UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

Issued by the Department of Transportation on September 25, 2014

NOTICE OF ACTION TAKEN -- DOCKET DOT-OST-2014-0144 ________________________________________________________________________________________________________________________________

This serves as notice to the public of the action described below, taken by the Department official indicated (no additional 

confirming order will be issued in this matter).

Applicant: POLYNESIAN LIMITED (Polynesian) 

Date Filed: August 25, 2014, as supplemented by letter dated September 23, 2014

Relief requested: Exemption under 49 USC § 40109(g) to permit the applicant to transport persons, property, and mail between 

Pago Pago, American Samoa, and the Manu’a Islands, American Samoa, beyond September 30, 2014, through October 30, 2014. 

In addition, Polynesian requests deferral of the remainder of its request, that is, to continue this service beyond October 30, 2014. 

Initial award: On August 28, 2014, we granted Polynesian authority in this Docket to serve the Pago Pago-Manu’a Islands route 

for a 30-day period (that is September 1 through September 30, 2014), and deferred action on the balance of its request (to operate 

beyond September 30 through November 30, 2014).

In its August 25 application, Polynesian states that Inter Island Airways, Inc. (IIA), a U.S. carrier, previously provided this service; 

however, IIA’s aircraft is out of service awaiting a replacement engine which will not arrive until sometime in October 2014. 

Polynesian asserts that there is currently no service between Pago Pago and the Manu’a Islands, creating severe hardships for 

residents. In this regard, Polynesian included in its application a letter from the Governor of American Samoa specifically 

supporting the request of Polynesian for an exemption until such time that a U.S. carrier can resume operations.

Supplemental submission: By letter dated September 23, 2014, Polynesian specifically requested that the Department extend its 

authority for an additional 30 days through October 30, 2014. Polynesian states that the circumstances described in its initial 

application have not changed, that it continues to meet the requirements of 49 USC § 40109(g) for grant of an emergency cabotage 

exemption, and that the Pago Pago-Manu’s Islands route remains without U.S. carrier service.

Applicant representative: Charles F. Donley II, 202-626-6840 DOT analyst: Brett Kruger, 202-366-8025

Responsive pleadings: Polynesian served its application and supplemental letter on IIA. Polynesian advised the Department that 

no party opposed its initial application or it request for a 30-day extension. As noted in our Notice of Action Taken issued on 

August 28, 2014, IIA filed an answer to Polynesian’s initial application stating that it does not object to Polynesian’s request for an 

emergency and time-limited exemption to conduct the proposed services. IIA requests that it be granted an opportunity to 

comment should Polynesian seek an extension beyond the 90-day duration specified in its initial application. 

Statutory Standards: Under 49 USC § 40109(g), we may authorize a foreign air carrier to carry commercial traffic between U.S. 

points (i.e., cabotage traffic) under limited circumstances. Specifically, we must find that the authority is required in the public 

interest; that because of an emergency created by unusual circumstances not arising in the normal course of business the traffic 

cannot be accommodated by U.S. carriers holding certificates under 49 USC § 41102; that all possible efforts have been made to 

place the traffic on U.S. carriers; and that the transportation is necessary to avoid unreasonable hardship to the traffic involved (an 

additional required finding, concerning emergency transportation during labor disputes, is not relevant here).

DISPOSITION

Action: Approved in part, remainder deferred. (See remarks below.) Action date: September 25, 2014

Effective dates of authority granted: October 1-October 30, 2014.

Basis for approval/partial grant: Taking into account the current record, including that no U.S. carrier currently conducts any intraAmerican Samoa operations, we are granting Polynesian’s request to continue its intra-American Samoa services, using its 19-seat 

Twin Otter aircraft, for an additional period of 30 days, that is, October 1, 2014, through October 30, 2014, or until five days after 

a U.S. carrier initiates intra-American Samoa passenger operations, whichever occurs first. We are deferring action on the

remaining portion of Polynesian’s application, that is, its request for authority to operate beyond October 30, 2014.
We found that this action met all the relevant criteria of 49 USC § 40109(g) for the grant of an exemption of this type, for a period 

of 30 days, and that the continued grant of this authority was required in the public interest. The absence of U.S. carrier passenger 

service while IIA’s aircraft is out of service continues to constitute an emergency created by unusual circumstances not arising in 

the normal course of business. Based on the record in this proceeding, we concluded that no U.S. carrier had aircraft available that 

could be used to conduct the operations at issue here. We also found that grant of this authority would prevent unreasonable 

hardship to the residents of American Samoa. 

As provided in 49 U.S.C. 40109(g), we will review this exemption near the end of this 30-day term to see if the unusual 

circumstances that established the need for the exemption still exist, and will be prepared to decide at that time whether the 

situation warrants extension of this authority for an additional term.

Finally, we found that the applicant was qualified to perform its proposed operations.

Except to the extent exempted/waived, this authority is subject to our standard exemption conditions (attached). We may amend, 

modify, or revoke the authority granted in this Notice at any time without hearing at our discretion.

Action taken by: Susan L. Kurland

Assistant Secretary for Aviation 

and International Affairs

An electronic version of this document is available on the World Wide Web at:

http://www.regulations.gov
Foreign Carrier Exemption Conditions

In the conduct of the operations authorized, the foreign carrier applicant(s) shall:

(1) Not conduct any operations unless it holds a currently effective authorization from its homeland for such operations, 

and it has filed a copy of such authorization with the Department;

(2) Comply with all applicable requirements of the Federal Aviation Administration, the Transportation Security 

Administration, and with all applicable U.S. Government requirements concerning security, including, but not limited 

to, 14 CFR Parts 129, 91, and 36 and 49 CFR Part 1546 or 1550, as applicable. To assure compliance with all 

applicable U.S. Government requirements concerning security, the holder shall, before commencing any new service 

(including charter flights) from a foreign airport that would be the holder’s last point of departure for the United States, 

contact its International Industry Representative (IIR) (formerly referred to as International Principal Security 

Inspector) to advise the IIR of its plans and to find out whether the Transportation Security Administration has 

determined that security is adequate to allow such airport(s) to be served;

(3) Comply with the requirements for minimum insurance coverage contained in 14 CFR Part 205, and, prior to the 

commencement of any operations under this authority, file evidence of such coverage, in the form of a completed OST 

Form 6411, with the Federal Aviation Administration’s Program Management Branch (AFS-260), Flight Standards 

Service (any changes to, or termination of, insurance also shall be filed with that office);

(4) Not operate aircraft under this authority unless it complies with operational safety requirements at least equivalent to 

Annex 6 of the Chicago Convention;

(5) Conform to the airworthiness and airman competency requirements of its Government for international air services;

(6) Except as specifically exempted or otherwise provided for in a Department Order, comply with the requirements of 14 

CFR Part 203, concerning waiver of Warsaw Convention liability limits and defenses;

(7) Agree that operations under this authority constitute a waiver of sovereign immunity, for the purposes of 28 U.S.C. 

1605(a), but only with respect to those actions or proceedings instituted against it in any court or other tribunal in the 

United States that are: (a) based on its operations in international air transportation that, according to the contract of 

carriage, include a point in the United States as a point of origin, point of destination, or agreed stopping place, or for 

which the contract of carriage was purchased in the United States; or (b) based on a claim under any international 

agreement or treaty cognizable in any court or other tribunal of the United States. In this condition, the term 

"international air transportation" means "international transportation" as defined by the Warsaw Convention, except 

that all States shall be considered to be High Contracting Parties for the purpose of this definition;

(8) Except as specifically authorized by the Department, originate or terminate all flights to/from the United States in 

its homeland;

(9) Comply with the requirements of 14 CFR Part 217, concerning the reporting of scheduled, nonscheduled, and 

charter data;

(10) If charter operations are authorized, except as otherwise provided in the applicable aviation agreement, comply 

with the Department's rules governing charters (including 14 CFR Parts 212 and 380); and

(11) Comply with such other reasonable terms, conditions, and limitations required by the public interest as may be 

prescribed by the Department, with all applicable orders or regulations of other U.S. agencies and courts, and with all 

applicable laws of the United States.

This authority shall not be effective during any period when the holder is not in compliance with the conditions 

imposed above. Moreover, this authority cannot be sold or otherwise transferred without explicit Department approval 

under Title 49 of the U.S. Code.

12/2007