### 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

- 201 4

- 0144

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

confir ming 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 rem ainder of its request, that is, to continue this service beyond October 30, 2014.

Initial a ward: On August 28, 2014, we granted Polynesian aut hority 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 I sland 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 servic e 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 unt il 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. Polynesia n 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 cabot age 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 tha t 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 requ est 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 S tandards: 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

intere st; 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 t o 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

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

Effective dates of authority granted: October 1

- October 30 , 201 4

.

Basis for approval/partial grant: Taking into account the current record, including that no U.S. carrier currently conducts any intra

American Samoa operations, w e are granting Polynesian’s request to continue its intra

- American Samoa services , using its 19

- seat Twin Otter aircraft, for a n 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

. W e are deferring action on the remaining portion of Polynesian’s application, that is, its request for au thority to operate beyond October 30, 2014

.W e 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 re quired 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. B ased on the record in this proc eeding, we concluded that no U.S. carrier had aircraft available that could be used to conduct the operation s 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 ex tension of this authority for an additional term.

Finally, we found that the applicant was qualified to perform its proposed operation s

.

Except to the extent exempted/waived, this authority is subject to our standa rd 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 appl icant(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 th e 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 I IR 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 c hanges 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 i t 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 te rm "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 author ized 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 re quired 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 w hen 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.

1 2 /200 7