the onset of his or her aviation training is taught these priorities in order: “aviate, navigate, communicate” – to fly the airplane, first and foremost; to navigate to a suitable emergency landing area; and to communicate with air traffic control the nature of the emergency so rescue can occur. Captain Sullenberger and his crew responded admirably to their training and their instincts and aviated, navigated, and communicated to a successful conclusion.

At this juncture, I want to make sure that I point out the equally admirable work of, Patrick Harten, the air traffic controller who communicated with Captain Sullenberger during those harrowing moments. From clearing airspace and runways for an emergency landing, to calling upon other aircraft to be additional eyes, to alerting his colleagues of the impending emergency, Mr. Harten was without doubt a crucial part of this incredible story. I also want to commend Michael Guarnieri, the air traffic controller at Teterboro, who instantly made a runway available at that airport in the event Flight 1549 was able to land there, and Robert Schmid, also at Teterboro, who did a great job of coordinating the emergency response notifications.

Our controllers are trained to respond to intense and stressful situations, as a matter of course. They have to be able to gather information from multiple sources, have constant situational awareness, and make instantaneous decisions. Every part of their training is designed to enhance each of these skills. It does not at all surprise the FAA that these controllers were so calm and professional in what was undoubtedly an incredibly pressurized situation, but once again, we are impressed with the high level of skill that these gentlemen displayed.

The incredible timeliness and efforts of the personnel on the commercial water vessels and other first responders who helped rescue the passengers and crew of Flight 1549 from the Hudson River that day was also extraordinary. From the ferries and tug boat crews to the New York City Fire and Police Departments, the combined efforts and quick thinking of all involved in getting the passengers and crew safely to shore were amazing and moving to see.

Finally, I must note that as we celebrate the outcome of Flight 1549, we also mourn the tragic loss of life on Colgan Air 3407 in Buffalo, New York. I know that the Members of this Committee will want to discuss this as soon as possible. We are fully supportive of the ongoing NTSB investigation in that case and I want to assure you that we will always strive to provide you with the timeliest information possible.

Conclusion

Mr. Chairman, Members of the Subcommittee, this concludes my prepared remarks. I would be happy to answer any questions you may have.

STATEMENT OF

GERARDO FRANCO
CHIEF, PROCUREMENT ASSISTANCE DIVISION
Office of Small and Disadvantaged Business Utilization
U.S. DEPARTMENT OF TRANSPORTATION

BEFORE THE

COMMITTEE ON SMALL BUSINESS AND ENTREPRENEURSHIP
U.S. SENATE

MAY 21, 2009

The Role of Small Business in Recovery Act Contracting

Chairwoman Landrieu, Ranking Member Snowe, Members of the Committee:

Thank you for inviting the U. S. Department of Transportation (DOT) here today to discuss the role of small business in the American Recovery and Reinvestment Act (ARRA) contracting.

On February 17^th, 2009 President Obama signed the ARRA appropriating $48.1 billion to the Department of Transportation. Of that amount, DOT has already made available $26.6 billion in highway funds, and $7.5 billion in transit money, to states and local transit agencies.

A critical part of this effort is to make funds available to the states and other DOT recipients promptly and efficiently so jobs can be created to stimulate economic activity at the state and local levels. As part of our commitment, and under the leadership of Secretary LaHood, some contracts funded through ARRA have been awarded, and work is underway.

Under two separate and distinct programs within DOT, there are contracting and subcontracting opportunities for small and disadvantaged businesses. Opportunities are available under our federal financial assistance to state and local transportation agencies (formula and other grant funds) via the Disadvantaged Business Enterprise (DBE) Program and through DOT’s direct contracting process (small business program).

Small Business Strategy -- Direct Contracting

Small businesses are the backbone of our economy, employing about half of all private sector employees and paying for nearly 45% of the total U.S. private payroll. DOT has developed a successful program designed to increase the number of federal competitively awarded contracts to small businesses by maximizing opportunities and promoting their use in DOT contracts and subcontracts.

DOT has developed a culture that has demonstrated its commitment to small and disadvantaged businesses. In 2008, DOT spent close to $5 billion in direct contracting, of which over $1.7 billion went to small, women-owned, veteran-owned, service disabled veteran-owned and disadvantaged businesses.

The DOT small business program is implemented under the leadership of the Office of Small and Disadvantaged Business Utilization (DOT/OSDBU) and encompasses all small businesses, including small and disadvantaged, women-owned, veteran-owned, service-disabled veteran-owned, and Historically Underutilized Business Zone certified firms.

The program is supported at the highest level of the organization and reflected in the DOT strategic and performance plans. The Transportation Acquisition Manual and the Transportation Acquisition Regulations reinforce written policies and procedures for use by the DOT Operating Administrations (OAs) to implement small business contracting activities.  Each OA has at least one small business specialist to assist small businesses seeking contracting opportunities with DOT.

Small Business Strategy -- Formula Funds

The DBE program, enacted in 1983 as part of the Surface Transportation Assistance Act (STAA) of 1982, was designed as a vehicle to increase the participation by minority business enterprises in federally assisted state and local contracts. Three major DOT operating administrations are involved in the DBE program: the Federal Highway Administration, the Federal Aviation Administration and the Federal Transit Administration.

In Fiscal Year 2008, DOT distributed more than $40 billion in formula and other grant funds, which resulted in over $30 billion in contracting and subcontracting opportunities for small and disadvantaged businesses at the state and local levels. DBEs were awarded $3.3 billion in contracts, representing over 11% of the total DOT assisted contracting.

The DOT is working with the states to monitor the funds distributed under ARRA. A number of reporting tools are being developed in accordance with the Recovery Act to meet the various requirements in the legislation. For example, FHWA has instituted a process to capture information on a monthly basis, of ARRA funded projects detailing DBE participation. We are looking at developing a working group to ascertain how to best capture the information at the subcontracting level. OSDBU intends to coordinate the development of a web based reporting tool to allow recipients to report DBE achievements into a centralized database.  This will allow DOT to better monitor DBE awards or commitments and payments.

Implementation of Recovery Act

DOT will distribute about $35 billion in ARRA appropriated infrastructure funds, which are subject to the same DBE program requirements as non-ARRA formula funded projects. DOT recently issued guidance to program administrators suggesting steps to take to mobilize underutilized DBE capacity that may be needed to meet increased demand fueled by the ARRA. States, airports and transit agencies must meet the same DBE requirements for ARRA resources as they do for normal formula funded programs. Based on our history with existing programs, we expect the ARRA to generate nearly $3 billion in additional contracting and subcontracting opportunities for DBEs.

DOT continues to promote and encourage minority and woman-owned businesses to pursue contracts funded by ARRA and we are seeing positive results. For example, KND Licensed Electrical Contracting & Services Corporation is a woman-owned, DBE Certified, electrical contracting firm that is a subcontractor for the “New York Long Island Rail Road East Side Access Project” that recently received $195.4 Million in ARRA funding. KND is located in Deer Park, New York and has a solid track record for 10 years. KND is also utilizing the DOT’s Short Term Lending Program to continue to grow their business, which thanks to this effort is projected to increase by 30%.

Included in the Recovery Act is $20 million for DBE bonding assistance for transportation projects that are specifically funded through ARRA. To maximize the impact of this money, DOT is working closely with the Small Business Administration (SBA) to develop potential options to leverage SBA’s existing Surety Bond Guarantee program, to benefit DBEs involved in ARRA. OSDBU will coordinate a very aggressive outreach campaign at the state and local level to promote and distribute information related to this program. This campaign will be a joint effort between DOT and state DOTs, Office of Civil Rights at the state and local levels, and other government agencies such as the SBA, the Minority Business Development Agency, and others. Part of our communication effort to disseminate information to small business will be coordinated through the nine Small Business Transportation Resource Centers (SBTRCs). OSDBU has established cooperative agreements with business organizations across the country to assist small businesses.

In the context of the DBE program, only firms certified as DBE under Title 49 Code of Federal Regulations parts 26 (49 CFR 26)  are counted. DOT recently issued guidance to program administrators reemphasizing the applicability of the DBE program to any additional funding received under ARRA.

DOT also had issued guidance regarding the eligibility of service disabled veteran owned business and encouraging their participation in the DBE program. DOT is considering expanding its guidance regarding the use of the small business set-aside as it pertains to the DBE program.

Because small businesses are critical in stimulating economic growth and creating jobs, DOT encourages small business participation in all its grants. Recipients will be required to report small business participation through special ARRA reporting vehicles.

As part of the implementing guidance provided to the OAs for all ARRA procurement actions, DOT’s Senior Procurement Executive issued specific guidance instructing the OAs to ensure maximum opportunities for small businesses to compete in contracts resulting from the ARRA.

DOT actively reaches out to the small business community. For example, in Fiscal Year 2008 DOT OSDBU participated in more than 11 Service Disabled Veteran Owned Small Business (SDVOSB) related events and actively reached out to SDVOSB organizations to provide a supportive environment for them to present their capabilities to DOT and to learn about contract and subcontracting opportunities. DOT OSDBU actively participated in the National Veterans Conference sponsored by the U.S. Department of Veterans Affairs and received the outstanding federal agency award for engaging the SDVOSB community. OSDBU also provides technical assistance and workshops to small businesses on how to market their products and services to federal agencies, specifically to DOT. We continued to encourage the use of small business set-asides in DOT contracts through the small business review process and individual interaction with procurement officials.

The DOT/OSDBU strategy has shown significant success. DOT has received the highest (green) rating from the Small Business Administration for exceeding most of its small business goals over the last three years, and will continue to make every effort to excel in this area.

Thank you for the opportunity to appear before you today. I will be happy to answer any questions.

JOINT STATEMENT OF

CHRISTA FORNAROTTO,
ACTING ASSISTANT SECRETARY FOR AVIATION AND INTERNATIONAL AFFAIRS,
U.S. DEPARTMENT OF TRANSPORTATION
AND
NANCY LOBUE,
ACTING ASSISTANT ADMINISTRATOR,
AVIATION POLICY, PLANNING, AND ENVIRONMENT,
FEDERAL AVIATION ADMINISTRATION,

ON

AVIATION CONSUMER ISSUES:
EMERGENCY CONTINGENCY PLANNING AND OUTLOOK FOR SUMMER TRAVEL,

BEFORE THE

HOUSE COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE,
SUBCOMMITTEE ON AVIATION,

MAY 20, 2009.

Chairman Costello, Ranking Member Petri, Members of the Subcommittee:

Thank you for inviting us here today to discuss issues facing aviation consumers and the outlook for air travel in the United States this summer.  Both the Office of the Secretary of the Department of Transportation (DOT) and the Federal Aviation Administration (FAA) continue to work hard to ensure the welfare and safety of consumers.  This joint testimony will detail recent actions that each has undertaken in this effort.  Specifically, we will be discussing the status of our current consumer protection and regulatory compliance initiatives, the FAA’s on-going efforts to reduce congestion-related delays, including the actions affecting the three busy New York airports, and, finally, our work in coordination with other Federal agencies in connection with the H1N1 outbreak.

In 2007, complaints by airline consumers filed with the Department spiked sharply.  This spike was in part due to deteriorating on-time performance and incidents such as those that occurred in December 2006 and February 2007 in which passengers on-board many aircraft were stranded for hours on airport tarmacs while waiting for their flights to take off.  Since 2007, however, data reported to the Department show improvements in the quality of air service:

• In 2008, the Department received 10,643 air service complaints from consumers, compared to 13,180 complaints received in 2007.  This downward trend has continued. For the first quarter of 2009, the Department received 2,164 air service complaints, compared to 3,122 complaints received during the first quarter of 2008, and 2,887 complaints received during the first quarter of 2007. 
• The U.S. carriers reporting on-time performance data recorded an overall on-time arrival rate of 76.0 percent for January through December 2008, compared to 2007’s 73.4 percent rate.  For the first quarter of 2009, the on-time performance rate was 79.2 percent, compared to 70.8 percent during the first quarter of 2008, and 71.4 percent during the first quarter of 2007.
• The U.S. carriers reporting mishandled baggage data posted a mishandled baggage rate of 5.26 reports per 1,000 passengers in 2008, compared to 2007’s rate of 7.05.  For the first quarter of 2009, the mishandled baggage rate was 4.29, compared to 6.81 for first quarter of 2008, and 8.05 for January-March 2007.
• In 2008, the involuntary oversales (“bumping”) rate was 1.10 per 10,000 passengers, compared to 1.12 for 2007.  For the first quarter of 2009, the bumping rate was 1.31 per 10,000 passengers, compared to 1.37 for the first quarter of 2008, and 1.46 for the first quarter of 2007. 
• Despite applying a different performance standard, the number of chronically delayed flights dropped from 507 in 2007 to 244 in 2008.  In the first quarter of 2009, there were 32 chronically delayed flights compared to 79 in the first quarter of 2008 and 183 in the first quarter of 2007.  In 2008, the Department’s Office of Aviation Enforcement Proceedings (Enforcement Office) began using an expanded definition of what constituted a chronically delayed flight, i.e., a flight that was delayed more than 15 minutes on more than 70% of the flight’s operations per quarter, with a minimum of 30 operations. Previously, the Department’s standard used a minimum of 45 operations per quarter. 

Although these statistics show a trend in the right direction, they do not necessarily indicate that the underlying problems that they measure are being solved.  Rather, much of the improvement may be attributable to capacity cuts by airlines, which result in fewer planes and fewer passengers in the air.  With this in mind, the Department is committed to protecting consumers and ensuring that the quality of air service continues to improve, even when airlines return to adding capacity as the economy recovers.  To this end, more can and will be done.

We recognize that a number of steps have recently been undertaken to improve the quality of air service, including increasing the resources of the Enforcement Office, which acts as the prosecuting office for aviation consumer enforcement cases, organizing a task force to develop practices for mitigating the hardship caused by extended tarmac delays, raising the amount of civil penalties assessable for violations of certain laws and regulations protecting air travelers, improving the reporting of tarmac delays for diverted and cancelled flights, and increasing the amount of compensation for passengers who are involuntarily denied boarding.  Currently, we are reviewing the effectiveness of these steps and considering additional ones. 

In December 2008, we issued a notice of proposed rulemaking (NPRM) proposing to enhance airline passenger protections by designating the operation of a chronically delayed flight as an unfair and deceptive practice and by requiring carriers to (1) adopt contingency plans for lengthy tarmac delays and to incorporate them in their contracts of carriage, (2) respond to consumer complaints, (3) publish delay data, and (4) have customer service plans, incorporate them into their contracts of carriage, and audit their compliance with their plans.  We are currently evaluating the NPRM and the comments filed in response to it and we will determine the next steps associated with this NPRM once we are through with our evaluation.

 While consumer protection is a priority for the Department, so too is congestion.  The Department shares the Committee’s longstanding concern regarding congestion, especially in the New York area.  The FAA’s key mission is to provide the safest, most efficient aerospace system in the world.  Although it is extremely safe, the current system is not performing adequately.   We saw the difficulties in air travel during the congested summer of 2007.  The Next Generation Air Transportation System (NextGen) will change the way the system operates – reducing congestion, noise, and emissions, expanding capacity and improving the passenger experience while enhancing safety.  NextGen is needed to bring to air transportation twenty-first century technology and flexibility to ensure reliability and predictability for airlines and passengers.

Even in the face of falling passenger demand and a reduced number of airline flights, we still experience congestion in our busiest airspace.  We know that we must be poised to handle future demand that will surely return as the nation’s economy improves.  FAA’s preliminary modeling of a series of NextGen capabilities shows that by 2018 total flight delays can be reduced by 35-40 percent over the current system, saving almost a billion gallons of fuel and the emissions produced. 

Secretary LaHood has made clear that delivering the capabilities of NextGen, is a key priority for him and this Administration. We also appreciate the support that this Committee, as well as Congress as a whole, has given us to move forward with NextGen.

The summer of 2007 was particularly troublesome and filled with delays, especially in the New York metropolitan region.  During the months of June – August 2007, there were 1.9 million scheduled flights nationwide – and 28% of those were delayed, according to information provided by carriers that report delay data to the Bureau of Transportation Statistics (BTS).  In the New York area it was worse: 37% of flights were delayed at LaGuardia Airport (LGA), John F. Kennedy International Airport (JFK) and Newark Liberty International Airport (EWR), which ranked as three of the five most delayed airports in the country.  Causes of delay included over scheduling, mechanical issues for airlines, weather, late-arriving aircraft, and security difficulties. 

Nationwide, the FAA has been putting a range of solutions into place.  New runways provide significant capacity and operational improvements.  On November 20th, three major new runways opened:  at Seattle-Tacoma, Washington Dulles, and Chicago O’Hare International Airports.  The Seattle runway is expected to cut local delays in half by increasing capacity in bad weather by 60 percent, while the new runway at Dulles will provide capacity for an additional 100,000 annual operations. 

The new Chicago runway adds capacity for an additional 52,300 annual operations and is a part of the greater O'Hare Modernization Program (OMP) that reconfigures the airport's intersecting runways into a more modern, parallel layout.  The OMP  substantially reduces delays in all weather conditions and increases capacity at the airfield, allowing O'Hare to meet the region's aviation needs well into the future. 

On February 12, a runway extension at Philadelphia International Airport was completed, helping reduce delays there.  Looking forward for the next three years, new runways will open at Charlotte and Chicago O’Hare.  Eleven other runway projects are in the planning or environmental stage at Operational Evolution Plan (OEP) airports through 2018.

The FAA has been highly proactive in anticipating and planning to reduce delays nationally.  We have been monitoring airline schedules six months into the future, in order to better anticipate potential problems at the major airports before they occur and we are ready to respond with “Congestion Action Teams” to any airports where delays appear likely to increase significantly.

While the FAA also strives to maintain as efficient an air traffic system as possible, the reality is that delays are caused for many different reasons, including weather.  Increasing our ability to deliver air traffic arrivals and departures safely in bad weather is also one of the areas NextGen is poised to tackle.  We are working on capabilities that allow for continued use of parallel runways in low visibility conditions by providing precise path assignments that provide safe separation between aircraft assigned on parallel paths, restoring capacity and reducing delays throughout the system. 

We are already safely reducing separation between aircraft approaching parallel runways at Boston, Cleveland, Philadelphia, St. Louis and Seattle.  In good visibility, Seattle’s pair of parallel runways, together, could handle roughly 60 operations per hour; poor visibility conditions cut that rate in half.  Even in poor visibility, these capabilities now safely allow a rate of about 52 operations per hour, a significant improvement for the airport and its users.  We are also beginning to see similar benefits in Boston.

We have already seen these improvements pay dividends.  In the summer of 2008, we saw improvements in delays.  From June – August 2008, nationwide there were 1.8 million scheduled flights, with 23% delayed, according to BTS data.  The largest share of those delays can be traced back to weather – 44%, while the remainder was caused by a combination of other factors.

As we gear up for the summer of 2009, we are continuing our work on implementing measures to minimize delays.  The economic downturn has resulted in lower passenger demand with a corresponding decline in overall operations and delays.  However, in certain congested areas, we are not seeing as much of a downtown in traffic or delays.  For example, in New York, the drop in the demand for travel has been about 5%, compared to other large hubs, such as Chicago, which is down 7.5%, and Houston which is down nearly 10%.  Consequently, the reduction in delays is not as pronounced in New York as in other parts of the country.  With the decreased operations this year, we would expect on-time performance to be higher than last summer, but will be dependent on the severity of summertime weather. 

Despite the downturn in traffic, FAA is continuing to work aggressively to implement operational and structural improvements so we are prepared to handle the inevitable up-tick in traffic in the future.  For example, the Automatic Dependant Surveillance Broadcast system (ADS-B), a system that moves air traffic control from a system based on radar to one that uses satellite-derived aircraft location data, is in use in southern Florida and in the Gulf of Mexico, where we have never had radar coverage before.  We are now on our way to national deployment of broadcast services.    

The Department anticipates some impact to operations because of various runway construction improvements.  The Port Authority of New York and New Jersey is currently in the process of working on four taxiway and utility projects at JFK that has closed a runway there for the past few weeks.  Other runway construction will necessitate runway closures at JFK from March-June 2010 and from September 16 - 29, 2010.  During the construction, three of the four runways at JFK will always be available and every effort is being made to minimize the impacts to operations during the construction project.  These efforts include the Port Authority working with the airlines and the FAA to phase the project and include strong contracting terms to make sure the project gets done on time. 

The FAA maximizes the use of airspace, especially in congested areas such as New York, through targeted airspace and procedures enhancements.  Continuing work in the New York area includes integration of precision procedures such as area navigation and required navigation performance (RNAV/RNP), relocation and expansion of airways, airspace reconfiguration, and creation of optimal descent procedures.  We have also limited scheduled operations at LGA, JFK and EWR and continue to work on the New York/New Jersey/Philadelphia (NY/NJ/PHL) Airspace Redesign, the necessary prerequisite to successful implementation of NextGen.  The FAA has also accelerated the installation of Airport Surface Detection Equipment, Model X (ASDE-X) at JFK, which in addition to increasing safety, has also increased surface situational awareness for controllers and airlines resulting in more efficient operations.

A number of the operational improvements we have made so far are a result of collaborative efforts derived from the New York Aviation Rulemaking Committee (NY ARC or ARC), which convened in the fall of 2007 in order to prevent a repeat of the summer 2007 in New York.  One of the products from the ARC was a list of ideas from various stakeholders that would help improve air traffic control operations, totaling 77 in all.  Of these 77, FAA has substantially completed 30.  Thirty-seven of these are ongoing, in various stages of assessment or implementation.  Two of these include the removal of a hotel and a waste facility and may be outside the FAA’s authority to control.  Of the remaining 10, seven are part of our NextGen planning and implementation, while the remaining three are dependent upon the successful completion of NY/NJ/PHL Airspace Redesign.

In our ongoing efforts to reduce delays, the FAA plans to continue to keep the limits on scheduled operations in place at LGA, JFK and EWR, while this Administration considers its next steps with regard to a long-term congestion management solution for the New York area airports.  Just last week, Secretary LaHood announced that DOT is proposing to rescind the slot auction rules that were finalized for LaGuardia, JFK and Newark last October and has promised to talk with aviation and consumer stakeholders in New York this summer about the best way to move forward.  The FAA continues to seek, develop, and implement congestion and delay solutions system-wide.  While we have a strong focus in New York because of its impact on the rest of the NAS, we continue to work to improve the safety and efficiency of the entire system nationwide.     

The recent H1N1 flu outbreak is another important issue that is getting significant attention from the Department.  Let me start by reiterating an earlier comment by Secretary LaHood:  It is safe to fly.  And one of the reasons it is safe to fly is that the Department of Transportation and the FAA, together with several other government agencies, have been working hard to ensure that our aviation system is prepared to handle the kinds of concerns raised by the recent H1N1 outbreak. 

The Department has been participating in an interagency working group led by the Homeland Security Council since 2006.  We prepared and exercised a Department-wide pandemic influenza plan. Our operating administrations also prepared and exercised their own plans.  Consequently when the 2009 H1N1 outbreak occurred, a response scheme was already in place and we were ready to take immediate action.  Even though H1N1 did not exactly follow the model that the U.S. Government had anticipated (it was a swine flu outbreak in North American rather than an avian-based influenza coming from overseas), the planning components and exercises previously conducted ensured that DOT staff could rapidly and appropriately respond as the situation warranted.  Over the weeks following the initial outbreak the measures taken and the communications initiated were scaled up and then down as more information about the virus became available.   

During the initial stages of the 2009-H1N1 outbreak, the US government opted to not conduct either entry or exit health screening of international passengers, based on CDC’s technical expertise and following advice from the World Health Organization.  Nonetheless, questions were raised regarding the airlines’ authority to deny boarding to a passenger who may have the 2009 H1N1 virus.  Airlines themselves do have the authority to refuse transport to any person who has a serious communicable disease to the extent permitted by their contract of carriage and the Department’s disability regulation.  The Department’s disability regulation allows an airline to refuse transportation on the basis of a communicable disease if the passenger’s condition is both readily transmitted under conditions of flight and represents a significant health risk to others and a less restrictive alternative than refusal to transport is not available.   Additionally, CDC has authority to quarantine inbound international passengers suspected of having specific communicable disease including any "novel influenza virus of pandemic potential.”

Thank you again for this opportunity to testify.  We would be happy to answer any questions that you may have.

JOINT STATEMENT OF

CHRISTA FORNAROTTO,
ACTING ASSISTANT SECRETARY FOR AVIATION AND INTERNATIONAL AFFAIRS,
U.S. DEPARTMENT OF TRANSPORATION,
AND
JOHN M. ALLEN,
DIRECTOR, FLIGHT STANDARDS SERVICE,
OFFICE OF AVIATION SAFETY,
FEDERAL AVIATION ADMINISTRATION,

ON

OVERSIGHT OF HELICOPTER MEDICAL SERVICES,

BEFORE THE

HOUSE COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE,
SUBCOMMITTEE ON AVIATION,

APRIL 22, 2009.

Chairman Costello, Ranking Member Petri, Members of the Subcommittee:

Thank you for inviting us here today to discuss the oversight of helicopter emergency medical services (HEMS).  Both the Federal Aviation Administration (FAA) and the Office of the Secretary of the Department of Transportation (DOT) have distinct roles to play in the oversight of these important operations, and this joint testimony will describe those roles.

The testimony will first address the FAA’s role and some of the agency’s recent efforts in HEMS safety and the second portion of the testimony will focus on DOT’s economic authority as it would be affected by Representative Altmire’s bill, H.R. 978, the “Helicopter Medical Services Patient Safety, Protection and Coordination Act”.

FAA Safety Oversight

HEMS operations are a critical aviation service provided to the medical community.  A HEMS flight is often crucial to getting a critically ill or injured patient to the right medical facility as efficiently as possible, often during “the golden hour,” the minutes or hours following a trauma when rapid intervention is most beneficial and effective for the patient.  While the medical treatment aspect is obviously an essential part of a HEMS operation, the FAA’s mission is to ensure the safety of the air transportation portion of the operation.  The best medical treatment in the world will not make a difference if the patient and crew cannot be transported safely.

Accordingly, we are taking steps to enhance the safety of this growing industry.  To put this issue in context, FAA issues operating certificates to interstate carriers under parts 121 and 135 of title 14 of the Code of Federal Regulations.  Carriers may choose to operate intrastate only, but FAA operating certificates are for interstate operations.  There are currently 73 operators authorized to conduct interstate HEMS operations.  There are approximately 850 air medical transportation helicopters in service.  And, six of the 50 largest operating certificate holders in terms of number of aircraft operating under parts 121 and 135 are authorized to conduct HEMS operations.  In fact, the tenth largest air carrier in the U.S. is a HEMS operator.

As with all the sectors of the industry that we regulate, we always want to make sure that the HEMS community is operating as safely as it can.  Ideally, there would be a 0% accident rate.  Unfortunately, there was a spike in the number of fatal HEMS accidents in 2008.  From 2002 – 2007, there were 26 fatal HEMS accidents, an average of 4.3 accidents per year.  Over this time period, there were also 59 non-fatal accidents, an average of 9.8 per year.  In 2008 alone, there were 8 fatal HEMS accidents and 5 non-fatal accidents.  These 34 accidents over those seven years have resulted in 89 fatalities, 71 of whom were crewmembers.

In reviewing the circumstances and causes of these accidents, our experts noticed four common factors:

• Controlled Flight Into Terrain (CFIT)
• Loss of control of the aircraft in flight
• Inadvertent flight into Instrument Meteorological Conditions (IMC) resulting in loss of control
• Night operations

Upon reviewing these accidents further, the FAA identified the need for certain measures to improve the safety of these operations, including:

• Strengthening operational control, by clearly identifying the entity accountable for the safety of the operation
• Increasing pilot skill in adverse weather operations
• Applying risk assessment protocols in flight decisions
• Fostering greater collaborative decision-making between ground and flight personnel; and
• Developing a stronger safety culture in HEMS operations.

Building a stronger safety culture in this industry is essential, as these operations take place in very demanding environments.  As such, the pilot’s judgment and risk assessment is critical in the evaluation of whether an air ambulance flight request should be accepted, especially when weather or other conditions put flight delay or cancellation on the table.  This first rule never changes:  the pilot in command makes the call to “go” or “no go.”  That’s the linchpin of a safe system.  The pilot must have the ability and support from his or her management to postpone a flight when the risk to the crew and the patient is too great.  And at the same time, the pilots should take into account the assessments from ground personnel regarding conditions at the landing sites.  The FAA believes that the operator must create a safety culture and environment that promotes and supports the safety decisions and good judgment exercised by the pilots.  This safety culture is the indispensable context for enabling the use of the newest technology and maximizing the benefits of technology in flight operations.  This impact of a positive safety culture on operational safety must be recognized by the entire HEMS industry.

It is important in establishing this safety culture to differentiate between the services that HEMS operators offer from other types of emergency services that may be provided by air.  The former is an air ambulance; that is, it is an ambulance service that is provided by air transportation rather than by a ground vehicle, but from a flight safety standpoint is first and foremost, transportation.  Other air emergency services may involve search and rescue operations or emergency evacuations by air, which are operations of a different and more specific nature, and thus may require a different assessment of risk than a HEMS operation.  For example, a HEMS operator may assess that severe weather precludes picking up a particular patient at a certain time, and that the patient would be better served to be safely transported by ground.  In an emergency evacuation operation, where flood waters are rising because of inclement weather, a helicopter operation may be the only way to save people’s lives.  This entails a different assessment of the situational risks for the pilots and those being transported.

The National Transportation Safety Board (NTSB) has made several recommendations to address the safety concerns specific to HEMS operations.  In response to the NTSB’s recommendations and other issues that we have seen in the HEMS industry, the FAA has taken a number of steps.  Since a formal rulemaking requires more deliberate speed, the FAA moved forward with several voluntary compliance measures in order to effect immediate safety benefits.  In particular, the FAA wanted to address raising the weather minima to higher standards.  Weather minima dictate the required horizontal visibility (in miles) and distance an aircraft must keep from clouds to engage in Visual Flight Rules (VFR) flight to help ensure adequate visibility for safe flight.  The required weather minima generally vary depending on (1) the class of airspace a pilot is flying through, (2) whether the flight is during the day or at night, (3) whether the pilot is flying a helicopter or an airplane, and (4) what part of the regulations govern the flight.  The FAA also wanted to address establishing operational control/dispatch systems centers for all operators to helping flight planning and risk assessment, establishing formal risk assessment programs, and implementing new technologies.

In 2004, the FAA and industry created a joint task force, which formulated and implemented several voluntary air medical transport safety initiatives.  We brought together the Association of Air Medical Services, Helicopter Association International, the National Emergency Medical Services Pilots Association, and industry operators to set the stage for the implementation of voluntary safety programs.  From 2005 – 2006, FAA issued multiple notices, bulletins, advisory circulars, and the like, to provide guidance to the industry that would improve operational safety and promote a proactive safety culture among HEMS operators.  This guidance included creating operational risk assessment programs for HEMS, including training to all flight crews, including medical staff; amending Visual Flight Rule (VFR) weather requirements; and establishing operational control/dispatch centers.

FAA also established a special committee to develop Helicopter Terrain Awareness and Warning System (HTAWS) standards.  This technology helps prevent CFIT by providing aural and visual alerts to pilots of terrain or other obstructions that may exist along a flight path.  As a result of this committee’s work, the FAA issued a technical standards order for HTAWS based on minimum operational standards in December 2008.

Because of these safety initiatives, the period from 2004 through 2007 showed a drastic reduction in helicopter air medical transport fatal accidents.  However, the upward trend in 2008 was troubling and prompted a more aggressive response.  The FAA, working again with representatives from the industry, revised the operation specification (OPSPEC) for HEMS operators to require:

• Increased weather minima for Part 135 Visual Flight Rules (VFR) flight by raising ceilings and increasing visibility requirements;
• That if one segment of a HEMS operation is conducted under Part 135 VFR, all segments of the operations be conducted in accordance with the increased Part 135 weather minima as specified in the OPSPEC;
• Specific flight planning for VFR operations (e.g., a pilot must physically identify and document the highest obstacle in the planned route and plan to avoid it);

The OPSPEC also allowed for more instrument flight rule (IFR) operations by permitting pilots to use weather reporting sources that are within 15 miles of the landing location.  These requirements have been in effect since January 2009.  All of the HEMS operators are now operating in accordance with the OPSPEC.

Through the years, this evolving industry has been very responsive to improving safety.  In January 2009, the FAA conducted a survey of all HEMS operators to find out how many have implemented FAA-recommended best practices.  We found the response to be overwhelming.  Well over 80% of the operators have voluntarily adopted training programs and operational control center practices that the FAA has recommended to improve safety.  Almost 90% are using radar altimeters, while just over 40% have voluntarily equipped some or all of their fleet with HTAWS.  We expect this percentage will increase now that the HTAWS technical standards order has been published.

We recognize that relying on voluntary compliance alone is not enough to ensure safe flight operations.  In that regard, the FAA has initiated a formal rulemaking project that will address many of the HEMS initiatives and best practices put forth in the advisory circulars, orders and notices issued over the last several years, as well as the most recent revisions to the OPSPEC.  The FAA Rulemaking Council has given approval to begin drafting a Notice of Proposed Rulemaking, which we are aiming to have published in late 2009 or early 2010.

We appreciate both Congressman Salazar’s and Congressman Altmire’s efforts in developing their respective bills to continue to raise the bar on HEMS safety.  However, the FAA does not believe that new safety legislation is needed at this time.  Given the current regulations that govern emergency medical services flights, the voluntary safety measures already being implemented by the industry, as well as the rulemaking efforts underway, the FAA believes that the safety measures encompassed in H.R. 1201 are already being addressed.  The FAA and the Department as a whole also understand that the intent of H.R. 978 is not to infringe upon the FAA’s plenary safety authority over civil aviation.  To that end we will continue to work to ensure that there are no unintended consequences of either bill that might adversely affect HEMS safety.

Economic Regulation

There is however, another area of concern with the proposed bill.  H.R. 978 contains several provisions that seek to provide States with additional authority to regulate helicopter air ambulances.  Under current law, air ambulances are air carriers subject to the Airline Deregulation Act of 1978 (ADA).  The ADA phased out the government’s control over air carrier prices, routes and services, relying instead on competitive market forces.  In keeping with the statute and judicial interpretations, the Department of Transportation has found the ADA preemptive of State economic regulation of air ambulance services (as air carriers) related to prices, routes and services, but not preemptive of State regulations concerning patient medical care.  For example, while the Department has explained that State rules related to the economics of air ambulances are preempted, such as requirements for certificates of need, rate regulations, and geographic service coverage limitations, it has also noted that State regulations covering emergency medical equipment, qualifications of medical personnel, and patient care are not preempted under the ADA. 

The Department of Transportation supports the authority of States to issue FAA-compliant regulations on patient care that would affect air ambulance operations.  We recognize the interest States have in ensuring that medical professionals on board air ambulances are properly qualified and that air ambulances arrive properly equipped with the medical and communications equipment necessary to care for patients and communicate with emergency medical services (EMS) personnel on the ground.  Although State medical regulations that would affect air ambulances must always be compliant with FAA safety requirements, we believe that there is a wide range of medically-related interests that States can and currently do regulate without encroaching on the Department of Transportation’s economic authority under the ADA.  We further believe that nothing in the ADA as it exists prohibits a State from requiring compliance with medically-needed measures. The Department takes this work seriously, and fully supports the critically important work of State EMS Authorities in providing medical oversight of air ambulances.

We have strong concerns, however, that carving out statutory exemptions to the ADA for purposes of allowing States to regulate economic issues involving one segment of the aviation industry will lead to many of the same problems that Congress sought to avoid when it passed the ADA’s preemption provision over 30 years ago. For example, we are aware that many, if not most, air ambulance service providers operate in more than one State.  For this reason, we are concerned that fifty separate State regimes addressing the economic regulation of air ambulances could unnecessarily complicate the industry and hinder interstate operations.  We also believe that State regulation of the economic issues could serve to limit market entry and could ultimately have a negative effect on available services.  Market access in aviation services, generally, has been instrumental in promoting a safe, efficient and responsive industry and we believe that these same economic principles may be applicable to air ambulance services. 

Most importantly, however, we believe that before this Committee considers legislating in this area, that it consider carefully whether practical, as opposed to theoretical, problems exist with the current system governing air ambulance services.  For example, among those testifying before you today are two groups representing participants in the air ambulance industry on both the provider and State government levels.  At the Department, we have met with both of these organizations and what concerns us most is the lack of agreement, on not only the nature of the problems with the existing system, but whether any serious problems exist at all.  We recognize that there have been some recent tragedies relating to air ambulance services, but it remains unclear whether these are relatively isolated incidents or indicative of more systemic national problems.

Should Congress decide that regulating entry and capacity is appropriate for one segment of the airline industry, other sectors of the industry may seek similar protection from competition.   For this reason, we urge that the Committee move carefully with a thorough assessment of all facts relevant to this particular segment of the industry.

Thank you for the opportunity to testify on this important subject.  We look forward to working with the Committee to address the HEMS safety issues as well as the economic concerns raised in H.R. 978.  We will be happy to answer any questions you may have.