Segment 1 Of 2     Next Hearing Segment(2)

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PLEASE NOTE: The following transcript is a portion of the official hearing record of the Committee on Transportation and Infrastructure. Additional material pertinent to this transcript may be found on the web site of the Committee at []. Complete hearing records are available for review at the Committee offices and also may be purchased at the U.S. Government Printing Office.







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Printed for the use of the

Committee on Transportation and Infrastructure

BUD SHUSTER, Pennsylvania, Chairman

WILLIAM F. CLINGER, Jr., Pennsylvania
THOMAS E. PETRI, Wisconsin
HOWARD COBLE, North Carolina
JOHN J. DUNCAN, Jr., Tennessee
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WILLIAM H. ZELIFF, Jr., New Hampshire
BILL BAKER, California
JAY KIM, California
STEPHEN HORN, California
BOB FRANKS, New Jersey
PETER I. BLUTE, Massachusetts
JOHN L. MICA, Florida
ZACH WAMP, Tennessee
RANDY TATE, Washington
RAY LaHOOD, Illinois

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NICK J. RAHALL II, West Virginia
ROBERT A. BORSKI, Pennsylvania
ROBERT E. WISE, Jr., West Virginia
BOB CLEMENT, Tennessee
ELEANOR HOLMES NORTON, District of Columbia
PAT DANNER, Missouri
JAMES E. CLYBURN, South Carolina
BOB FILNER, California
FRANK MASCARA, Pennsylvania
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GENE TAYLOR, Mississippi


JOHN J. DUNCAN, Jr., Tennessee, Chairman

JERRY WELLER, Illinois, Vice-Chairman
WILLIAM F. CLINGER, Jr., Pennsylvania
HOWARD COBLE, North Carolina
WILLIAM H. ZELIFF, Jr., New Hampshire
JAY KIM, California
RANDY TATE, Washington
RAY LaHOOD, Illinois
BUD SHUSTER, Pennsylvania
(Ex Officio)
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PAT DANNER, Missouri
JAMES E. CLYBURN, South Carolina
(Ex Officio)




OCTOBER 19, 1995

Branham, Jim, Chief Deputy Director, California Department of Forestry and Fire Protection, on behalf of the National Association of State Foresters
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    Breda, Dan, Sheriff, Chelan County, Washington, and Chairman, Aviation Committee, National Sheriffs' Association

    Brooks, David L., Captain, Costa Mesa Police Department, Costa Mesa, CA, on behalf of the AirBorne Law Enforcement Services

    Carpenter, Larry, Sheriff, Ventura County, Ventura, CA

    Coyne, James K., President, National Air Transportation Association

    Driscoll, Edward J., President and CEO, National Air Carrier Association, accompanied by William Langton, President, Southern Air Transport

    Hatfield, Jerry E., Chief Trooper Pilot, Alabama Department of Public Safety

    Jensen, Frank L., Jr., President, Helicopter Association International

    Perriguey, Charles D., Jr., President, Airborne Law Enforcement Association

    Rich, Deborah, Division Director, EMS, Travis County, TX

    Rogers, Wanda L., President, Rogers Helicopters, Inc.
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    Branham, Jim

    Breda, Dan

    Brooks, David L

    Carpenter, Larry
    Coyne, James K
    Driscoll, Edward J
    Hatfield, Jerry E

    Jensen, Frank L., Jr

    Langton, William G

    Perriguey, Charles D., Jr

    Rich, Deborah

    Rogers, Wanda L

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Branham, Jim, Chief Deputy Director, California Department of Forestry and Fire Protection, on behalf of the National Association of State Foresters:

NASF White Paper on State Forestry Aircraft


Breda, Dan, Sheriff, Chelan County, Washington, and Chairman, Aviation Committee, National Sheriffs' Association:

National Sheriffs' Association resolution in opposition to P.L. 103–411, June 14, 1995

Article, ''How Will FAA Regulations Affect Sheriffs' Aircraft'', Sheriff magazine, Mar/April 1995

Editorial, ''Will the FAA Pull the Plug on Helicopter Rescue'', Rescue magazine, Nov/Dec 1994

National Sheriffs' Association comment on FAA proposed Advisory Circular 00–1.1 March 21, 1995

National Sheriffs' Association, analysis of P.L. 103–411

Memo, Interagency Committee for Aviation Policy, implementation of P.L. 103–411, January 6, 19956

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National Sheriffs' Association, response to FAA Invitation for Comment on ''Compensation'' and ''Commercial Purposes'' Issues, August 25, 19940

Driscoll, Edward J., President and CEO, National Air Carrier Association:

National Air Carrier Association Point Paper on Restricted Category Aircraft (with attachments)0

National Air Carrier Association Point Paper on C–130 Military Surplus Aircraft in Civil Transportation1


Article, ''GSA Orders Return of 'Illegally Removed' Aircraft'', Aviation Daily, October 11, 19950

Jensen, Frank L., Jr., President, Helicopter Association International:

Memorandum of Understanding, between the Airborne Law Enforcement Association, Inc., and the Helicopter Association International, Inc., May 27, 1987


Transcript of interview from Good Morning America, August 5, 1995

Perriguey, Charles D., Jr., President, Airborne Law Enforcement Association:

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Position Paper, Public Service Aircraft

Position Paper, Surplus Military Aircraft Re-Utilization

Rich, Deborah, Division Director, EMS, Travis County, TX:

Attachment A, Legal Interpretation of ''For Commercial Purposes''

Attachment B, Newspaper articles about STAR Flight


    Aerial Firefighting Industry Association, statement

    County of San Bernardino, Position Statement and Comments on Public Law 103–411

    Dailey, Hon. Jim, Mayor, City of Little Rock, AR, letter to Hon. Ray Thornton, a Representative in Congress from Arkansas, October 5, 1995

    Gerace, Joseph A., Sheriff, Chautauqua County, New York, statement on the Starflight Medivac Helicopter Program

    Holmes, Larry J., Orange County Fire Authority, Director of Fire Services, letter, October 17, 1995
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    Rohrabacher, Hon. Dana, a Representative in Congress from California, statement

DECEMBER 7, 1995

    Broderick, Anthony J., Associate Administrator, Regulation and Certification, Federal Aviation Administration, U.S. Department of Transportation

    Hyland, Paul V., President, Mercy Flight Central, Inc. and EMS Air Services of New York, Inc

    Joseph, Stephen L., Esquire, on behalf of T&G Aviation, Inc., accompanied by Woody Grantham, President, T&G Aviation, Inc

    Pressler, Hon. Larry, a U.S. Senator from South Dakota

    Schechter, Claudia, Director of Operations, U.S. Department of the Interior, acccompanied by Art Gary, Solicitor, Office of Aircraft Services, and Tom Monterastelli, Principal Technical Representative, Office of Aircraft Services

    Shinnamon, Colonel Donald L., Chairman, Aviation Committee, International Association of Chiefs of Police

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    Lipinski, Hon. William O., of Illinois


    Broderick, Anthony J

    Hyland, Paul V

    Joseph, Stephen L., Esq

    Pressler, Hon. Larry

    Schechter, Claudia

    Shinnamon, Col. Donald L


    Aylesworth, Howard, Jr., Director, Airworthiness & Regulation Aerospace Industries Association of America, statement
    Driscoll, Edward J., President and CEO, National Air Carrier Assocation, Inc., exchange of correspondence between National Air Carrier Assocation, Inc. and the Federal Aviation Administration
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    Furse, Hon. Elizabeth, a Representative in Congress from Oregon, letter to Rep. Oberstar, dated November 14, 1995
    Berrong, James, Sheriff, State of Tennessee, letter, February 16, 1996

    Broadwell, William R., Executive Director, Aerial Firefighting Industry Association, H.R. 1320 white paper and addendum

    Colson, Frank J., Executive Director, U.S. Department of Defense, Policy Board on Federal Aviation, letter, February 22, 1996

    Curry, Paul R., Sergeant, Legislative Liaison, San Bernardino County Sheriff's Department, letter and proposed amendment to Public Law 103-411

    Dorsey, Dennis, Action Helicopter Service, memo, October 17, 1995, and letter from Laquinnia Lawson, Manager, Flight Standards District Office, Oklahoma City, OK, November 4, 1995

    Ergle, Ken, Sheriff, Marion County, Florida, letter, January 12, 1996

    Fois, Andrew, Assistant Attorney General, Office of Legislative Affairs, U.S. Department of Justice, letter, April 18, 1996

    Garaufis, Nicholas G., Chief Counsel, Federal Aviation Administration, U.S. Department of Transportation, letter and White Paper on H.R. 1320
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    Harrington, David R., Manager, Air Transportation Division, Flight Standards Service, Federal Aviation Administration, U.S. Department of Transportation, list of equipment items required for civil aircraft operations under Part 135 of the Federal Aviation Regulations

    Hinson, David R., Administrator, Federal Aviation Administration, U.S. Department of Transportation, Advisory Circular on Government-Owned Aircraft, Issued April 19, 1995

    Holmes, Larry J., Orange County Fire Authority, Director of Fire Services, letter, October 17, 1995

    Kyes, Ford N., President, Association of Air Medical Services, statement

    Marcy, Kristine M., Acting Assistant Director, Prisoner Services Division, U.S. Marshals Service, U.S. Department of Justice, letter, May 1, 1996

    Matsui, Hon. Robert T., a Representative in Congress from California, letter from Glen Craig, Sheriff, Sacramento County Sherif's Department, Sacramento, CA

    Neighbors, B.J., President, Pacific Air Logistics, Inc., letter, October 17, 1996

    State of Alaska, statement
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    Stearns, Hon. Cliff, a Representative in Congresses from Florida, letter, February 7, 1996

    Stewart, Randy, Chairman, Joint Airworthiness and Operations Task Force, memorandum, April 17, 1996

    Thomas, Bill, Executive Director, Tennessee Sheriffs Association, letter


U.S. House of Representatives,
Subcommittee on Aviation,
Committee on Transportation and Infrastructure,
Washington, DC.
    The committee met, pursuant to notice, at 9:32 a.m. in room 2167, Rayburn House Office Building, Hon. John J. Duncan (chairman of the subcommittee) presiding.

    Mr. DUNCAN. I'd like to call this subcommittee hearing to

    First of all, I want to welcome everyone here. Today's hearing focuses on a fairly narrow area of aviation law, but one that has created, I suppose you could say, quite a fuss and quite a bit of interest among State and local law enforcement agencies and certain people in the private sector.
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    As you can see, we have a long list of State and local officials who are testifying today. Frankly, many more wanted to testify, and I regret that we had to turn quite a few people away. There is clearly a great deal of interest in this issue, I suppose you could say, outside of Washington.

    The importance of this issue was first brought to my attention by our colleague, Congressman Dana Rohrabacher of California. He had been contacted by constituents in his District.

    The problem seems to be that for many years government agencies operated their aircraft free of most Federal regulations. Now, as a result of legislation passed last year changing the definition of ''public aircraft,'' many State and local agencies must comply with FAA rules when their planes carry people for non-law enforcement purposes and for other reasons, just passenger-type service, I guess you could say. This certainly could make these flights safer, but the fact is that it increases the cost of operation.

    At a time when governments at all levels are tightening their belts, these new FAA rules could be viewed as another unfunded Federal mandate. Agencies that are unable to bear these costs and unable to get an FAA certificate for their aircraft are then limited in how their aircraft can be used.

    The issue is complicated by the fact that many private sector aircraft operators can provide the services now performed by public aircraft. They believe that public aircraft in some ways are stealing a portion of their business.
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    Obviously, we must be concerned when government agencies are performing a service that the private sector could perform just as well.

    Many of these same issues are raised by H.R. 1320, which was introduced by a very respected colleague, Mr. Oberstar, which is also an issue in our hearing today.

    As many of you know, this hearing was originally scheduled to begin on Tuesday. Unfortunately, we had to cancel that session due to a reschedule of the House. We do plan to reschedule that hearing at a later date. At that time we will hear from the Federal Government witnesses and from perhaps other witnesses who we were unable to accommodate today.

    Nonetheless, I look forward to hearing from our witnesses, many who have traveled from as far away as California, and I look forward to learning more about this issue.

    At this time I'll call on the ranking Member, Mr. Oberstar.

    Mr. OBERSTAR. Thank you very much, Mr. Chairman, first for calling the hearing, for diving into a subject that has much more in the substance of it than meets the eye on the surface of it.

    When first Mr. Clinger and I delved into this subject, we thought it was a simple exercise that we'd be over with in a matter of hours. It turned out it is much more complicated than any of us anticipated, with far broader interests and concerns, and one that did not admit of a rather simple treatment, as we learned in the course of the House/Senate conference dealing with an amendment to the Senate legislation by Mr. Pressler of South Dakota.
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    This topic, we learned, is not as esoteric as it seems. It has some very practical and concrete concerns and applications, and there is so much interest, as you noted, Mr. Chairman, because the issue is vital to both public and private sectors, alike.

    People who are testifying today feel very strongly. They may not be the same ones who testified at other hearings of the subcommittee in earlier years, but they represent the same interests and the same concerns.

    At the end of the process which you have wisely undertaken, I hope all will come to have a better understanding of the complexity of this problem and how government entities inter-relate with each other and with the private sector.

    Public use aircraft are unique in that they are not certified by the FAA and FAA has no authority to regulate them. Often these are surplus military aircraft used by Federal, State, or local governments for very good and valid purposes, but because they are not regulated by FAA, those aircraft often are less expensive to operate than civil aircraft.

    Because FAA regulations are not imposed on operations of public use aircraft, there is question in the minds of many people whether they are as safe as civil aircraft. Indeed, that was the very concern that caused Senator Pressler to amend the law to narrow the type of operations eligible to be conducted by public use aircraft.

    Of course, his motivation came out of that terrible tragedy in our neighboring State of South Dakota, next door to my State of Minnesota. A very fine, very decent, and very well-liked and popular governor was killed in a tragic crash with a public use aircraft.
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    Senator Pressler and I have talked about this issue many times during that time and subsequently, and he thought that he had addressed the outstanding concerns of Federal, State, and local governments with his bill. But, nonetheless, as with all legislation, problems have arisen from the legislation and from the implementation of the legislation.

    First, transport of passengers can no longer be performed by public use aircraft. That means, whether a local government is moving prisoners or moving firefighters, they have to use civil aircraft—aircraft that are in compliance with FAA regulations.

    The result of this requirement, as interpreted by FAA, is that prisoners cannot be transported while restrained in handcuffs. FAA does not permit passengers to be forcibly restrained because in an emergency they would be unable to protect themselves or be safely evacuated from an aircraft.

    Another problem is firefighting. We saw much of that last summer and the summer before when there were severe fires out mostly in the western States, but also in my own northern Minnesota District in a national forest. Firefighting activities are permitted to be conducted by public use aircraft, but the transport of firefighters to the area of the fire is not allowed with public use aircraft.

    We ran into a lot of problems in northern Minnesota getting firefighters to the places where needed and getting firefighters from Minnesota out west where they were needed in major fires last year and the year before.

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    There is a legitimate concern by government agencies about restrictions on operation of public use aircraft. There are also private sector concerns about use of public aircraft. FAA's original interpretation of the law that prohibits use of public use aircraft for compensation or hire precludes the reimbursement of operating costs involving one use of aircraft by one government agency for another government agency.

    Many communities on the west coast thought that this would stop the use or at least hamper the use of available firefighting equipment in an emergency.

    Then Speaker Foley and other Members of the Washington State delegation worked with our subcommittee to craft an exemption to the prohibition on cost reimbursement.

    Each step along the way involves some new complexity, some new aspect, some new twist that makes this whole issue so complicated.

    There are many other aspects that I would discuss, and I think those will come up in the course of this hearing.

    I would like to address just a few words about H.R. 1320, a bill I've introduced to deal with the matter of surplus military aircraft. Those are aircraft that are certified by FAA but limited to—a certification that is limited to certain types of operations. As with public use aircraft, restricted use aircraft cannot be operated in commercial purposes in competition with civil aircraft. But often those aircraft are moved out of the country and they are re-registered in other countries, and too often restricted use aircraft are found transporting cargo in violation of commercial purposes restrictions in law.
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    Those operations directly affect operators of U.S. civil aircraft who have bought their aircraft, complied with FAA regulations, complied with the law, and now they are competing in an unfair environment because such aircraft are less expensive to operate and, because they don't have to comply with FAA regulations, less safe. That's not fair.

    The legislation that I have introduced would require closer scrutiny, better inter-agency coordination of the transfers of such aircraft and movement of such aircraft.

    The Administration has yet to express their views on this issue, but I know that their position is going to be that the Administration doesn't require additional authority to ensure that restricted use aircraft are operated only for the purposes for which they are certificated. We will see.

    I think we'll learn a great deal from the witnesses. I'm very pleased, Mr. Chairman, you have endeavored to delve into this very complex legalistic subject, and it is great to have a judge here presiding over this issue.

    Mr. DUNCAN. Thank you, Mr. Oberstar.

    We are honored to have the chairman of the full Committee on Government Reform and Oversight, a former ranking Member of this subcommittee, Mr. Clinger, who is a valuable member still of this subcommittee.

    Mr. Clinger, do you have any statement at this time?
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    Mr. CLINGER. Thank you very much, Mr. Chairman. I do not have an opening statement except to say that I thought and hoped that this issue had been put to bed some time ago, and I'm somewhat dismayed to see that we are revisiting it. As both you and Mr. Oberstar have indicated, this was an issue that we spent a great deal of time on in the past, and as a result one of the provisions that I got included was the Clinger exception, which I thought would be helpful in this regard. Apparently it is still causing problems, so I'm very anxious to hear the testimony of the witnesses this morning and see what further needs to be done to resolve this problem.

    Thank you.

    Mr. OBERSTAR. Would the gentleman yield?

    Mr. CLINGER. I'd be happy to yield.

    Mr. OBERSTAR. It is great to have you back in these premises again.

    Mr. CLINGER. Thank you very much.

    Mr. DUNCAN. Thank you, Mr. Clinger.

    Mr. Kim, do you have a statement?

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    Mr. KIM. I have no statement.

    Mr. DUNCAN. Thank you very much.

    We will begin the testimony. I want to once again welcome the witnesses and thank you for coming from various parts of the country.

    We have with us Mr. Charles D. Perriguey, Jr., who is president of the Airborne Law Enforcement Association; Mr. Jerry E. Hatfield, who is the chief trooper pilot of the Alabama Department of Public Safety; Mr. Larry Carpenter, who is the Sheriff of Ventura County Sheriff Department; Mr. Dan Breda, who is the sheriff of Chelan County, Washington, and Chair of the Aviation Committee of the National Sheriffs' Association; Jim Branham, who is the chief deputy director of the California Department of Forestry and Fire Protection, on behalf of the National Association of State Foresters; Mr. David L. Brooks, who is captain of the Costa Mesa, California, Police Department, on behalf of AirBorne Law Enforcement Services; and we have Ms. Deborah Rich, who is the division director of EMS for Travis County, Texas. It is an honor for us to have each of you here, and we will begin the testimony. I have read these witnesses in the order which I was given. I don't know whether that is an order that you all have come up with, but I will assume that it is, and so we'll go ahead and call on Mr. Perriguey first as president of the Airborne Law Enforcement Association.

    You may begin your testimony.

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    Mr. PERRIGUEY. Thank you, Mr. Chairman.

    Bear with me. This is my first crack at doing this type of thing.

    To you and the members of the committee, thank you very much. On behalf of the Airborne Law Enforcement Association's board of directors and our general membership, we appreciate your holding these hearings and permitting me to speak.

    I would request that my comments as submitted prior to the hearings be entered into the record.

    We have a problem in this country—one I would consider a very big problem. That problem is crime. Crime in the United States is, if not the biggest, one of the biggest problems we face today. Unfortunately, a perhaps well-meaning writer to H.R. 2440 has resulted in a very negative and counter-productive effect. Public law 103–411 and the associated FAA interpretations have directly and negatively impacted U.S. law enforcement's ability to operate, including its ability to operate equipment acquired under section 1208 of the National Defense Authorization Act for 1991, commonly referred to as ''the 1208 program.''

    Aviation has evolved to play a key role in our society and is necessary to our well-being and prosperity. Just as private citizens and commercial endeavors enjoy the benefits of aviation, government aviation operations are now critical to sustaining our way of life. Aviation in government service is simply a tool. Aviation at every level of government is another piece in government's inventory of things necessary to deliver a minimum level of service in an efficient and lawful way.
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    With exceptions, government aviation is equivalent to corporate aviation—a self-contained entity structured to meet the specific needs of the operator when no other means are available or cost-effective.

    You will find government and corporate aviation operations policy to contain the same objectives: the safe operation of aircraft in an effort to achieve organizational goals.

    In the case of law enforcement, those goals include: the reduction of crime, the apprehension of criminal suspects, search and rescue, and the recovery of contraband. In the case of commercial operators, the goals are profit motivated.

    Regarding public law 103–411 and the associated FAA interpretations, they include unfunded mandates, they provide no ability to bring military surplus aircraft into compliance with FAA airworthiness certificate requirements, they provide no ability to adequately operate military surplus aircraft, they provide no ability to recover some or all of the costs associated with otherwise unavailable services, they provide no ability to reasonably conduct reimbursable joint operations among various governmental entities, and there is no differentiation between profit-based and cost-based operations.

    In public law 103–411 and the FAA interpretations, the perception of encroachment is a continual weave within text. It attaches to anything suggesting compensation or funding. The FAA has consistently applied debatable concepts citing historical interpretations of the term ''for compensation or hire.''
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    When it is argued monies must remain within a common treasury, Federal operations are not impacted, but State and local operations are directly and very negatively impacted. They cannot recover Federal reimbursements and cannot join resources to fund a one- or two-aircraft operation.

    Regarding 1208 program aircraft, when transferred with proper documentation, maintained to an acceptable protocol, and operated by properly certificated and experienced pilots, 1208 program aircraft are every bit as airworthy and every bit as safe as any aircraft carrying an FAA airworthiness certificate.

    Regarding the issue of aviation safety, please be advised that government aircraft operations remain one of the safest forms of transportation available today. No information exists which would suggest otherwise. Law enforcement aviation operations include some of the most demanding flying found today. That flying is done to exacting standards imposed by the parent agency. That flying is done within the national airspace system and is in complete compliance with all applicable FARs.

    In other words, we are all basically operating under the same rules of the road now, just as we always have been. The fact that State and local government aircraft operations are protected by liability insurance issued by carriers who, in cooperation with local risk managers, certify the viability of such operations should add further to the understanding that government aircraft operations are as safe as any operation you'd care to hold up for comparison.

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    In the spirit of ''bring me your solutions, not your problems,'' it is recommended that the Federal Legislature create an atmosphere wherein airborne law enforcement operations are universally enabled in any aircraft which is adequately maintained by appropriately certificated maintenance personnel and piloted by appropriately certificated sworn peace officers.

    The release of military surplus aircraft to civil law enforcement agencies is done with the Federal Government's complete support, both technical and administrative. An FAA airworthiness certificate or a usable substitute is a part of each military surplus aircraft upon its release to a civil government operator.

    Aircraft and equipment manufacturers are encouraged to support the release of military surplus aircraft and equipment to civil law enforcement agencies, and airborne law enforcement operations are facilitated within the national airspace system.

    In conclusion, I am not asking for a complete return to the requirements existent prior to P.L. 103–411. Airborne law enforcement personnel are working hard to maintain the safest flight environment possible, and in that spirit are anxious to fully participate in any effort which has as its goal a safer national airspace system.

    I'm asking that the negative aspects of the public law and the associated FAA interpretations be removed and that the Federal Legislature involve itself to the extent necessary to facilitate U.S. law enforcement aviation operations within the national airspace system.

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    Again, thank you for conducting these hearings and for your consideration of these very important issues. I remain available to respond to any questions you may have of me or the ALEA.

    Thank you.

    Mr. DUNCAN. Thank you very much, Mr. Perriguey.

    Next we have Mr. Jerry Hatfield, who is the chief trooper pilot for the Alabama Department of Public Safety.

    Mr. HATFIELD. Mr. Chairman and committee members, good morning. On behalf of Fob James, the governor of the State of Alabama, and Gene Mitchell, the director of the Alabama Department of Public Safety, we want to thank you for conducting these hearings and allowing me to address your committee.

    The Alabama Department of Public Safety is the State police agency for the State of Alabama. We'll celebrate our 60th anniversary this year. Our department is comprised of 650 arresting officers, and we provide a wide range of law enforcement services to the people of Alabama.

    One of the services provided is that of aviation law enforcement support. Our State trooper aircraft are available to city, county, State and Federal law enforcement agencies in the State of Alabama on an as-needed basis. The cost of this support is figured into the aviation unit operating budget, and law enforcement agencies are not charged for those services.
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    Our trooper aviation unit began service in 1973 and was recognized by Bell Helicopter Textron in 1994 as a recipient of their Excellence Award for performing over 40,000 accident-free flying hours in support of law enforcement.

    We are proud of our law enforcement aviation program in Alabama and strive for its continued success. However, we are concerned with the negative impact that public law 103–411, as interpreted by the FAA, has not only on our program but also those law enforcement aviation programs throughout the United States.

    Our State trooper aircraft program began its existence using surplus aircraft and helicopters made available through the Civil Defense in the early 1970s. These aircraft were used extensively throughout the 1970s and were later replaced with a fleet of modern twin-engine airplanes and turbine helicopters. Our aircraft are used as a force multiplier for those law enforcement officers on the ground.

    The types of missions that the Alabama Department of Public Safety aviation performs are: tactical response; we provide aviation transport for the governor; prisoner transport; marijuana eradication; airborne traffic enforcement; drug smuggling interdiction; photograph reconnaissance; surveillance; search and rescue; transportation of investigators, criminal witnesses, and hostage negotiators. We also provide general aviation law enforcement.

    Aviation support is essential to the functions of the Department of Public Safety. Our objective is to serve and protect the public. We are a public service agency. Our aircraft are not for hire. They are non-profit. They are used to apprehend criminals, locate missing and lost people, and recover stolen property.
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    Alabama State Trooper aircraft are pure law enforcement. Our pilots and air crew members are all sworn peace officers. We do not compete with the civil aviation community in Alabama to provide aviation support to law enforcement. My department does not utilize civilian pilots.

    The demands that are placed on our department for services have increased and have taxed our resources. For that reason, we have decided to increase the size of our aviation unit. We are in the process of acquiring additional government aircraft through the 1208 program and feel that public law 103–411 negatively impacts the effectiveness of this program because of lack of an airworthiness certificate issued to U.S. Government aircraft.

    I submit the following to you for your consideration.

    It is the opinion of my department and also that of the U.S. Government that these aircraft are airworthy. The cost of bringing them into compliance with FAA regulations to obtain an airworthiness certificate will be cost prohibitive, if not impossible, draining our departmental funds, limiting our law enforcement operations in the State, and preventing the acquisition of needed aviation assets.

    The Department of Public Safety follows and will continue to follow FAR part 91 procedures. The aircraft will be operated by properly certificated air crew and maintained in accordance with FAA maintenance standards by licensed aircraft mechanics and inspectors.

    Aviation safety is paramount to our aviation program. We maintain a close working relationship with our general aviation district officers at FAA in Birmingham and welcome business by their inspectors. FAA employees participate in our ride-along program and are very familiar with the conduct of our air operations.
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    The State of Alabama requests that this committee revisit the subject of public aircraft and provide relief to civil law enforcement from the negative aspects of public law 103–411. We in civil law enforcement welcome the opportunity to participate in the law-making process and wish to assist in the development of meaningful legislation to enhance the effectiveness of law enforcement.

    That concludes my remarks. I want to thank you again for your time and consideration.

    Mr. DUNCAN. Thank you very much, Trooper Hatfield.

    Next we have Sheriff Larry Carpenter of the Ventura County Sheriff Department.

    Mr. CARPENTER. Thank you, Mr. Chairman.

    My name is Larry Carpenter. I'm the elected sheriff of Ventura County in southern California, located just north of Los Angeles County.

    Our county covers 1,800 square miles, with a population of 750,000 people. Much of the county is sparsely populated. In fact, the northern half of the county is rugged mountainous terrain located within the Los Padres National Forest.

    The sheriff's air unit has been operational since 1971, and since 1973 we have used military surplus aircraft.
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    My comments today are not only in the interest of the residents of Ventura County, but I have also been authorized and endorsed to speak on behalf of the California State Sheriffs' Association, representing 58 elected sheriffs State-wide, and Sheriff Jim Pope of Shasta County, the current president, sends his regards; and also on behalf of the Western States Sheriffs' Association, representing 210 elected member sheriffs in the 11 western States representing 50 million constituents of all of ours.

    The legislation under review today, public law 103–411, has detrimentally impacted the operations of my public safety aviation unit. I have come here to ask that this subcommittee consider the real life impacts on the Ventura County Sheriffs' air unit, and by extension all law enforcement air units throughout the country using military surplus craft.

    Close examination seems to reveal that the intent of this legislation is to regulate public aviation units out of concern for safety. This concern has no basis in fact. An assumption was made that commercial operators have a record for safety exceeding that of public operators. There is no data which supports this. In fact, all data that I am aware of indicates the opposite.

    This measure, as interpreted by the FAA and articulated in advisory circular 00–11, has the impact of drastically reducing the effectiveness of the public aircraft with no offsetting improvement in aviation safety. The only provision of public law 103–411 which addresses a concern for safety provides for investigation of public aircraft incidents by the NTSB. I, and I believe all of us here, support that part of this measure.
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    Under this law the aviation unit in Ventura County will no longer be able to provide certain airborne services for other governmental entities or for other public safety agencies. The cause of this decrease in service is the determination of the FAA, based upon 103–411, that simple cost-sharing now qualifies as a commercial operation requiring conformance to FAR part 135.

    This is a prohibitive requirement, and in some cases an impossibility due to the FAA position on surplus military aircraft. We will be forced to curtail, if not eliminate, many critical activities. Because the individual pilot bears a responsibility and faces the sanctions of advisory circular 00–11, an untenable situation is created.

    Even during emergency situations and major disasters, the pilots may question the technical legality of a flight order by an incident commander or a command center, even though safety is not even the issue. The responsibility rests with the pilot to determine whether nor not each person on board is essential to the task at hand, even though he has limited knowledge of the job requirement and his flight destination. In the delivery of emergency services, this is the definition of untenable.

    The FAA interpretation of this law states that a flight for hire and compensation of any kind is prohibited. Any flight by our aviation unit which allowed cost recovery now must be handled by a commercial operator or not done at all.

    Some evidence would suggest that the true motive of this measure is to protect commercial enterprises to the detriment of public safety.
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    Let's examine for a moment the capabilities of public aircraft operations.

    In Ventura County and in many others, reconditioned military aircraft have been specifically designed and crews specially trained to conduct a variety of sensitive, technical, and sometimes hazardous missions. This measure prohibits public safety entities from using proven effective and safe helicopters to accomplish this mission. It prohibits the sharing of these resources and the associated costs amongst and between levels of government.

    The public aircraft operators of this Nation provide a safe, efficient, professional, and life-saving service. I strongly believe that public law 103–411 is a measure that does not improve aviation safety but, instead, takes away resources from local governments that can be used to provide safe and reliable services to the local communities.

    If, indeed, it is the intent of this legislative body to make these air operations safer, let's all work together to achieve that worthy goal. Public law 103–411 does not accomplish this.

    I urge that public law 103–411 be repealed, and at the same time require the FAA to work with representatives of the police aviation community and other public safety aircraft operators to write a new part for the Federal aviation regulations that would deal specifically with police public safety aviation operations.

    The Federal Government's surplus program has been a model of cooperation and efficiency for many years. This particular legislation has the effect of giving with the right hand and taking away with the left.
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    My message today is a plea not to undo the good that we have accomplished together.

    With your permission, I would like to close by sharing a brief videotape from the ''Today Show'' aired during last winter's torrential rains and flooding in Ventura County and other southern California counties. It's about a 3-minute tape, Mr. Chairman.

    Mr. DUNCAN. Go ahead. That's fine.

    Mr. CARPENTER. Thank you.

    While that's being set up, I would just mention that this tape stresses the teamwork involved between ground crew, air crew, and pilot.

    Also, I gave pause last night as we passed by the White House and saw Marine One sitting on the lawn, the thought popped into my mind that should that become a surplus aircraft tomorrow, its airworthiness might become suspect.

    [Videotape presentation.]

    Mr. CARPENTER. Thank you, Mr. Chairman.

    Mr. DUNCAN. Thank you very much, Sheriff Carpenter.

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    Next we have Sheriff Dan Breda, the Sheriff of Chelan County, Washington, who is the Chair of the Aviation Committee of the National Sheriffs' Association. Sheriff Breda?

    Mr. BREDA. Mr. Chairman and members of the subcommittee, I thank you for the opportunity to testify today.

    I would ask that my written comments be placed in the record.

    Mr. DUNCAN. They will be. Thank you.

    Mr. BREDA. I come to you today as a second term elected sheriff of a large county, but sparsely populated with 60,000 people over 3,000 square miles. Of my county, 87 percent is in public ownership either through the National Forest System or through National Parks System, Bureau of Land Management, or State Department of Natural Resources.

    The county runs from the crest of the Cascade Mountains to the Columbia River, and encompasses a 9,000 foot elevation change throughout the county.

    About two-thirds of the county is roadless, and so we have a substantial draw for back-country enthusiasts, and therefore we have approximately 50 to 80 search and rescue missions that have to be accomplished every year.

    Use of aircraft has been very necessary in my county. For the past 21 years we have operated a successful aviation operation using surplus or excess military aviation equipment without incident and without accident for 21 years.
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    I am here today as Chair of National Sheriffs' Aviation Committee mainly because I am attempting to be able to continue to do my job as sheriff and be responsible for the public safety of the citizens of my county.

    I guess you could say I became the poster child for public aviation when the FAA targeted me as the first public operator of aircraft for enforcement action under the FAA interpretations prior to the implementation of public law 103–411.

    In 1993 in the summer and also into the fall, we made a couple of rescues utilizing an inter-governmental cooperative agreement that made available to us a medium lift Huey helicopter, surplus military, that belonged to the State Department of Natural Resources, and which was on loan to the local fire district, which was in turn flown by my pilot, my chief of special operations.

    We made two rescues that were later targeted as for enforcement action by the FAA. Because the aircraft was on loan from State DNR, the fire district had to pay them for the use of the aircraft and we paid the fire district for the use of the aircraft to rescue these people.

    One of those was a 15-year-old boy who had been rock climbing. A slab of rock fell off and nearly peeled off his arm and flayed open his leg. He was in the process of bleeding to death. The Huey came in, in close enough time to get him to the hospital. It saved his life.

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    On another rescue we had a woman physician that had fallen and broken her leg. We flew in with the Huey in the only landing spot where we could get one skid on the ground. We got her on board and greatly enhanced her recovery as a result of the rapid access to medical service.

    Those two flights were paid for out of my budget from the Chelan County Sheriff's Office to the fire district, and subsequently to the State Department of Natural Resources, and that put us in line for FAA enforcement action because of the compensation definition that the FAA was using. That subsequently became codified in 103–411.

    There are several things that I want to point out to you here today.

    I am here representing the sheriffs of the Nation as Chair of the Aviation Committee of the National Sheriffs' Association, and we have a real problem with the disproportionate impact that public law 103–411 has placed upon small government agencies.

    You'll notice the irony that large government agencies such as those in the Federal Government can share resources back and forth without any problem because they do not fall afoul of the common treasury requirement that the FAA has imposed; on the other hand, I cannot assist and recover my costs with my neighboring sheriff across the river because we do not operate out of the common treasury, and so there is a disproportionate impact on small agencies.

    Another point that I want to raise is that we had a situation in Chelan County where last year we exploded into flames. At the end of 5 years of drought, Chelan County had a series of incidents in other parts of the country where most of our firefighting resources were stripped out. We did have the medium lift Huey helicopter on the pad at Fire District One in Chelan County, and when we had a lightning storm come through on the 24th of July we had numerous fire starts, but the Forest Service could not call for the firefighting helicopter.
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    As a result of the enforcement action the FAA threatened, we acquiesced. I'm a small agency. I don't have the fiscal or legal resources to fight a Federal Government agency. So I put the FAA on notice in April 1994 that their interpretation was going to result in death and the destruction of major areas of resources.

    I hate to say that I was a prophet, but I was. Again in July, Chelan County exploded into flames, and we lost 300 square miles of pristine forest, 38 homes. I have to say the fire fighters did an enormously successful job in saving another 700 homes, but we also lost one life of a fire fighter due to a heart attack.

    Now public law 103–411 again I say will result in loss of life and will result in the destruction of vast areas of this country because it places undue restrictions on public agencies from meeting their public safety mission.

    Where is it written that we cannot share aviation resources? I have to answer it is written in 103–411.

    Where is it written that I can't go to the assistance of the local fire district or the Forest Service and recover the cost of that operation, which is required of me by the State auditor? It is written in 103–411.

    Where is it written that the private operators have some sort of inherent right to do public sector public safety work? That's what I'm elected to do, and that's what I would like to ask that you allow the sheriffs of this country to continue to do by repealing 103–411.
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    Some of the premise behind that law was, as mentioned earlier, the tragic crash that took the life of the South Dakota governor. I have the National Transportation Safety Board report on the investigation of that accident, and that accident was not preventable by any means of current technology at the time. The aircraft was maintained in compliance with part 135 standards.

    So we have a hue and cry that has arisen across the country, primarily from private sector operators who want to come into and do public sector public safety work—law enforcement, fire fighting, and so on.

    That's one of the problems that the FAA has—it is a hopelessly conflicted agency. It has, prior to 103–411, a dual mission to promote safety through regulation, and also to promote civil aviation. I'm sure you can see the inherent conflict in that.

    But now, with 103–411, there is a third mission that the FAA is given, and that is to regulate public aircraft. You can see the inherent temptation potential to the FAA to accomplish at least two missions: one, to promote civil aviation, and all they have to do is to over-regulate public aviation.

    I bring that conflict to your attention for your consideration and request that you join with me and with the sheriffs of the country in understanding that public law 103–411 is a solution to a problem that never did exist and that we request respectfully that public law 103–411 be repealed.
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    The National Sheriffs' Association, in its June meeting in San Antonio, Texas, passed a resolution in opposition to 103–411 and noted in that resolution that it is in direct violation of public law 104–4, which was passed by this Congress repealing and outlawing unfunded mandates.

    If I were to go to the local private operator in my county to fly the same number of flight hours with the same type of aircraft—essentially a light turbine helicopter—it would cost me four times what it costs me to operate my surplus 1208 aircraft.

    The sheriffs of this country are really in favor of the 1208 program because it allows us to reuse tax dollars that are already spend. We welcome the 1208 program and would resist any restrictions on the release of those aircraft to public safety agencies across this country.

    We thank you for that program. That has been a great boon to us. We wish for it to be continued.

    I thank you very much.

    Mr. DUNCAN. Thank you, Sheriff.

    Next we have Jim Branham, who is the chief deputy director of the California Department of Forestry and Fire Protection on behalf of the National Association of State Foresters.
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    Mr. BRANHAM. Thank you Mr. Chairman and Members. Once again, on behalf of the State of California and the National Association of State Foresters, particularly those 20 other States that operate aerial firefighting equipment, I want to thank you for this opportunity to comment on a situation that is of great concern to all of us. I'll do my best not to be redundant. I think my colleagues here have done a very good job of discussing many of the problems that we face.

    I'd like to talk a little bit about the situation in California.

    We operate a large air fleet, by most standards. We have 17 fixed-wing S–2 air tankers, we have 10 Super-Huey helicopters, and about 12 air attack observation aircraft, all of which were secured through the Federal excess property program. I think most of the other State agencies also have received their equipment through that program.

    It is a very cost-effective program for us, obviously. There is no initial cost of securing the aircraft. The cost to us is the refurbishment and conversion to make them firefighting equipment.

    The cost-effectiveness is certainly an important part of it, but from our standpoint it is equally important that we have resources—I think as Sheriff Breda just discussed—resources that are at our command and control to be able to deal with the emergencies that we face. The program we have put together in California has worked very well in that regard.

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    The enactment of public law 103–411—I would agree with some of the Members' opening comments. I think when we saw the final product that Congress produced we weren't quite as concerned as we had been with earlier versions, and even some of the actions that the FAA had taken previous to the legislation. However, the following advisory circular by FAA has caused serious problems for us in our operations and, candidly, we can identify very little benefit to the public as a result of this law.

    I'd like to talk about two or three major issues that we face in California. They've been addressed here, but I'd like to just reiterate.

    First is the definition of ''commercial purposes'' that the FAA is using in interpreting this law. It creates the reimbursement problems that others have discussed that really are very problematic for us. We don't operate our aircraft for profit. We operate on a basis—and, in fact, State law requires us to recover the cost of providing services to any other agency of government, be it Federal or local.

    We believe that interpreting the activity that we undertake on emergency instances as somehow being commercial purposes is simply unfounded. I might note that the comments that have been made by other Federal agencies as to this issue have supported our position that they, likewise, believe it is an unreasonable interpretation.

    The interpretation forces us to be in a position where, when we receive a request for aircraft—for instance, from the Forest Service, which is a fairly frequent, almost daily occurrence in California, we must have them certify to us that, in fact, there is an imminent threat to life or property and that no service by a private sector operator was reasonable available to meet the threat.
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    This results in delayed response times, a process that is cumbersome. I guess our biggest concern is that we have people making crucial life and death situations about resources at the time of an emergency and we feel very vulnerable to being second-guessed down the road.

    Once complaints are filed, if they are filed—and we have had at least one in California—someone after the fact will make a determination, not sitting there in that command center making the decision that, in fact, it didn't meet the criteria. We feel vulnerable that that is clearly out there. It has not yet happened but, as I say, we are concerned.

    There are other areas where we have not received clarification from FAA in terms of whether certain types of activities are permissible, even such as move up and cover, which is where we move firefighters from one part of the State or move equipment to another, as we have moved resources out, so we can continue to have an initial attack capability in those areas. We're not sure exactly where the FAA lands on those types of activities.

    Our system is built on the concept that we use the nearest available resource, whether that be a Forest Service, a local, or a State resource. We're going to try to use the closest available resource to meet that need. It is an aggressive initial attack. California has a very extreme fire environment, as many of you know. It has worked very well for us.

    Fortunately for us, our fire season has not been as severe as it has been in past years this year, because we're not sure it would have worked quite as well, given the current situation.
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    Another major issue that has been discussed is safety. Again, the assumption seemed to be that if you are not FAA-certified you're not as safe as you could be. We're very proud of our safety record in California. Not only in our aerial activities, but in all of our activities safety is our number one priority.

    Our helicopter program is a good example, because it is the one most affected by this law and by the interpretations. Our accident rate in our helicopter program, since we have received the excess property, has been outstanding. Compared to the Forest Service, for instance, which uses private ships, they have a five time greater accident rate than we do with ours. We think the record speaks pretty clearly for itself.

    Our helicopters, the maintenance, pilot training, and so on, meet or exceed all Federal standards and all military standards. We think the results again are a direct product of that.

    Lastly, I'd like to talk briefly about the use of private sector aircraft because there is probably a bit of a misconception out there.

    We have one of those things that we hear a lot of talk about these days, and that's a private/public partnership. We think it has worked very well for us.

    Last year's budget for the department for our air program was about $10 million. Of that $10 million, $8 million was spent in the private sector, from maintenance of aircraft, for what we call ''call when needed resources,'' which is when we use private sector resources to supplement our own, and for contracts to operate. Our air tankers are operated and maintained by the private sector.
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    We don't believe that there is a real argument here that somehow we are out there on a course to try to run the private sector out of business or to try to overly compete with them. We think we need the cadre we have to meet the mission we have, and we think that, as I said, the continued operation with the private sector is clearly the way to go. It is the best system and the most cost-effective one for the taxpaying public. It has been made a little bit more complicated by this whole situation.

    In summary, I would just like to say once again that we'd like to see the problem addressed. All of us would like to, as Mr. Clinger had mentioned, see this issue go away so we can get back to the business of doing what we are charged with doing.

    I might add, for Mrs. Seastrand's benefit, that she had the dubious distinction of hosting our largest fire last year in San Luis Obispo County, and it was, I think, a good example that we used substantial Federal, local, and private resources, as well as our own on that fire. While the damage was severe, it could have been much worse. The conditions were incredible.

    Again, we think the system has worked well. We think our safety record speaks for itself. We think the taxpayers benefit, and we urge this subcommittee to take whatever action you deem appropriate to let us continue.

    Thank you.

    Mr. DUNCAN. Thank you very much, Mr. Branham.
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    Next we have Captain David Brooks, who is with the Costa Mesa California Police Department, on behalf of the AirBorne Law Enforcement Services.

    Captain BROOKS. Thank you very much, Mr. Chairman and other members of the committee.

    I am also here today representing the International Chiefs of Police Association. Colonel Shinnamon, the chairman of the Subcommittee on Aviation for that body, has submitted written testimony, as well.

    I wanted to explain a little bit of our helicopter operation, give some examples of how ABLE helicopters are used on a daily basis, and explain how this public law affects public safety services in Orange County.

    In September 1993, three municipal governments, along with the county sheriff, combined their air bureaus into one operating unit. The purpose of this is to provide police patrol and related services to the entire county. At the time, they serviced only their own jurisdictions. Now we have 14 cities who are members of ABLE.

    ABLE makes affordable, safe, and efficient public safety services available throughout the county from 8:00 a.m. to 4:00 a.m. daily. Our flight maintenance operations are in compliance with part 91 of the FARs. They have been since they started in 1970.

    My reason for offering several examples is so that you'll see exactly how our police helicopters are used in Orange County on a daily basis.
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    The first one is Westminster Police Department had two carloads of gang members shooting at each other. This is a running gun battle between cars. One of the cars was spotted and led police officers on a 30-minute pursuit. During that particular pursuit the car did stop and let off a passenger, who was armed, and a lone police officer went in foot pursuit after that particular suspect.

    The helicopter stayed with them, assisted with the fleer, and helped the ground officer take him into custody.

    From that point they joined the pursuit, and eventually the second suspect was taken into custody.

    In another incident—again these are from August 1995—four males performed an armed robbery on one female and beat two other females in the process. The vehicle was spotted and a ground officer performed a felony car stop. A regional helicopter observed two of the suspects run from the car into a residential neighborhood. They then directed the officers to the location of the suspects.

    A third instance that I'd like to offer is that in August of this year we also had a fire in the south of Orange County. Our regional helicopters carry a ''bambi bucket.'' It is just a 100-gallon firefighting bucket. They were able to land, get water from a nearby lake, and then call for the Orange County Fire Authority helicopter to come and assist them, and they were able to contain this burn to three to five acres.

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    It took 45 minutes for the first fire truck to arrive in this location. By the time they got there, the fire was out.

    There are volumes of similar incidents that I could relate, but my purpose is simple: public safety helicopters are an integral part of delivering safety service to the residents of our cities and county.

    The passage of Public Law 103–411 threatens the existence of ABLE. Because we use a mixed treasury and we combine our resources for this, and by the FAA's interpretation of commercial purposes, this makes our operation a part 135 operation. That section is titled, ''Air Taxi Operators in Commercial Operations.''

    ABLE does aerial work. Our work is a result of the observations of police officers and in response to the dispatch calls that they received. We are not in the business of transporting persons, property, or passengers from point A to point B. Our work is done as aerial work.

    We believe that the reimbursement of operating costs through a multi-jurisdictional agreement is an efficient manner of delivering public safety to the citizens of Orange County.

    Section 3.A.2.2 of the public law has an exception in it. ''If the unit of government on whose behalf the operation is conducted certifies to the administrator of the Federal Aviation Administration that the operation was necessary to respond to a significant and imminent threat to life or property, and that no service by a private operator was reasonably available to meet the threat—'' this particular section does not apply in our instance. It has nothing to do with safety. It has to do with who is going to respond to the public emergencies that are there.
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    It puts us in a situation where, after our flights are made, we would have to go ahead and, under part 135 where it asks for this exception, have these ruled on at some later time by the FAA administrator as to whether or not these particular flights were legal flights.

    It appears to me that the law was written with the idea that our helicopters were somehow in a hangar some place waiting for a call to come in, and once that call came in then a determination would be made as to whether it was an emergency or whether or not it was a regular police response, and then decide whether or not there was a particular private operator available to handle the call, and at this time a response could be made.

    In our case, our police shifts, as I demonstrated with the few illustrations there, are on active patrol. They are on patrol. Their value is to simply be the first on scene to take the proper police action.

    I don't believe that it was the intention of Congress to limit how local jurisdictions respond to police emergencies.

    The expense of becoming a part 135 operator is excessive and does not make us any safer in our activities at all. The passage of public law 103–411 brought changes that negatively affect the delivery of public safety services. I request that this law be changed so that we may go ahead and continue providing services to our taxpayers and to the residents of our cities and counties.

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    Thank you.

    Mr. DUNCAN. Thank you very much, Captain Brooks.

    The final witness in this panel will be Ms. Deborah Rich, who is the EMS director for Travis County, Texas.

    Ms. Rich, thank you for being here. You may proceed.

    Ms. RICH. Thank you.

    [Audio tape presentation.]

    Ms. RICH. Mr. Chairman and members of the committee, what you just heard was an actual 911 dispatch. On July 31, 1988, Travis County's EMS helicopter responded to the call that you just heard. Thanks to the helicopter's swift response, this patient, a Travis County taxpayer and resident, was saved after being found unconscious in her swimming pool. This is just one example of the service the STAR Flight program provides as a taxpayer-funded public aircraft. By the way, STAR stands for Shock Trauma Air Rescue.

    We fly aerial EMS and fire suppression missions and support our local law enforcement agencies in several capacities, including search and rescue. We have provided these services for more than 10 years without sustaining a single mishap or injuring a single person.

    I ask you today to repeal public law 103–411 or to amend it to allow public service operators to recoup expenses for the following reasons.
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    Forcing Travis County to operate under FAR part 135 severely restricts our day-to-day operations in a manner contrary to the public interest. These regulations were initially written in 1958 for fixed-wing aircraft in the business of transporting the traveling public from one airport to another for commercial purposes.

    STAR flight, on the other hand, operates from a downtown trauma center. We respond to emergencies in the outer reaches of our county. We land in unprepared landing zones, often a public street or someone's back yard. We rapidly transport critically ill or critically injured patients back to the trauma center, without ever stopping to determine whether the patient is able to pay.

    Imagine how frustrating it would be to you or your loved one if you were critically injured or stranded atop your automobile in a raging stream, only to learn that the county's emergency response helicopter has been grounded because an insignificant light bulb is burned out and does not happen to be on the aircraft's minimum equipment list.

    This nightmare is a reality when public service emergency helicopters are forced to operate under FAR part 135.

    Surely, this is not what was envisioned when these regulations were originally drafted nearly four decades ago. Under 103–411 we could continue operating STAR flight as a public service aircraft if we ended our current practice of asking those who use the service to partially reimburse the county's general fund.

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    Unfortunately, this places an undue economic burden on the rest of the taxpayers and constitutes an unfunded Federal mandate. It could ultimately result in the county having to discontinue the service altogether, and there are no commercial operators who offer a first response helicopter which can provide the same emergency services we currently provide to our residents. In fact, the very regulations that will force Travis County to discontinue providing these emergency services will not allow a commercial operator to provide them either. And even if they could, the cost to the taxpayers would be greater because a true commercial operator must maintain a profit in order to survive.

    By the way, Mr. Chairman and committee members, on July 31, 1988, fortunately public law 103–411 had not been enacted, because the near-drowning patient that was saved by STAR flight that day was a friend of ours and a friend of many of yours. It was the Honorable Former Congresswoman Barbara Jordan.

    On behalf of the citizens of Travis County, Texas, I thank you for the opportunity to address this hearing, and I am honored to be sitting at this table with this group of emergency service providers whose primary interest is safety, life, property, and reducing crime.

    Thank you.

    Mr. DUNCAN. Thank you very much, Ms. Rich.

    Let me say, as I mentioned in my opening statement, we had what I thought was a surprising amount of interest in this because people from all over the country wanted to come testify, and we ended up with the largest panel that I think we've had before this subcommittee, but I must say a very impressive panel, very impressive testimony.
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    I spent 7 1/2 years as a criminal court judge prior to coming to Congress, trying the felony criminal cases in Knoxville and Knox County, Tennessee. I worked very closely with the local law enforcement people, the city police department, and local sheriffs' department, and so have many friends among local law enforcement, and so I appreciate the work that all of you do and respect it very much.

    I'm going to save my questions for the end of the questioning period and go first, if he's ready, to Mr. Oberstar for his questions.

    Mr. OBERSTAR. Thank you, Mr. Chairman.

    Mr. Clinger and I worked very diligently in the last Congress and previously to address these issues or the issues raised by the Pressler Amendment and by some of the problems created even prior to that amendment, and I think the mitigating language offered by Mr. Clinger eased some of the problems. And also the language that we adjusted that was offered by then Speaker Foley trying to address problems in the State of Washington, which have been addressed here in the hearing, also attempted to provide more leeway.

    We were dealing with a situation created in conference on the National Transportation Safety Board reauthorization bill that did not admit—at that point of hearings we were in conference trying to resolve a bill. A non-germane, in this body, amendment had been added in the Senate. We had to deal with that in conference, and we tried to, by surveying the many law enforcement agencies and public use agencies of State and local government, to get a consensus on how to address the problem.
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    Testimony here presented cases of firefighting where there was a significant and imminent threat to life and property, and no service by a private sector operator was reasonably available to meet the threat, If the circumstance had arisen after enactment of P.L. 103–411, the constraints we were talking about would not have applied. We'll have FAA in at the next hearing that the chairman has scheduled. We'll press this point with them, Mr. Chairman.

    That is, as I understand—and I have read the regulations—a local government agency is not required to go through a process before responding to an emergency, but you respond to the emergency and, with a phone call, say ''This is what happened. We used our aircraft.''

    I think your concern is if Travis County responds to a problem in Travis County with its own aircraft, it is within the ambit of the law, but if you respond to a neighboring county's call for emergency, then you are walking on questionable ground and your concern is that if you do this for reimbursement, FAA is going to get on your case. Is that right?

    Ms. RICH. Right.

    Mr. OBERSTAR. And I understand the issues of having to meet FAA standards. That's what the Clinger limitation was all about—to mitigate costs of local and State governments in meeting the certification requirements of those 5,000 aircraft that are in civil use. Probably 90 percent of those were acquired from the military in one fashion or another, and in many cases they couldn't meet certification standards. The process is very complex. It is involved.
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    We should explore with FAA a way of doing this and, second, of assuring that the maintenance practices followed by local governments are either in keeping with manufacturers' standards or, as most government units do, conduct maintenance according to military manual.

    Perhaps a solution is to simply grandfather in the 5,000 civil aircraft so that, by statutory law, they, in fact, by this enactment, meet the certification standards. That would pose you a problem for future acquisition of aircraft, but at least we'd be able to set up a process by which some certification could be accomplished.

    Would such an approach resolve at least some of your problems? Mr. Perriguey?

    Mr. PERRIGUEY. Mr. Oberstar, I believe it would. I wholeheartedly embrace the concept of joining with the FAA to achieve some sort of certification for the 1208 program aircraft as they are released so that civil law enforcement agencies can operate these aircraft in whichever manner is most appropriate.

    Additionally, I might add that the Inter-agency Council on Aviation Policy, a Federal-level group of Federal Government aviation operators, has formed to develop compliance information for those people. One of the activities ICAP is involved in is involving maintenance protocols both for the UH–1H helicopter that is being released, and they are now involved in the protocols for the OH–58C. That is a cooperative effort including representatives from the FAA and aircraft maintenance experts from across the country, and aircraft manufacturing representatives.
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    I expect that the Airborne Law Enforcement Association will embrace the protocols developed by ICAP as a standard which should be seriously considered, if not adopted, by each of the using agencies.

    I think it is these kinds of cooperative efforts which we need to enhance and enable so that we can get on with the business of airborne law enforcement.

    Mr. OBERSTAR. Thank you very much. My time has expired. I'll have some further questions later.

    Mr. DUNCAN. Thank you very much, Mr. Oberstar.

    Mr. Kim.

    Mr. KIM. Thank you, Mr. Chairman. I do have a couple of questions and concerns listening to the panelists today.

    If I may sum up, it seems to me we've got a couple of concerns we addressed today. One is a safety issue. Mr. Branham mentioned that they usually maintain the highest possible safety standard, often above industry standards, that exceed FAA regulations. Then my question is why the cost of bringing them into compliance with FAA would be cost-prohibitive. That just kind of bothers me. If your aircraft is already above exceeds FAA regulations anyway, why would you be concerned that it costs so much money to comply with an FAA standard?
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    The second question I have is about the commercial use. I understand there is a lot of public sector concern that you government agencies actually go out and compete. Actually, you sort of make money for side jobs, so to speak, renting your aircraft or even a pilot to other agencies and reimburse back from them. A lot of private sector complains that they cannot compete with you. You don't pay any taxes. They do. And their costs are much higher than yours because they have to comply with all the FAA regulations.

    As I said, they have to pay taxes. They have to pay high liability insurance, which you don't. I think the private sector is asking us to maintain this level playing field. I think that's the concern they addressed. Why would you go out actually making money?

    Finally, someone mentioned that there is a day-to-day concern about this prompt response. Well, does that mean the private airplane company cannot give you prompt response to your need? If you don't have any private companies in your area, then you could be exempted. But I'm not sure why you keep mentioning this as actually saving the taxpayers' money by using your own aircraft or other public agencies' aircraft by eliminating or not using private aircraft. I'm not sure. They are the ones paying taxes to support your agency and us, and if you think that's better not to use them, then eventually the private helicopter business will be out of business. Then who is going to pay taxes to support us?

    I have a little concern about all of this—the concerns I mentioned. The safety issue—why do you want to be exempt from FAA safety standard? You keep telling us you already exceed that. Then what is your concern? Why would it cost so much money? You've got this military surplus airplane which you maintain. You've got excellent staff, excellent pilot. What is your concern to comply with an FAA certificate, getting a license?
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    A second concern I have is your commercial use. Why do you like to continue using your aircraft to get the money reimbursed back from other agencies? Isn't that actually using that as a commercial, picking up the mayor and governor to other places so that the private company cannot compete?

    Those things I have concern. I'm not saying you are right or wrong. I just simply have a little concern while listening to testimony. I also listen to other testimony. I read a little article about the concern by the private sector and I just express my little nickel's worth of concern, Mr. Chairman.

    Thank you.

    Mr. DUNCAN. Anyone who wishes to answer may.

    Mr. BREDA. I would make a comment in response, Congressman.

    First of all, in regard to the prohibitive cost of complying with part 135 regulations, number one, these aircraft that are being released are, for the most part, assembled on the same manufacturing assembly lines as those aircraft going to the civil aviation industry. The main difference is that on critical parts the FAA stamps an approval, an inspection on those aircraft going to the civil market, but do not inspect and approve the aircraft going to the military market. The military inspectors do that.

    So when we get an excess military aircraft out, and if we want to bring that into compliance with FAR part 135, we have to take a number of very expensive, perfectly functional, good working parts off of the aircraft, junk them, and replace them with parts that were assembled on the same assembly line that do have the FAA sticker. It is akin to an attitude that ''we are the people and the truth will die with us,'' on the part of the FAA, as opposed to the military.
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    There is a question that the FAA has raised about the military's ability to track the history of the parts, and that's being worked on. In fact, the ICAP process and the GSA is working very diligently to make sure that the parts coming out in support of the 1208 program are good quality, usable, airworthy parts.

    Second, you talked about an issue of a level playing field and why we can't use the private operator.

    Number one, I mentioned in my initial comments that we are re-utilizing tax dollars already spent when we use surplus aircraft.

    Second, it is not the mandate of the private sector operators to conduct search and rescue operations in my county. It is my mandate by State law. It is incumbent upon me, as the sheriff of the county, to conduct that search and rescue mission.

    I can do that with 1208 aircraft that I can operate at one-fourth the cost of what the private operator would charge me for virtually the same aircraft, and so what happens is we wind up with a huge unfunded mandate. It's obvious why that is. That private operator has a great capitalization cost which we do not have because the taxpayers have already paid for the aircraft for the military.

    They have a whole insurance requirement because, in most cases, those aircraft are financed, which is, again, a requirement that we don't have. We do carry liability insurance on our aircraft and we do meet stringent insurance company requirements for pilot qualifications as a result of their requirements on us, so we do protect the public in terms of liability.
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    You talk about level playing field, and I guess my fundamental point is that, again, where is it written that the private sector operators have some inherent right to do public sector public safety work that has historically and traditionally been public agency work? If you take and change the context slightly, you could pass legislation in this Congress to require me to give up my patrol cars and require me to go to the local taxi company to transport my deputies to critical criminal calls in my county. That's, in essence, what public law 103–411 does. It forces—when my neighboring sheriff wants to call me and wants to utilize my aircraft because he does not have an aircraft, it forces me then to say, ''Have you checked with a private sector operator at a much higher cost?''

    Mr. KIM. Mr. Chairman, can I have just one more minute? Thank you.

    I'm not convinced why public aircraft should not comply with an FAA safety regulations that govern civil aircraft. That's still puzzling me.

    Second, if you cannot find a private company out there in emergency basis, I can understand that, but you are actually using aircraft for renting or making some money. I don't think that's right. Certainly that should be classified as a non-public aircraft. You've been unfair competition to private sector. Those are my concerns.

    I'm not listening to testimony, I'm not convinced why you like to be unlimited usage and yet you want to be 100 percent reimbursed. You haven't convinced me why that's good for the public except it is cheaper. I'm not sure that is a good justification. Then you might as well let the government run everything. It is cheaper because they don't pay any taxes.
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    I just have a strong concern again about—some of the gentlemen mentioned that it is considered unfunded mandates to find a private sector operator. I don't see how that can be considered unfunded mandates. If you cannot find somebody private, then you just have to tell FAA there aren't any, or in emergency cases you can always call other agencies in emergency. I think FAA can understand that.

    I just am starting—I don't know much about this particular law. I'm going to do a little study on this thing. But I do have some concerns, Mr. Chairman.

    Mr. DUNCAN. Thank you very much, Mr. Kim. We'll come back to you in just a few minutes if necessary, but I want to go now to Mr. Bachus.

    Mr. BACHUS. Thank you, Mr. Chairman.

    Chief Trooper Pilot Hatfield, I welcome you. As an Alabama Congressman, I appreciate your testimony.

    Mr. HATFIELD. Thank you.

    Mr. BACHUS. I also got a call from Ron Hample, Captain with Tuscaloosa. He made a call telling me they have a surplus military aircraft which they really can't utilize because of some of the provisions and interpretations by FAA.

    You probably had the longest questions posed to you you've ever had, right? Five-minute questions that are asked and answered.
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    I'm going to focus on one or two things. First of all, in the testimony there is a lot of debate, not only by this panel, but by the next panel, which is Mr. Jensen and Ms. Rogers and Mr. Driscoll, sort of representing the private sector. The whole debate is: should you be allowed to do this kind of rescue mission or should you be allowed to do that? Or what exactly is the—what should these aircraft be used for and what shouldn't they be used for, and whether they ought to go in another county or not.

    I will say first of all that is a good philosophical argument. We make those arguments every day when we're dealing with Federal money. But as far as whether that aircraft ought to be used to go three counties over or whether you ought to be able to fly the governor to Texas from Alabama, I think those are decisions for the county commission and for the mayor of the city and the city council or the governor or the Department of Transportation back in the State, or the Department of Public Safety. How they use that airplane ought to be their decision.

    Then, if you are a private operator in that State, you ought to go down and complain to the governor and say, ''Those people are competing with us, and we can do the job cheaper.'' That's what elections are all about.

    In Shelby County, which is one of the counties I represent, we had a county sheriff that lost his job because the aircraft cost the county so much money and the whole thing about the county sheriff's race was how much the county was spending on that aircraft. You all are county sheriffs. You all have got to justify how much you spend on aircraft and whether you can go out and hire somebody private.
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    I will say to Mr. Jensen and Ms. Rogers, which are on the panel next to you all, that they raise very valid points. They say that they can do a lot of these things cheaper, but I don't think that's for Congress to say. I don't think we're supposed to sort out whether Costa Mesa County—if there such a thing—whether they can do it cheaper or whether they ought to hire private sector. That's not a concern of mine.

    I will say this: once the government gives you aircraft and you have it there, to me it is just absurd to tell you that the county next to you that doesn't have one can't use it. If the aircraft is safe, it's safe. If it is not safe, it is not.

    I have read the testimony of Sheriff Carpenter, the Chair. You raise the point that there is too narrow a definition of ''government function.'' I think the FAA really has sort of decided philosophically that they are going to tell a county or a sheriff what you ought to be doing with that aircraft. I don't think they ought to be doing that. I just don't think that's the FAA's role.

    It is certainly an inefficient thing, and this idea that you can't loan it to another county or city for the same purpose you are using it for and help with law enforcement or whatever there and not get reimbursed, that's just sort of an excuse to sort of keep you from utilizing that aircraft. It is sort of like if you can do it in your county you can loan it out. I don't really understand that.

    Having said all of that—and I think this part 135, I guess it is the cost recovery thing. That's crazy. I understand that they had a problem with you using these aircraft, and they use that to not allow you to get cost reimbursement, but that thing ought to go out the window, in my mind. I don't understand that.
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    Let me tell you where I am concerned. I've got two concerns.

    One is this 1208 program. I will say this: if the Federal Government decides to give you all surplus aircraft, they have obviously made a decision that this Congress—that it is proper for you to have those aircraft. If the military has been flying them for 10 years, it seems to me like we don't—as Mr. Breda said, this pulling out good equipment is sort of absurd. I think that can be addressed.

    Here is, I think, the crux of the whole argument. I'll have more time later. I would ask you about safety. That's my only concern. I see it just boils down to safety. Some of you have testified—Sheriff Branham, you testified you all comply with part 91 standards. I guess I'd just say: by complying, does the FAA regulate you? Or are you just saying you all do what would comply? Do you comply?

    Mr. BRANHAM. The FAA does not regulate us in those cases, but we do meet either FAA standards or military standards, whichever is more stringent.

    Mr. BACHUS. I'm going to say that there is a—I read Sheriff Carpenter's testimony right here, and you said this: the FAA should work with public aircraft operators in drafting a reasonable Federal aviation regulation that pertains to safety. That's what they ought to do. I would have to agree with you.

    I think that really it ought to be not by getting an airworthiness certificate. I think there is a cheaper solution that will promote safety just as well.
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    I will say that Mr. Jensen and Ms. Rogers have pointed out cases where they said unqualified pilots were flying planes. That is a concern to us that you're not operating safely. That's where I think we're going to go when we talk to the FAA. We're going to ask them about that sort of thing and what type safety regulations you ought to be operating under.

    But this debate about what you ought to be doing is, to me, for local government. That's for you all to decide back home.

    Mr. BROOKS. Just to address one thing about certificated pilots, just speaking for our general area, all of the law enforcement agencies that I know of, we not only have all certificated pilots, but also we provide factory training as well as private training every year for our pilots. It is not that we just take somebody and decide you're a pilot now. They go through all the same training, and we do keep certificates and do annual factory training for our pilots.

    Mr. BACHUS. I may submit one question to all of you to go back and answer, and I've already drafted it, because this sort of is the crux of all my concern. It is my understanding that public aircraft are not certified as airworthy by the FAA, are not maintained by FAA-licensed mechanics, are not reviewed by FAA safety inspectors, and that the pilots that fly them do not need an FAA license or medical certificate. What actions to you take to ensure that the flights will be safe? That would be the one question that I will send to you all, and I'd like to get that answered.

    I will say this—
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    Mr. DUNCAN. Mr. Bachus, we've only got a little over 7 minutes and I think Mrs. Seastrand—

    Mr. BACHUS. I will say this: their safety record is good, I believe. We're going to ask FAA about that.

    Mr. DUNCAN. If you want, we'll come back.

    Did you have something you wanted to get into real quickly?

    Mrs. SEASTRAND. Well, as usual in this job, we're always running and you just get into wanting to have a discussion and we have to go.

    I guess my concerns are what you had addressed—unfunded mandates from the Federal Government down to the local governments, but I think safety is my concern, as Mr. Bachus has just spoken. The other concern I have is, naturally, with competition. I'm going to be interested in hearing the other panel.

    Sheriff, I know in Ventura County you are working for our public safety and taking care of all of the things in law enforcement and the emergency areas that you have to. My hat is off to all of you. But tell me this: if I were to talk to our local helicopter people, what would I hear from them? I have heard from some of them. What kind of situations—I know law enforcement and emergency helicopter services are what you are interested in. What would be some of the areas that might be looked at as unfair competition?
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    Mr. CARPENTER. When business is bad, anything is unfair competition. That's a little bit of the problem. There is a generic fear.

    Mr. DUNCAN. Sheriff, I'm sorry, but we are totally out of time. I was going to try to let you all go, but what we're going to do is we'll just come back to Mrs. Seastrand can ask some more questions.

    We've got at least two votes, and possibly as many as four, so we're going to be in recess for a few minutes while we do these votes. I apologize, but thank you very much.


    Mr. DUNCAN. We'll go back on the record for our hearing here.

    Unfortunately, I had to interrupt Mrs. Seastrand and Sheriff Carpenter.

    Sheriff Carpenter, do you remember the question? Do you want to go ahead and continue your comments, or do you want me to go back to Mrs. Seastrand?

    Mr. CARPENTER. Mr. Duncan, I even remember Mr. Kim's 5-minute question.


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    Mr. DUNCAN. Go ahead and start back in with your comments then.

    Mr. CARPENTER. Thank you.

    The question of cost certification to bring 1208 ships up to civilian FAA standards is a very simple one to address, and I can do it very quickly.

    We have engines in crates in our hangar built by Lycoming that we obtained through the 1208 program with zero hours, meaning they have never been inside an air frame. They are off the assembly line at Lycoming. They have a military stamp on them. That means that they are not FAA certified and that they cannot be FAA certified under the current rendition of the circular.

    If we were to certify the ship that engine needs to go into, we'd have to buy a new engine from Lycoming, a new civilian engine to put in that ship. That's why it costs more to certify. It has nothing to do with the safety of it. It is the same engine off the same assembly line.

    The issue of the conflict or the ability to address a helicopter use company—a competing firm, in some people's opinion—is that in our situation, and I think probably in virtually every law enforcement situation, we're not talking about putting our ships out for hire on the civilian market. In our county we have an internal service fund program, which means that if one county agency does work for another county agency, but the money happens to be through a special tax district and not general fund dollars, that's not considered common treasury, and we can't bill public works for a flight that they might be on to inspect the safety of a dam, for instance. We would be unable to recover the cost for that.
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    So even though it is a county-operated flight and a sheriff ship, we can't recover any operational costs for it, even though the money exists in someone else's budget for that.

    We also have a cooperative agreement with the ambulance companies in Ventura County where we can—and have in the past—transport paramedics to the scene of an accident. We're in no competition locally to do that. There is no life flight, etc., from within the county, and we actually work with the EMS providers—private providers—to the extent that we will deliver a doctor from a private hospital, if necessary.

    So the competition aspect is minimal, if not non-existent.

    Mrs. SEASTRAND. So there is cooperation. In my understanding, county-to-county you cannot get reimbursed.

    Tell me about, for instance, Channel Island. Do you do any business with the Federal Government? I know there is so much helicopter business to the islands in the park.

    Mr. CARPENTER. As you know, Mrs. Seastrand, Anacap Island is Ventura County and Santa Cruz is Santa Barbara County. National Park Service typically handles their incidents, except for diving accidents. We do use the helicopter to some extent on that, and the Coast Guard also is operational out there.

    One situation that just happened was Sheriff Thomas from Santa Barbara County needed some aerial help on a sensitive narcotics investigation. He wanted to use us because we worked very closely with both Sheriff Thomas and Sheriff Williams. Under the new guidelines, we essentially were unable to do that. They couldn't reimburse us for anything. Technically there were private vendors available to do what they wanted to do, except that it was a sensitive investigation and he didn't want just anybody involved in it. He wanted sworn peace offer status people that he knew and had worked with in the past to conduct that. That's a very difficult situation for us to work with under the new guidelines.
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    Mrs. SEASTRAND. Thank you.

    Mr. DUNCAN. Thank you very much, Mrs. Seastrand.

    Trooper Hatfield, you testified that ''the cost would be prohibitive''—those were the words that you used—to come into FAA compliance, and it would be, you said, impossible to bring your aircraft into compliance. Captain Brooks said the cost is excessive. But neither of you mentioned any specific figure. Do you have an estimate as to how much it would cost your particular agency?

    Mr. HATFIELD. Yes, sir. I met with the FAA in Atlanta. I went over to Atlanta and talked to their engineering about getting an airworthiness certificate for the 1208 aircraft, be it an OH–58 jet ranger or a UH–1. Due to what has already been discussed about the tracking of the aircraft when they come out of the manufacturer, the FAA does not track the military parts and you have to replace all the components. It would cost more to replace the components with FAA certified components. They said you could just about go buy a new helicopter with less than it would cost to have an Army surplus helicopter certified to get an airworthiness certificate.

    That was from the FAA.

    Mr. DUNCAN. So have you come up with any specific figures?

    Mr. HATFIELD. No, sir.
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    Mr. DUNCAN. Captain Brooks.

    Mr. BROOKS. Yes. In our operation our current mechanics and chief mechanic are all FAA certified, have A&P licenses. As a matter of fact, two of our mechanics have their AI—an inspector's license—as well. However, they have worked for 17 to 20 years maintaining helicopters, about 15 of that maintaining our particular helicopters.

    Because they did not work for a part 135 operator at some time in their careers, they are not eligible to become certified as a part 135 mechanic.

    It is the same with our chief pilot's position and the director of operations. They would not be qualified because they did not have that kind of experience in their past.

    We would have to add three new personnel to our department, plus the cost of upgrading manuals and things of that type.

    We figure our cost would be approximately $150,000.

    Mr. DUNCAN. And what size is your department?

    Mr. BROOKS. Our department, by itself, is only a very small department. We have just two McDonnell Douglas 500 helicopters and it is a 16-square-mile city in Orange County. The entire operation, though—we operate nine helicopters, all McDonnell Douglas 500s. They are all certificated ships.
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    Mr. DUNCAN. Ms. Rich, you had testified that the FAA regulations would ''severely restrict.'' Those are the words that you used. You said it would severely restrict your operation to the extent that you might eventually just have to do away with your STAR operation. Specifically what do you mean by that? How many flights a year are you doing now, and how would this regulation—would it cut them in half?

    Ms. RICH. What we're doing—we have, for the first 8 years of the program at Travis County, Texas, we operated with a 135 certificate. We surrendered that certificate because of restrictions.

    One of the best examples I can give to you was several years back. It was December. It is cold in Texas. Our aircraft air conditioner was broken. The aircraft was legally grounded. We could not make emergency flights because the air conditioner was not operating. It took us over ten months to get that air conditioner added on to an MEL.

    Of course, in the meantime we immediately had the air conditioner replaced, which was not in our current year budget. Again, that brings in budget constraints for our county taxpayers.

    These are the types of operations and restrictions that we find—it is not the safety aspect that we have a problem with. I would contend that most every one of these operators here today are scrutinized by the public because we are a government operation, and there is no one in our operation that has any interest in cutting corners on safety. Safety comes first.
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    But when we cannot make a flight because an air conditioner isn't working or a light bulb in a cargo compartment has nothing to do with safety and there is someone that is 50 miles away from the one and only trauma center and we can't even get them by ground within an hour, then it puts a severe impact on our emergency services.

    The seatbelt issue, I understand with law enforcement, as far as having the prisoners handcuffed, it creates a big problem. Our problem is we have a paramedic and a nurse in back of that aircraft, and last Christmas we had an 8-year-old child in a head-on collision with serious head trauma. The only way to get him back in less than an hour was by air. The only way to keep him alive in that 15- to 18-minute flight was to do CPR continuously, and there is no way you can effectively do CPR while you are restrained in a seatbelt, but legally we have to be restrained.

    It is not something that our crews wish to say, ''We don't want to be.'' They choose to be in seatbelts. But when it is life and death—and you are faced with those every day—and you place yourself in the shoes of a paramedic trying to save an 8-year-old child, you won't stop doing CPR.

    Mr. DUNCAN. Thank you.

    Sheriff Carpenter testified earlier and said—

    Mr. OBERSTAR. Mr. Chairman, may I interrupt just a moment?

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    Mr. DUNCAN. Yes.

    Mr. OBERSTAR. On the point—many of the items Ms. Rich cited—light in the cargo compartment, and so forth—are in civilian aircraft terms understood as minimum equipment list items and can be deferred under current FAA regulations. I think we need a much broader understanding of some of these problems, and the fact that she is citing these questions raised is a concern for more FAA involvement and better understanding of these problems.

    Ms. RICH. While many of those can be deferred, it is the timeliness to defer those. If you go through an aircraft from nose to tail and you try to put every single item on there that you could defer, it would take you years and years to get through that aircraft.

    Mr. OBERSTAR. The point is it won't impede the immediate flight.

    Ms. RICH. Right.

    Mr. DUNCAN. Sheriff Carpenter testified earlier that the safety record of public aircraft is as good as commercial aircraft. Do any of you know of any studies—the National Transportation Safety Board or any other studies by university professors or anyone that has done any comparison of this? Does anybody on the panel know?

    Mr. BRANHAM. At the Department of Forestry and Fire Protection we have certainly done our own studies. It obviously is not quite what you're looking for, given that it is internal, but we certainly have ample information about our own safety record and other public aircraft and private sector aircraft.
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    Mr. DUNCAN. So what is it?

    Mr. BRANHAM. As I mentioned earlier, in the case of the comparison we used—and we compared our operation to the Forest Service operation because, frankly, the tasks tend to be fairly similar in terms of the kinds of missions we fly, and so on. Again, their accident rate using commercial aircraft, private sector aircraft or a contract, was five times greater than ours.

    Mr. DUNCAN. Five times greater?

    Mr. BRANHAM. Five times greater.

    Mr. DUNCAN. Well, thank you very much. We're going to have to move on to the next panel, but thank you very much for being with us and for your testimony here today.

    We'll start with the next panel in about 3 minutes.

    Thank you.


    Mr. DUNCAN. We'll go back on the record.

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    This is the next panel. We're very pleased that all of you have come here today to testify.

    We have Mr. Frank Jensen, who is the president of Helicopter Association International; Wanda L. Rogers, who is the president of Rogers Helicopter, Incorporated; Mr. Edward J. Driscoll, who is president and chief executive officer of the National Air Carrier Association, accompanied by Mr. William Langton, president of Southern Air Transport; and we have Mr. James K. Coyne, president of the National Air Transport Association.

    I thank you for being here with us. For some of you, thank you for being with us again. We will proceed with the testimony, I suppose, in the way that I've called out the names, so Mr. Jensen we'll start with you, please.


    Mr. JENSEN. Thank you, Mr. Chairman and members of the subcommittee. It is a pleasure and honor to be here today to testify on the important topic of public law 103–411.

    I'll present just a brief summary, understanding the full statement will be in the official records, as well as the statements of supporting organizations, the Small Business Legislative Council, the Business Coalition for Fair Competition, and several others which have been forwarded to the subcommittee.
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    HAI greatly appreciates and respects the important work done by public sector entities. We believe very strongly in the rule of law, and we particularly appreciate those public operators who use their aircraft properly and in compliance with pertinent laws and regulations.

    Having said that, there are two major issues which are involved in today's hearings, and these issues are safety and economics.

    First, regarding safety, public aircraft were first exempted from the Federal aviation regulations—or FARs—back in 1926 when there were just a very few public aircraft. Since then, the numbers and complexity of public aircraft have increased at a tremendous rate. By 1985, there were more public aircraft than existed in the entire civil fleet in 1926, and these numbers have continued to grow.

    In 1985, this subcommittee requested that the GAO report on public aircraft in Alaska. Despite a strong effort on the part of the GAO, the results were inconclusive because no Federal agency was overseeing those public aircraft or monitoring their safety. That same lack of such information on public aircraft applies today throughout the entire United States.

    Until P.L. 103–411 became law, there was no requirement for public operators to comply with any of the FARs. How true—and it was said this morning on panel one—that many public entities, and particularly the larger operators, do adhere to high standards; however, there is no Federal oversight to assure these standards. This is particularly true of small public operators at county and local government levels.
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    Surplus aircraft are important to this issue. With the United States Army now dumping—and I use that word deliberately—dumping several thousand military helicopters, these old, largely undocumented surplus helicopters are being given to small public entities who are not prepared to operate them. This compounds the problem because we have public operators not overseen by the Federal Government operating with impunity hundreds of tired, old, surplus military helicopters with the potential of such aircraft multiplying into the thousands in the very near future.

    FAA has stated that these surplus aircraft pose a safety hazard because a lot of them become hangar queens and undocumented parts are picked off and put on other public aircraft, all without FAA oversight.

    P.L. 103–411 redefined public aircraft because of Congressional concern over lack of FAA oversight. Three highly visible accidents of public aircraft were the catalyst for Congressional action.

    In one, the governor of Tennessee was injured, along with members of his staff. In another, the governor of South Dakota was killed. In the third, two Federal employees were killed.

    In each of these three accidents, regardless of whether or not the accident could have been prevented, the public aircraft were operated without mandated compliance with the FARs.

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    Mr. Chairman, P.L. 103–411 is a good law and does not impose undue constraints upon public operators unless—and this is a very big ''unless''—they choose to operate their aircraft for compensation, in which case they must merely comply with the same FARs with which commercial operators have always complied.

    This leads to the second major issue involved in today's hearings: economics.

    Private sector operators perform just about every function done by public aircraft, as listed in the 1996 helicopter annual, of which copies were provided, starting on page 170. When public operators perform these services in non-emergency situations, and often with uncertificated aircraft and with no Federal oversight, they cost the taxpayers double, because even public aircraft cost money to operate, and once again, because the tax base is being eroded—and this is a very important consideration.

    On page 11 of our written testimony there are four brief recommendations.

    First, that all public operators who conduct operations similar to those of the private sector should be required to either cease and desist or become certified as part 135 operators.

    Number two, the FAA should be required to withdraw the implementing advisory circular 001.1 and replace it with their original version, which was very much watered down because of extensive lobbying by public operators—heavy duty lobbying.

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    Number three, further DOD sales or transfers of uncertificated surplus military helicopters and parts to the non-military market should be prohibited. The chairman of Textron and the chairman of McDonnell Douglas Corporation went to see the Assistant Secretary of Defense and made that very plea to him.

    Finally, the potential liability of original equipment manufacturers of any surplus aircraft or parts distributed to the civil market should be limited.

    In closing, the safety issue speaks for itself. As regards economics, if the Congress allows public operators to continue to fly for compensation, particularly without Federal oversight, you will thereby be aiding and abetting the assured further diminution of the tax base without which no government entity can exist.

    Thank you, Mr. Chairman.

    Mr. DUNCAN. Thank you very much, Mr. Jensen.

    Next we'll hear from Ms. Wanda L. Rogers.

    Ms. ROGERS. Mr. Chairman and members of the subcommittee, thank you for holding the hearings and allowing input from the private sector. Please bear with me. This is my first time to testify.

    My name is Wanda Rogers. I'm president of Rogers Helicopters, a California-based, private, commercial helicopter company. I am here to express my concerns regarding the nonregulation of publicly-operated aircraft.
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    As you are all well aware, all privately-operated commercial aircraft are subject to strict regulation by the Federal Aviation Administration. This regulation has resulted in one of the safest commercial air carrier systems in the world; however, this has not happened without considerable cost to the private sector operators.

    The cost to private sector operators for complying with the Federal aviation regulations is substantial. All commercial operators must hire FAA-certified pilots; must employ FAA-certified mechanics; supply traceable, documented airworthy parts; and must at all times meet all requirements for the maintenance and operation of the aircraft.

    Furthermore, the FAA's enforcement program is very stringent to the private sector. Violations are cited. If they do not comply, they are shut down by the FAA. None of these requirements apply to aircraft operated by government agencies, and as a result government agencies are permitted to transport passengers and property without ever disclosing to the passengers on board that the aircraft is not regulated nor certified by the FAA. This situation is unfair, and I consider it unsafe.

    As private sector operators, it is not our intent to seek loopholes or exemptions from laws or regulations, as is presently allowed to many public sector operators who conduct similar missions. The compensation charged by government agencies is supposed to be much less than the rates that commercial operators charge for similar services. If this is the case, the reason is simple: those government agencies' costs are lower due to the non-compliance with the Federal aviation regulations allowed by FAA exemptions.

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    Furthermore, the government agencies' costs are subsidized by taxpayers in that the public agencies' operating costs are already provided for in its specific agency's budget.

    The current practice of loaning excess surplus aircraft to State and local agencies allows those agencies to compete for the same services which the private sector provides and creates a significant adverse impact on small business enterprises.

    It is my understanding that certain laws prohibit the use of excess surplus equipment, including the use of aircraft, namely:

    One, OMB circular A–76 and OMB A–126, which prohibits the Department of Defense from competing with private enterprise when commercial services can be purchased more economically.

    Two, 31 USC 1535, the Economy Act of 1932, requires a Federal agency to determine whether comparable goods and services are available as conveniently or economically from the private sector before obtaining goods and services from another Federal agency.

    Three, the services of the National Guard cannot be used in competition with private enterprise. The National Guard is to supplement not supplant the civil labor force.

    Four, the U.S. Forest Act prohibits the Forest Service from loaning excess helicopters to States for firefighting when comparable services are available from commercial operators—16 USC 2109(A), 2109(A)(3), and 2101(C).
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    Five, the Federal Property and Services Act authorizes the GSA to provide excess helicopters to Federal agencies' use only. There is no express authorization for the GSA to provide excess helicopters for States' use—40 USC 471, 1982; 41 CFR 101–43.314, 1993.

    Although prohibited by the U.S. Forest Act, an exception to the Federal Property and Services Act allows the Forest Service to loan excess helicopters to State agencies. This allows the Forest Service to circumvent its own rules and regulations and, in effect, compete with and encroach upon the private sector operators' right of non-governmental competition by lending helicopters for compensation to State and local agencies.

    In a nutshell, the result is government-subsidized, unfair competition. This situation should not and cannot continue. I urge this subcommittee to abolish the practice of publicly-operated aircraft transporting persons and property for compensation in direct competition with small business. This practice is now strangling the small helicopter industry and it must be ended.

    In addition, the subcommittee should enact legislation requiring all government agencies except military to comply with all safety and operational regulations imposed on private enterprise by the FAA. Only by taking this action can you ensure that free enterprise will be allowed to continue and to compete on a level playing field and that our airspace will continue to remain a safe place in which to operate.

    Thank you very much.

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    Mr. DUNCAN. Thank you, Ms. Rogers.

    Mr. Driscoll.

    Mr. DRISCOLL. Mr. Chairman and members of the committee, we are pleased to address H.R. 1320.

    H.R. 1320, as you all know, would restrict the availability of aircraft in excess of 12,500 pounds—the C–130 aircraft, to be specific—from engaging in activity for compensation for hire, from being taken out of the United States unless the administrator judges that the aircraft is required outside of the country after he has considered certain criteria within the bill, one of which would be whether there is a commercial operator available to provide that service.

    The C–130 aircraft, from a background standpoint, have caused problems over the years, mostly in overseas locations, in competition with U.S. air carriers—carriers who are committed to the CRAF program, carriers who provide commercial service.

    Some operators are taking the airplane out of the country, mainly in Africa, the Philippines, and other places, and operating it for various entities in competition with U.S. air carriers.

    One of those entities is the United Nations, the World Food Organization, who conspired, as we would say it, with our Department of State to get them to grant an export license for an airplane that had been sitting for 3 years in Africa, not used, so that an operator could take and dry lease that airplane ostensibly to the United Nations World Food Organization, have a crew for the airplane provided by another entity, all under the aegis of one broker in London who was masterminding the whole thing because if the operator had tried to wet lease the airplane with crew he couldn't do it.
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    But he found a gimmick under the FARs. He could dry lease it, and FAA said, ''Gee, we can't preclude him from dry leasing.'' But the same operator that was taking it out and dry leasing it was going to manage and operate the system for the World Food Organization.

    There were safety issues involved. The C–130 aircraft cannot be certificated, as a civil aircraft. It would be too expensive for anybody to try to do that because it met military specifications, it doesn't meet the FAR specifications, and in many cases the aircraft that are flying around here—C–130s—do not even meet the military specification that they were required to meet when they were in military service, nor do they meet the FARs.

    We have reports we can provide the committee of a review of this aircraft in Africa which was under an FAA registration number, that a certified maintenance organization found the aircraft totally unfit to be flown. Yet it was allowed to be flown under a FAA registration number. State Department, in approving the export license, required it must maintain it FAA Registration, and FAA supervise it. FAA was never able to send an investigator over to check out the condition of the airplane because it was in Angola, and then it was in Liberia, and the investigator did not want to go into those areas to check out the airplane.

    The fact of a maintenance program came to light as a result of that—FAA then did a check, and they decided that all operators of C–130s would have to bring their airplanes up to military specification, but they gave them a 4-year period to bring them up to military specifications and that 4-year period is still going on. There is an unlevel playing field here vis a vis civil aircraft.
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    Then the Forest Service goes to Defense (DOD) and says, ''Give us some of your C–130s for firefighting purposes.'' They initially intended to lend those to a civil operator to fight forest fires. They changed. They then illegally transferred title of those airplanes to operators that they carefully selected—not open competition. Forest Service selected the ones to get them.

    There has been an investigation now going on for some 5 years. Chairman Rose of the Agriculture Subcommittee held hearings on this following an IG investigation that found that there may have been some hanky-panky within the Forest Service surrounding the transfer of these airplanes. There is a criminal investigation still going on by the Department of Justice. GSA has ordered the Forest Service to reclaim those airplanes, and there are some 30 C–130s.

    Now, we'll state up front we have no problem with the C–130 aircraft being used for firefighting purposes. That's one of the specific services that may be performed by that aircraft. We do object to it engaging in commercial operations for compensation and hire, and some operators that got those airplanes through the Forest Service diverted the airplanes into Mexico, Saudi Arabia, and so forth for commercial purposes.

    That's why we think 1320 is long overdue. Before the introduction of 1320, Mr. Oberstar and Mr. Clinger requested the Secretary of Transportation to get the agencies together. Try to control what is going on. Secretary Skinner did, and for a short time the problem was solved administratively. However, as people changed it broke open again.

    Mr. Oberstar again went to Secretary Pena. Pena got the agencies together. The agencies now stood on their prerogatives and State says, ''No way we're going to grant export licenses, without reference to FAA.'' Members of your subcommittee staff sat in on those hearings, and they can verify what I say.
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    Therefore, we think that 1320 is long overdue. It gives the FAA the authority they need to determine whether that airplane should be taken out of the United States and whether they can surveil it after it is taken out of the United States.

    We certainly don't want non-certificated airplanes, airplanes that don't meet the requirements of the Chicago Convention, flying in international airspace or any place unless they can be properly surveilled.

    Therefore, we would urge the committee to favorably report 1320 and hopefully to enact it into law.

    The FAA may say they don't need this authority; however, they have not been able, under their existing rules and regulations, to control it or contain it.

    We feel 1320 is essential and will give them the tools they need to do their job.

    Thank you very much.

    Mr. DUNCAN. Thank you very much, Mr. Driscoll.

    Mr. Langton, do you have any additional comments you wish to add at this point?

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    Mr. LANGTON. No. I think Mr. Driscoll covered it fully.

    Mr. DUNCAN. Okay. Thank you very much.

    Our next witness will be Mr. James K. Coyne, who is president of the National Air Transport Association.

    Mr. Coyne, thank you for being with us again.

    Mr. COYNE. Thank you very much, Mr. Chairman. It is a great privilege to be back with you again.

    At this particular time in the day I'm reminded that there is no free lunch. It seems, from time to time, that there are people in the private sector who like to think that there is a free lunch.

    When I left Congress 12 years ago I went to work in the White House, as you probably remember, and I was the director of the Office of Private Sector Initiatives. One of my jobs was to try to deal on a virtually day-to-day basis on this dilemma of the proper role between public sector organizations and private sector organizations.

    Unfortunately, at that time—hopefully not any more—many people in the public sector, whether it was local or State government, felt that they had a God-given right to get their equipment and supplies cheaper than anybody in the private sector. Other people in the public sector felt that they had a God-given right to be exempted from Federal regulations that were imposed on the private sector. They also felt they had a God-given right, whenever they didn't like the rules that were placed upon them, to go to Congress and try to get the rules changed.
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    Fortunately, this Congress has learned in the last couple of years that these former views of public sector led to inefficiencies, they led to added costs, they led to monopoly conditions, they led to unfair playing fields, unfair competition with private sector organizations that time after time could drive private sector entities out of business.

    Of course, that's why we are here today—to once again address the question that this committee so properly dealt with in the original law, 103–411.

    I think common sense is called for in this particular case to understand that, while the people in the public sector who feel that law imposed some restrictions upon them, clearly the sentiment of Congress then was to look at all of these complaints. Nothing new has been brought forward in this hearing that was not addressed and studied by the members of this committee when this law was passed.

    Full understanding of their concerns was given at that time, and the public interest was to create a balance between the public sector and the private sector so that the private sector could survive and thrive.

    We heard, of course, on the earlier panel promises from the public sector spokespeople that they do not ''overly compete'' with the private sector. This is a little bit like saying that someone is not overly pregnant. They either compete or they don't compete, and the reality is that they compete day in and day out. It is not just, as they would lead you to believe, on a time-sensitive, ''I've got to find somebody to operate the helicopter for me right away.'' More often than not they are competing by going out and seeking business from entities in neighboring counties well before there is a need appear to try to compete unfairly with the private sector.
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    There was a lot of emotion expressed in that earlier panel. Some of it was very dramatic—the story of Mrs. Jordan's near drowning. I would just like to say, with regard to that, that most of the Members of Congress today—or at least many of them—live and reside in Fairfax County. If they do and if they find themselves in a situation like Mrs. Jordan experienced in Fairfax County and they call 911, it will be a for-profit helicopter organization that is prepared to deal with emergencies exactly like Mrs. Jordan's if any Member of Congress or any other citizen of Fairfax County finds themselves requiring this emergency service.

    But is it fair for that company that provides this service here in Fairfax County—is it fair for that company that has to meet every one of those Federal regulations under 135, that has to pay taxes, that has to hopefully earn a profit to survive—and I almost felt, listening to the testimony this morning, that ''profit'' was a dirty word. It is not a dirty word, as I think this Congress fully appreciates.

    Here in Fairfax County a private sector helicopter firm affiliated with Fairfax Hospital provides this needed service on a competitive basis, paying its taxes and meeting all of the highest safety regulations, and we, frankly, feel, as Congress concluded just a few years ago when it drafted 103–411, that should, in fact, be the level playing field that exists today.

    As you know, NATA represents thousands of small businesses—businesses that employ, in most cases, only a dozen or so employees. They may have earnings of only a few hundred thousand dollars, in total. For them, unfair competition can and does drive them out of business, destroying the economic base for all of these companies across the country.
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    We have no axe to grind with public sector entities. We believe they are an important part of the partnership. But clearly they have to operate under the same safety standards of 135 and they cannot be allowed to take advantage of their economic unlevel playing field to drive those of us in the private sector out of business.

    I hope I might also have the honor of including my full written testimony into the record and stand ready to answer any questions, and again thank you all for the privilege to represent our members here today.

    Mr. DUNCAN. Yes, sir. Mr. Coyne, thank you very much.

    Let me ask you this, Mr. Coyne. You know, from having served in Congress, that all Members of Congress—or practically all the Members of Congress—like to think of themselves as supporters of law enforcement. They really like more than to think of themselves in that way; they like to support law enforcement whenever possible. Yet, also I think almost all of the Members of Congress like to think of themselves as supporters of small business.

    Where is the middle ground? Do you think—you seem to indicate by your testimony that you feel we are there right now, but you heard the earlier panel. Almost all of the people who I talked about that we turned away from testifying were other local law enforcement. There is apparently a pretty strong feeling out there now among local law enforcement people that we are not reaching a middle ground at this point, that we're being sort of unfair to the local law enforcement. How do you respond?

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    Mr. COYNE. You have to look from where they were coming from for the last several decades. They had an extremely advantageous position for literally 40 years or so where they did not have to meet the safety requirements of 135 if they were going to engage in commercial activity.

    I think the Congress very properly said that the most highest responsibility of everybody in our society, whether they are law enforcement officers or anybody else—we don't like to see stories of law enforcement officers in hot pursuit with their cars and causing automobile accidents because they were given too much leeway. Similarly, we are concerned, as citizens, that anybody operating complicated pieces of equipment—and, of course, here you are operating equipment over our most congested areas—clearly they must live up to the highest safety standards.

    To be told that is something that perhaps they didn't want to hear. We, in the private sector—many of us feel there are elements of the 135 regulation which are far too stringent. But to say to a group of people, ''You should be given an exemption from these rules simply because what you do is so good—'' and it is good, but what we do is equally good. There are many other people. The people who operate that helicopter for Fairfax Hospital, they believe that what they do is every bit as good and worthy as any law enforcement office or any other person, and to say to that person, ''You've got to operate under these stringent rules and the cost, and this person over there shouldn't—'' I don't think it is fair to say that somebody's activity is so worthy that they can be exempted from this safety requirement.

    Safety is really the sine qua non for the entire industry.

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    Mr. DUNCAN. What did you think about the example the witness gave about this being similar to a requirement that we use taxis instead of patrol cars?

    Mr. COYNE. We don't regulate taxis by the Federal Government. There is no Federal Taxi Administration. There is no Federal Snowplow Administration, so if a county wants to rent a snow plow from another county that's fine. The Federal Government is not involved in that.

    But aircraft are and have always been regulated by the Federal Government. I think Mr. Bachus' argument overlooks that fact. We clearly live in a world where the Federal Government and this committee establishes the safety criteria for all aircraft. If this committee feels that all aircraft operating for commercial hire in this country ought to meet the 135 standards imposed on them, I think it is this committee's authority, this committee's and the Federal Government's authority to make that message clear.

    I strongly support what Mr. Kim said earlier today. There are rules that the Federal Government has to meet, and we cannot exempt somebody just because they believe what they do entitles them to some exemption.

    The example of the light bulb not being available and because of that a helicopter can't be sent out—the helicopter that operates on Fairfax County that will rescue your son or daughter if there is an accident in Fairfax County, that helicopter has to meet all those 135 things. How do they do it? They keep an inventory of critical parts available.

    I think there was some misrepresentation as to what parts really are on the minimum equipment list, and I won't get into a debate with the former panel on that, but if a private sector party can make sure he's got critical parts in stock 24 hours a day to meet these needs, why can't a public service entity have the same standard of safety?
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    Mr. DUNCAN. Mr. Driscoll, do you object to the FAA allowing C–130s and other similar planes to be used for special purposes such as firefighting?

    Mr. DRISCOLL. We do not object to the FAA permitting and certifying this ex-military airplane for the special purpose for which the regulation FAR 21–25 specifies, one of which is firefighting, crop dusting, and so forth. We think that's legitimate provided that operator restricts himself to that special purpose for which he obtains certification.

    Our gripe is that those operators have diverted those airplanes from the special purpose to the carrying of cargo for compensation and hire. They are precluded from carrying passengers. It is a cargo airplane. But they are engaging in commercial activity without meeting the commercial specifications, without meeting the safety requirements required of other operators, and to that extent they should not be permitted to do that.

    Mr. DUNCAN. Let me ask you one other question. My time is up, but before I go to Mr. Oberstar I'll ask a question. There is an old saying ''The proof is in the pudding.'' Mr. Jensen or Ms. Rogers, you particularly mentioned safety, and you heard the previous panel say that public aircraft was just as safe and perhaps safer—Mr. Branham said five times safer than commercial aircraft. How do you respond to that?

    Mr. JENSEN. If I may, in the first place, nobody really knows this definitively because the records have not been kept, but I would like to cite as an example of the fact—now we're speaking of surplus aircraft—I have very good information from Bell Helicopter Textron which shows that the accident rate for surplus turbine-powered military aircraft is four or five times higher than that for certificated turbine aircraft.
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    I'll cite just one example of usage that is improper. This is not public usage. This is private sector usage. Those surplus Hueys that are used for logging, Hueys were not built to sustain external load for a long period of time, and the 42-degree gear box fails with great regularity, and the accident rate for Hueys used in logging is tremendous.

    The same would apply for Hueys that were used for flying ''bambi buckets,'' which is 600 pounds of external load. So we do have definitive information as far as surplus use in the private sector, but the records do not exist for measuring safety of public aircraft. They are just not there.

    And I think, Mr. Chairman, there was another question about comparable cost, also. Again, when the costs are scrutinized on the basis of crew costs, amortization, fuel cost, and maintenance, all the factors are put in to determine cost. Only then can there really be a judgment made as to which is more cost-efficient. This has not really been done with any accuracy.

    Mr. DUNCAN. Of course, public aircraft generally have to fly more dangerous missions than private aircraft. Would you agree with that if they are flying in conditions like we saw in this ''Today Show'' segment and they are flying over forest fires and things of that nature?

    Mr. JENSEN. I will certainly say that I have great respect for some of the dangerous situations that public aircraft and particularly law enforcement aircraft get into, but all of those missions have been done and are being done under contract by private sector, as well. There are as many or more private sector helicopters out fighting the same forest fires as there are governmental aircraft.
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    Mr. DUNCAN. Ms. Rogers, would you like to say something?

    Ms. ROGERS. Yes, I would. We perform all the services, including having contracted to law enforcement. We provide drug interdiction services, we have provided the aircraft only and the pilots for law enforcement also under contract. So these services, while well-stated by the public sector, are also available and being provided on a constant basis. Many of them were first served by the private sector. Firefighting was first implemented in 1947 by the private sector in the California forests. We have been doing these things for a very long time.

    Mr. DUNCAN. Are there small, rural counties where some of these services would not be available from the private sector?

    Ms. ROGERS. Not in California that I know of, and I think there are services in all 50 States in the Union. We also provide emergency medical services at no cost to any county, city, or State agency. They are perfectly free-standing and we are under oversight by the FAA. We perform under part 135 on a consistent basis. Our down time is very minimal. We rarely ever miss a call for down time. We provide this for two counties in the State of California. So it does not necessarily have to be done by a public agency.

    Mr. DUNCAN. Thank you very much.

    Mr. Oberstar.

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    Mr. OBERSTAR. Thank you, Mr. Chairman.

    Again, I think the testimony of this and the preceding panel shows the complexity of the issue and how it does not readily admit of a quick fix, as maybe some of our colleagues were thinking earlier.

    We are also dealing with two related but distinctly different issues. The C–130 question raised by Mr. Driscoll is different in nature from that of the public use aircraft, but nonetheless serious. Let me deal with that first.

    The Administration, which will be testifying before our committee in another hearing, takes the position that they have sufficient authority to monitor the operation of restricted use aircraft and that therefore the bill I have introduced is unnecessary. Let me give you a chance to respond in advance to their position so I can raise it with them when they come and testify.

    Mr. DRISCOLL. We tried to find out their position and I talked to Tony Broderick, talked to the Administrator, and I didn't get a very clear insight as to what they were going to say.

    However, taking your example that they are saying they have all the authority necessary, I'll give you one example where they didn't have all the authority.

    On an airplane that State Department did ask their views on, whether they should permit it to be exported, Tony Broderick sent a letter back on behalf of the Administrator saying absolutely no. This applicant was a very smart operator, so he went out to the field and one of the FSDOs stated he could dry lease the airplane to the UN. So, on the basis of that certification from the F'SDO, State Department said, ''Hey, it is legal to dry lease. We'll go ahead and allow it to dry lease.''
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    There's the example I used a short time ago of it going through a broker, then another party brought in a crew, and it ended up being tantamount to a wet lease for the UN, which he was precluded by regulations from doing, so he circumvented the regulations.

    FAA has told me, ''We have no power to preclude the leasing of the airplane.'' The bill 1320 is specific and it would preclude that practice, so therefore there is one point that they need additional authority.

    There are others, too, because they say they don't have the power and they don't have the personnel to surveil these airplanes once they get into overseas locations, and they really question their right to move in on another country. They don't have to let the airplane out of the country if they don't have the power to surveil it.

    Mr. OBERSTAR. I think that answers my question, and those are the kinds of—

    Mr. DRISCOLL. Bill Langton might want to add his two cents worth since he is the operator of the L–100 which is the commercial version of the C–130.

    Mr. OBERSTAR. Mr. Langton.

    Mr. LANGTON. Clearly, I think there is a lot of authority that the FAA has. How much of it they can exercise within their budgets and so forth is a question.
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    What this bill does is makes them ask that question before that aircraft departs the United States. What is the purpose of that? Is it going to be in commercial use? If it is, how are we going to monitor this operation? It does charter them with that responsibility to ask that question. I think that's the gist of it.

    There are a number of operations going on in Third World countries that to me are an embarrassment to the country. U.S. aircraft are considered a premium around the world. We shouldn't be sending older aircraft that are totally unregulated in this type of back door approach.

    Mr. OBERSTAR. That's my concern, that our military is either selling or disposing of aircraft at bargain basement prices to other governments, and then those aircraft come back in the marketplace and compete with our own civilian operators who have purchased civilian aircraft, and that's a practice that we need to address. That's what this bill does. We'll explore that matter further with the FAA.

    A question that sort of arises out of the averaging out of the previous panel's testimony is that, because an aircraft is built by the military and meets a military specification, but does not meet an FAA certification standard, does that make the aircraft in and of itself unsafe? Does it make it unairworthy?

    Mr. JENSEN. I'd like to answer that.

    Mr. OBERSTAR. Either fixed wing or rotary wing aircraft.
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    Mr. JENSEN. Mr. Oberstar, I'm a retired U.S. Army pilot. I served in the military for 31 years, a couple of tours in Vietnam. I felt pretty safe in the aircraft, but then they were 30 years newer than they are now. Those same aircraft have been flown in combat in Vietnam, they have been flown in combat in Grenada, they have been flown in combat in the Desert Storm and other places, and the military, for all of its good work, has a different approach to maintenance than the private sector does, than the FAA does.

    For example, in the private sector we must maintain cycle count. Every time you start an engine there is a cycle. You keep track of rotor blades and other components. These are not documented in the military aircraft.

    So they are old, number one; they were built for a short life in the military, number two; they were not maintained in accordance with civil standards, number three.

    We feel that the FAA has established a set of airworthiness standards and certification criteria that has been developed in many, many years in a rule-making process where the private sector cooperated in making these rules. They are good rules and they work.

    We should have one set of standards that applies to everybody.

    For example, we in the Helicopter Association International are not two-faced. We would like to see some of these shirt-tail private sector operators brought up to higher standards, also. We think that anybody, private or public, who flies the public for hire should have to comply with part 135.
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    So we are not just saying, ''Make them do it.'' We're saying, ''Make us do it, too.''

    Mr. OBERSTAR. Thank you.

    There is another aspect of the issue, and that is the emergency situation. I'm sure some of your members of your organization have contracts to fly with local or State government agencies, and when an emergency arises you are on call. Is that correct?

    Mr. JENSEN. That's correct.

    Mr. COYNE. Absolutely.

    Mr. OBERSTAR. You fly those aircraft to meet the emergency call at the request or the direction of the local government?

    Mr. COYNE. And the pilots are as ready to fly as any other emergency group would be prepared to fly.

    Mr. OBERSTAR. Under current law—that is, the law that was enacted in the last Congress—cost reimbursement is authorized between local government units when emergency services are required and there are no commercial aircraft available. They don't have to call around at the emergency point and say, ''Are you available to serve us.'' They can just order the aircraft—under the current FAA rules, order the aircraft out, do the services, call FAA and say, ''We've done this.''
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    Mr. COYNE. There is always a risk that someone may try to use that exemption improperly, and I hope that the FAA will continue to make sure that doesn't occur.

    But assuming that does not take place, that exemption should provide all the leeway that any municipality needs to respond to an emergency situation.

    Mr. OBERSTAR. I think it would clearly be a horrible situation to say, in the case of Barbara Jordon as a case, not as an individual, but just as a case, ''We couldn't save that life because we had to shop around and find a private sector aircraft.'' That's not what the law intended and that is not its application.

    Mr. COYNE. And, in fact, I think if you—it has been some period of time that this law has been in effect. If there had been even one single case where some public risk had occurred because of what you hypothesized, surely we would have heard about it this morning, but there has not been one.

    Mr. OBERSTAR. Let me ask a question on the other side of that coin. Do you believe it is inappropriate, improper for communities, counties, and States to own and operate their own aircraft, Forest Service or Park Service included?

    Mr. JENSEN. Could I answer that?

    Mr. OBERSTAR. Yes.

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    Mr. JENSEN. Certainly not, just like they own other equipment, but it should be used in compliance with the prevailing laws, and if they are used to transport passengers, the passengers should be assured of a degree of safety.

    I'd like to go back, Mr. Oberstar, if I could, to your comment about emergencies. I think that the advisory circular exempts EMS, it exempts firefighting, it exempts many, many other things, and I believe that there is much ado about nothing being heard here because most of the things that these public sector people want to do are exempted already anyway. Many of them are.

    Mr. OBERSTAR. Thank you very much. I've prevailed on the chairman's time.

    If I may just make a comment to close up, Mr. Chairman, that will conclude for me.

    There are serious questions. There are questions about certification, whose standards, at what point. As Mr. Jensen said, there are many old aircraft—old in years and old in cycles of operation—in use in the public sector. There are safety questions raised. There are also competitive questions raised.

    I don't think, in the course of the hearings that we're going to have, that we are going to resolve that question. I think we need to explore those issues, as the chairman is wisely and responsibly and carefully and methodically doing. But I think that since the 1926 law was put in place there has not been a complete overhaul of that 1926 public use aircraft regulation act.
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    We should not legislate at this time. I think the FAA ought to call a conference similar to the safety conference they called in January of this year, and bring the public sector, the private sector, military aircraft manufacturers, private sector aircraft manufacturers—Boeing, McDonnell Douglas, Bell—all together and have a conference on this thing and lay these issues out and let you folks get in and come to grips with the problems, find a shortcut or accelerated means of certificating aircraft that are now in use, or grandfathering them in, and a similar means of certificating future purchase aircraft, and then come back to the Congress and say, ''This is what we have done and this is where we think legislation is needed.''

    Thank you, Mr. Chairman.

    Mr. DUNCAN. Thank you, Mr. Oberstar.

    Mr. Coyne, let me come back to you for just a minute. You heard Mr. Jensen just now say that this was much ado about nothing because most of these uses that the law enforcement agencies want to put their helicopters and their aircraft to are exempted anyway, but let me ask you that from a different direction.

    You heard Mr. Branham say that most of his budget goes to the private sector already. He said he spends $8 million a year—his department does—with the private sector.

    Is this a serious threat? If these public agencies were given the relief they have requested here today and this law was repealed, would this have a dramatic impact, do you think, on your businesses? Do you think there would be a great deal of competition?
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    Mr. COYNE. There is no doubt about it. When you look at the number of aircraft that are in the hands of public entities, both helicopters and fixed wing, and if they were given all that they ask to compete, it would have a devastating effect on the businesses that are involved.

    Let me add one quick point, if I can. There is a different way of looking at economics for a private company and a public entity. A public entity, as you know, operates in a world where its bottom line—for example, we saw the construction of the Denver Airport that had a $2 billion overrun. You'd never have that in the private sector.

    Private sector operates to literally a 1 or 2 percent margin of profit, and it is, in fact, that profit incentive that forces them to keep their costs as tightly controlled.

    I think, therefore, with such a narrow profit range, losing a chunk of their business, even if it is only 10 or 15 percent of their sales, would have a devastating effect.

    Mr. DUNCAN. Do you have some reason to believe, though, that this $8 million from the Department of Forestry in California would stop going to the private sector?

    Mr. COYNE. There is no doubt that it would. We get phone calls virtually every week from our members. I'm sure HAI has exactly the same people calling them.
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    The company that I mentioned in Fairfax at Fairfax Hospital, Air Methods, called me not too long ago saying that they were threatened because the Fairfax Police helicopter was starting to try to—as they would say—''poach'' their business from them.

    This is, in fact, a serious threat. I don't think it is any exaggeration to say that you would see perhaps as much as 10 percent of the businesses involved in this suffer serious economic harm if this exemption was allowed to be changed.

    Mr. DUNCAN. Do all of you agree with that?

    Mr. COYNE. Yes.

    Mr. JENSEN. Yes. Could I add something to that?

    Mr. DUNCAN. Yes, sir.

    Mr. JENSEN. Well, let's go back to the California Department of Forestry. When they first acquired their fleet of surplus aircraft back in about 1980, immediately they turned off contracts with Harris Helicopters, with Rogers Helicopters, with many, many other commercial operators, so the first thing that happened was, boom, the contracts stopped.

    The second thing that happened is these aircraft are themselves then made available for fighting on other fires.

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    Also, the California Department of Forestry, although it does provide a lot of contract service, also goes out and hires other governmental entities to come in and fight fires for them.

    So the more public aircraft that there are out there competing with the private sector, the sooner the private sector is going to fold up.

    The Soviet Union tried it for 70 years. It didn't work there. There is nothing to indicate it will work here.

    Mr. DUNCAN. All right.

    Ms. Rogers, you actually lost a contract or some contracts when the California Department of Forestry acquired their fleet; is that correct?

    Ms. ROGERS. Yes, we did. That's correct.

    Mr. DUNCAN. What size contract was that?

    Ms. ROGERS. That was around 1980. We objected at the time. We met with the director of the Department of Forestry in California. That was the decision. They were going to go that route.

    At the time, the commercial sector was operating and contracted for the smaller jet ranger type helicopters, and those—I don't remember the numbers. That has been too long ago. But it was considerable.
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    Mr. DUNCAN. It was significant, though?

    Ms. ROGERS. Yes, to our budget at that time.

    Mr. DUNCAN. All right. Thank you very much for being with us today. This has been a very interesting and informative panel. Thank you very much.

    That concludes our hearing.

    [Whereupon, at 12:50 p.m. the subcommittee was adjourned, to reconvene at the call of the Chair.]

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