Letter to Steve Dickson, Federal Aviation Administration Administrator - Required COVID-19 Testing of All Passengers

Letter

Dear Administrator Dickson:
As we all continue to address the COVID-19 global pandemic, I write to request your
cooperation in confirming Hawaii's ability to impose and enforce conditions on air travel to
Hawai"i which are critical to ensuring (a) the health of Hawai"i residents and visitors and (b) the
safe recovery of Hawaii's economy and in particular our travel and tourism industry.

These conditions would be as reasonably determined by the State of Hawai"i as necessary to
protect public health. This could include requiring testing of all intended passengers (including in
this letter crew) on any direct air travel to Hawai"i before boarding. Such testing could include at
least fever testing and, as available, on-site rapid COVID-19 testing, as now required by
international airlines such as Emirates on some flights. The requirement for enforcing these
conditions would be borne by the airlines as a condition of accepting any intended passenger on
any direct flight to Hawai"i, and any airline would be required to deny boarding to any intended
passenger with a fever which, under Centers for Disease Control and Prevention (CDC)
guidelines, indicates potential COVID-19 infection or who tests positive.

By way of background, almost all passenger transportation into Hawai"i, both domestically and
internationally, is by air. In 2019 there were some: (i) 13,620,000 total air seats operated to
Hawai"i, (ii) 10,280,000 visitor arrivals; (iii) 7,250,000 domestic visitor arrivals; (iv) 3,030,000
international visitor arrivals; and (v) an average daily visitor count of 250,000 (against a resident
population of 1,400,000). In short, prior to the COVID-19 crisis, the great majority of passenger
air arrivals in Hawai"i were non-resident, discretionary visitors (tourists), who arrived at a rate of
close to 30,000 per day, and on any given day they constituted close to 20% of our de facto
population.

This is, of course, a recipe for the rapid spread of COVID-19 among Hawaii's population (and,
for visitors returning to their homes and residents exiting elsewhere, back to their destinations).
And, in fact, in the stages of the spread of COVID-19 to date in Hawai"i, a major contributor (especially in the first few weeks of the pandemic, when it was virtually the sole contributor) has
been travel-related from both returning residents and visitors.

Hawaii's response has been among the most restrictive in the nation. A statewide work-at-home,
stay-at home order except for essential services has been in effect since March 26th. And a
mandatory 14-day quarantine for any air passenger arriving in Hawai"i has been in effect since
March 26th as well.

As applied to returning residents and visitors staying in resident homes, the quarantine requires
them to remain in those home for the fourteen days. As applied to non-resident visitors not
staying in residences but instead in hotels or other transient accommodations (tourists), the
mandatory 14-day quarantine requires such visitors to stay in their hotel or accommodation
rooms for the full period.

This and the other impacts of COVID-19 have had the effect of significantly reducing air travel
to Hawai"i. From institution of the air passenger quarantine on March 26th through April 30th
there were 23,302 arrivals, of which 8,224 were returning or intended residents and 4,508 were
visitors.

However, these numbers have been increasing rapidly in May, especially the visitor count,
reflecting that the quarantine is not operating as any real deterrent. Moreover, it is very evident
that these air passengers, especially the visitors, are generally not honoring the 14-day postarrival quarantine.

These air passengers arrive from various destinations with widely varying efforts to mitigate the
public health effects of COVID-19. Some jurisdiction are just as stringent as Hawai"i, if not
moreso, while most others are not. Their continued arrival in Hawai"i, at increasing numbers,
with an ineffective post-arrival quarantine, constitutes an unacceptable risk, and it is reasonable
for Hawai"i to seek to institute pre-boarding conditions to minimize this risk wherever and
however possible.

In my discussions with Federal Aviation Administration (FAA) personnel to date, I understand
that FAA does not question restrictions imposed on air passengers once they arrive in Hawai"i as
an exercise of Hawaii's general police powers. But that is a far more cumbersome, unworkable,
resource-intensive effort (diverting critically stretched and needed first responders to tracking
and enforcement efforts), with far more public health risk, than straightforward pre-screening of
intended passengers for compliance with reasonable restrictions before they board airplanes and
denial of boarding for non-compliance.

I further understand that FAA has expressed some concerns as to who would enforce airline
compliance with reasonable pre-board restrictions. I believe most if not all airlines would take
the restrictions and their responsibility for enforcement very seriously, and do not in any event
see a requirement that each intended passenger submit to a basic test as imposing any significant
requirement on the airlines (in the same way as is true currently for many international airlines
and travelers to Hawai"i or other domestic destinations). The first domestic carrier, Frontier
Airlines, has announced it will implement a similar restriction requiring temperature screenings
for all passengers and crew prior to boarding flights beginning June 1st. Airlines for America, the industry trade group for the largest American passenger carriers, has endorsed requiring
temperature screenings as well.

I further understand that the State of Hawai"i imposed the 14-day incoming quarantine
requirement in large part because it understood from the FAA, in its March and April guidance
and otherwise, that the imposition of such pre-board conditions was not authorized by existing
statutes and regulations and would jeopardize federal funding. I also understand from my
discussion with the FAA to date that in fact the FAA is focused on the safe and efficient use of
the nation's airspace (with safe not generally including protection of general ground populations
from COVID-19 and efficient generally referring to maximum use), that the protection of the
general public health in addition to air-related risks is not within FAA's mandate, and that absent
superseding authority in other federal agencies such as the CDC, the FAA is unwilling or unable
to authorize the State of Hawai"i to impose reasonable public health-related restrictions on
travelers as a condition of travel to Hawai"i.

I ask and urge you to revisit these issues and assist me, the State of Hawai"i, the people I
represent, the visitors to Hawai"i and the destinations to which they will return in finding a
solution allowing the State of Hawai"i to impose reasonable public health pre-board conditions
on intended passengers to Hawai"i. This could include flexibility within existing statutes and
regulations, identification of superseding authority in other federal agencies, and proposed
changes to existing regulations and statutory authority. In the latter case, I ask that you initiate
any required rule changes under expedited authority, and propose to me specific statutory
amendments which would provide you with the necessary authority.

I ask that you do so on an emergency basis considering the continued public health threat to
Hawai"i from our inability to impose and enforce effective mitigation requirements. But I also
ask that you do so because these questions will have to be answered and the necessary changes
will have to be made for Hawai"i to reopen to any great extent to air travel. Simply put, if
passengers do not feel safe coming to Hawai"i because they fear contracting COVID-19 on the
flight or in Hawai"i, or if Hawai"i residents do not feel safe with passengers getting off planes in
Hawai"i, air travel to Hawai"i will not recover leading to many consequences to include FAA and
airport-supportive revenues. The same is true throughout the country and so the necessity of safe
travel is in all respects a national one which FAA should better face now.

Considering the urgency of protecting Hawaii's current and future public health, I ask for your
specific response by no later than Wednesday, May 20th. I stand ready, together with the State of
Hawai"i and other interested parties both in Hawai"i and nationally, to work with you on
fashioning an effective solution to this critical matter.

I appreciate your prompt and full attention. Please call on me for any questions or needs.

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