Essential Air Service: Public Laws Affecting Distance Determinations

Regional Aviation News
Updating Developments in Regional Aviation

Essential Air Service: Public Laws Affecting Distance Determinations

March 14, 2003

The Essential Air Service distance determination rule became a part of 49 U.S.C. 41742 with the passage of H.R. 2084 on 9/30/99. The mileage determination in PL 106-69 did not designate the criteria for choosing the route to be used for measuring the distance. In April, 2000, Congress passed H.R. 1000, the Wendell H. Ford Aviation and Investment Reform Act for the 21^st Century (AIR-21), amending 49 U.S.C. 41742.

H.R. 2084 Passed 9/30/99 PL 106-69 Amended 49 U.S.C. 41742

Sec. 332) Prohibits the provision of essential air service subsidies to communities in the 48 contiguous States that are fewer than 70 miles from the nearest large or medium hub airport, or that require a rate of subsidy per passenger in excess of $200, unless such point is greater than 210 miles from the nearest large or medium hub airport.

Wendell H. Ford Aviation and Investment Reform Act for the 21^st Century (AIR-21) H.R. 1000 Passed 4/5/2000 PL 106-181 Amended 49 U.S.C. 41742

SEC. 205. DETERMINATION OF DISTANCE FROM HUB AIRPORT.

The Secretary may provide assistance under subchapter II of chapter 417 of title 49, United States Code, with respect to a place that is located within 70 highway miles of a hub airport (as defined by section 41731 of such title) if the most commonly used highway route between the place and the hub airport exceeds 70 miles.

The language in the second amendment, PL 106-181 clarifies the criteria for choosing the route to be used in determining the distance. The language in PL 106-181 states “The Secretary may provide assistance . . “; however it does not state that the DOT only has to follow the guidelines provided by this new language if the Secretary provides assistance. The language in PL 106-181 is a clarification of the language in PL 106-69 and should be adhered to when distance determinations are made by the DOT. At no point does the language in this amendment state that the parameters used to determine the route is an option to be used at the DOT’s discretion.

Even though the language in PL 106-181 does not specifically state to use “the most commonly used highway route” when calculating distances which exceed the 210 mile rule, it is implied. It does not make sense that the author of this amendment intended to use one criterion for choosing the route for less than 70 miles and provide no parameters for determining measurements greater than 210 miles. Consistency is critical.

Language should be submitted to Congress to effect legislation that would designate consistent methods to be used to determine distance.

By: Barbara Jackson, Regional Aviation Partners