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BEFORE THE

DEPARTMENT OF TRANSPORTATION

WASHINGTON, D.C.

ESSENTIAL AIR SERVICE TO 

KAKE, ALASKA

Pursuant to 49 U.S.C. § 41731 et seq.

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Docket DOT-OST-2008-0217

MOTION OF KALININ AVIATION, LLC D/B/A ALASKA SEAPLANES TO DISMISS 

PROPOSAL OF HARRIS AIR SERVICE, INC. TO PROVIDE 

ESSENTIAL AIR SERVICE AT KAKE, ALASKA

Communications with respect to this document should be addressed to:

Kent Craford 

KALININ AVIATION LLC

1873 Shell Simmons Dr.

Suite 110

Juneau, AK 99801

Robert E. Cohn

Patrick R. Rizzi

HOGAN LOVELLS US LLP

Columbia Square

555 Thirteenth Street, NW

Washington, DC 20004

+1 202 637 4999/5659

robert.cohn@hoganlovells.com

patrick.rizzi@hoganlovells.com

Counsel for Kalinin Aviation, LLC

d/b/a Alaska Seaplanes

June 3, 2014
\\DC - 042333/000001 - 5685908 v2 

BEFORE THE

DEPARTMENT OF TRANSPORTATION

WASHINGTON, D.C.

ESSENTIAL AIR SERVICE TO 

KAKE, ALASKA

Pursuant to 49 U.S.C. § 41731 et seq.

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)

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Docket DOT-OST-2008-0217

June 3, 2014

MOTION OF KALININ AVIATION, LLC D/B/A ALASKA SEAPLANES TO DISMISS 

PROPOSAL OF HARRIS AIR SERVICE, INC. TO PROVIDE 

ESSENTIAL AIR SERVICE AT KAKE, ALASKA

Kalinin Aviation, LLC d/b/a Alaska Seaplanes (“Alaska Seaplanes”) moves 

to dismiss the proposal of Harris Air Service, Inc. (“Harris Air”) to provide 

essential air service (“EAS”) at Kake, Alaska. Harris Air is not legally eligible or 

qualified to provide Kake EAS service.

Background.

Harris Air has submitted a proposal to provide subsidized EAS between

Kake and Juneau with 14 weekly flights (2x daily) during the peak season and 7 

weekly flights (1x daily) during the off-peak season. Harris Air Proposal, at 4 

(April 28, 2014). Although it claims to be “a Part 135 Commuter Air Operator” 

under the FAA’s regulations,1 Harris Air does not have Commuter Air Carrier 

Authorization from the U.S. Department of Transportation. Indeed, Harris Air 

recently withdrew its application for DOT commuter authority, and the 

Department dismissed its application on May 6, 2014 (after Harris Air’s Kake 

proposal was submitted). See DOT Order 2014-5-2. For the reasons discussed 

in detail below, because Harris Air does not hold commuter or certificate authority 

from the Department to operate scheduled service, Harris Air is not qualified or 

 

1 Harris Air Proposal, at 1.
Motion of Kalilin Aviation, LLC

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licensed to provide the daily EAS to Kake. The Department should promptly 

dismiss Harris Air’s proposal. 

Discussion.

1. 49 U.S.C. § 41733 governs the selection of carriers to provide EAS 

for compensation. Section 41732(a) defines “basic essential air service” as 

“scheduled air transportation of passengers and cargo....” Section 41733(c) 

limits applications for the provision of subsidized basic essential air service to 

“air carriers”:

(1) If the Secretary decides that basic essential air service will not be 

provided to an eligible place without compensation, the Secretary 

shall provide notice that an air carrier may apply to provide basic

essential air service to the place for compensation under this 

section. (emphasis added)

The term “air carrier” is defined in 49 U.S.C. § 40102(a)(2) to mean “a 

citizen of the United States undertaking by any means, directly or indirectly, to 

provide air transportation.” (emphasis added) The term “air transportation” in 

turn is defined in 49 U.S.C. § 40102(a)(5) to mean “foreign air transportation, 

interstate air transportation, or the transportation of mail by aircraft.” “Interstate 

air transportation” does not include “intrastate air transportation”. In fact, the 

Aviation Act expressly differentiates between “air carriers” and “intrastate air 

carriers” (see, for example, Section 44902(a): “The [DOT] shall prescribe 

regulations requiring an air carrier, intrastate carrier, or foreign air carrier to 

refuse to transport...”). The EAS compensation provision (Section 41733(a),(c))

refers only to “air carrier” and makes no mention of “intrastate carrier”. And, for 

good reason. The purpose of EAS is to provide access to small communities 

(especially communities in Alaska) to the national air transportation system. See
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Section 40101(a) requiring the DOT to consider as being in the public interest 

“maintaining a complete and convenient system of continuous scheduled 

interstate air transportation for small communities and isolated areas with direct 

financial assistance from the United States Government when appropriate.” 

(emphasis added). Moreover, the Order inviting proposals for EAS at Kake 

specifically requested applications from “air carriers”. DOT Order 2014-3-15, at 3 

(ordering paragraph 1).

Harris Air has not been issued authority by the DOT to provide air 

transportation as an air carrier and is not eligible under the statute to compete for 

EAS compensation at Kake.

2. Under Part 298, a commuter air carrier is “an air carrier as 

established by § 298.3(b) that carries passengers on at least five round trips per 

week on at least one route between two or more points according to its published 

flight schedules that specify the times, days of the week, and places between 

which those flights are performed.” 14 C.F.R. § 298.2. Or, as the Department’s 

Information Packet on How to Become a Commuter Air Carrier states, “commuter 

air carrier is defined under section 298.2(e) of the Department’s Regulations as 

an air carrier which (1) operates “small aircraft,” i.e., those with an original design 

capacity of 60 or fewer seats, and (2) carries passengers on at least five roundtrip flights per week on at least one route between two or more points according 

to published flight schedules which specify the times, days of the week, and 

places between which they are performed.”2 

 

2 DOT Information Packet on How to Become a Commuter Air Carrier, at 2 (September 

2012). 
Motion of Kalilin Aviation, LLC

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Having interstate scheduled commuter or certificate authority is a 

prerequisite for providing EAS as discussed in Section (1) above. Carriers 

lacking such authority have their proposals rejected. For example, Sovereign Air 

did not have the requisite authority from the Department to provide scheduled 

passenger service, and the Department rejected its proposal for EAS at Devil’s 

Lake and Jamestown, North Dakota, on that ground alone, see DOT Order 2014-

1-19, at 5, as it did with Sovereign’s EAS bid for service to select communities in 

Michigan, Minnesota, and Wisconsin, see DOT Order 2012-9-11, at 5. 

And, in this case, Harris Air is proposing to serve Kake with 7-14 weekly 

frequencies, depending on the season, but has not received DOT commuter 

authority. As noted above, the Department dismissed Harris Air’s application for 

that authority just last month, and Harris Air remains (as described by the 

Department) “an on-demand air taxi serving the Southeastern Alaska area and 

operating under 14 CFR Part 298 of the Department’s regulations and Part 

135”. DOT Order 2014-3-2, at 1 (emphasis added).

Although Harris Air might claim that its EAS proposal involves intrastate 

transportation and thus Part 298 is not implicated, that argument fails for three 

reasons. 

First, as pointed out above, the statute does not authorize the Department 

to compensate an “intrastate carrier” to provide basic essential air 

transportation.

3

 

3

Although the Department has awarded EAS to Harris Air for Port Alexander, Alaska, that 

was for a frequency of less than 5 times per week, and there were no competing proposals from 

certificated or commuter air carriers. 
Motion of Kalilin Aviation, LLC

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Second, Harris Air’s proposed Kake service would transport more than a 

de minimis volume of passengers or property moving as part of a continuous 

journey to/from points outside of Alaska, and thus Part 298 applies. See 14 

C.F.R. §§ 298.1, 298.2, and footnote 1 thereto. Indeed, Harris Air confirms as 

much by highlighting that its proposal to serve Juneau from Kake would 

“provid[e] access to the major airlines route structure” and “the ability to make 

connections and interline arrangements” with “a schedule [created] to benefit 

those needing access to major airline connections out of Juneau.” Harris Air 

Proposal, at 1, 4. In fact, FAA Guidance points out that “[i]ntrastate operators 

cannot participate in interline agreements with air carrier certificate holders or 

carry mail.” FAA Order 8900.1, CHG 165, Para. 3-3611 (July 19, 2011). As 

noted above, Harris Air touts interline arrangements in its proposal. Moreover, 

EAS at Kake has historically involved the carriage of mail. 

Third, the Department has similarly confirmed the point just a few months 

ago, describing Harris Air as an “on-demand air taxi . . . operating under 14 

CFR Part 298.” DOT Order 2014-3-2, at 1 (emphasis added).

Accordingly, Harris Air is not eligible or qualified to provide EAS at Kake. 

We urge the Department promptly to dismiss Harris Air’s proposal. 
Motion of Kalilin Aviation, LLC

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Respectfully submitted,

______________________________________

Robert E. Cohn

Patrick R. Rizzi

HOGAN LOVELLS US LLP

555 Thirteenth Street, NW

Washington, DC 20004

+1 202 637 4999/5659

Counsel for

KALILIN AVIATION, LLC 
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CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Motion of Kalinin Aviation has 

been served this 3rd day of June 2014, upon each of the following addressees:

scott@harrisair.com

hank@MTCWorld.com

kevin.schlemmer@dot.gov

tim@seaportair.com

citymanager@cityofkake.org

paul.khera@alaska.gov

rich.sewell@alaska.gov

 

Jonathan Echmalian