### UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C.

Issued by the Department of Transportation on March 22 , 2013



### NOTICE OF ACTION TAKEN

-- DOCKET DOT

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- 2012

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

confirmin g order will be issued in this matter).

Applicant: ISLANDER ENTERPRISES SAMOA LTD. d/b/a SAMOA AIR ( Samoa Air )

Date Filed: November 20, 2012, as supplemented December 6, 2012 1

Relief requested: Exemption from 49 USC § 40109(g) to permit the applicant to transport persons, property

, and mail between Pago Pago International Airport, American Samoa, and the regional airports Fitiuta Airport in Ta’u and Ofu Airport located in the Manu’a Islands of American Samoa, using Bri tten Norman BN2A and Cessna 172 aircraft. Samoa Air states that grant of its request is primarily necessary to meet a critical need for reliable air transportation services required to enable the physic ians and clinical staff of the Manu' a Health System and the rural access hospital in the Manu' a Islands to provide vital medical services to

the islands' residents. In this regard, Samoa Air included in its application a letter from the Governor of American Samoa specifically supporting the request for em ergency medical transportation of passengers and/or cargo.

Samoa Air asserts that no U.S. air carrier has provided air transportation services between Pago Pago and Ofu Airport for approximately three years. It further asserts that there is a pressing ne ed to supplement the current, but highly irregular, flights offered by Inter Island Airways, Inc. (Inter Island), between Pago Pago and Fitiuta Airport on Ta’u, and states that if it is approached to conduct a flight between Pago Pago and Fitiuta Airport, it will contact Inter Island and give it the option of conducting the flight provided it can do so within a reasonable period of time in consideration of the urgent nature of the r equired transportation.

Finally, Samoa Air asserts that its proposed services will also ensure that others

, seeking non

- medical

- related air transportation between Pago Pago and the Manu'a Islands

, have a means to do so rather than being required to travel by slower surface transportation. Samoa Air requests that this autho rity be granted for a period of 30 days.

Applicant representative: Robert P. Silverberg, 202

- 944

- 3300 DOT analyst: Robert J. Finamore, 202

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- 2405

Responsive pleadings: Samoa served its application on Inter Island, a U.S. commuter air carrier that p rovides intra

- American

Samoa services . On December 5, 2012, Inter Island filed an answer stating that it does not object to Samoa Air’s request for an emergency and time

- limited (30 days) exemption to conduct the proposed services. Inter Island requests that it be granted an opportunity to comment should Samoa Air seek an extension beyond the 30

- day duration specified in its request.

Statutory Standards: Under 49 USC § 40109(g), we may authorize a foreign air carrier to carry commercial traffic betwee n 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 busines s 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

Action: Approved in part , remainder denied. (See remarks below.) Action date: March 22 , 2013

Effective dates of authority granted: March 22 , 2013

- April 21 , 2013

.

Basis for approval/partial grant: We are granting Samoa Air’s request to operate its proposed intra

- American Samoa services in

part

, specifically authorizing it to conduct services limi ted to the emergency medical transportation of passengers and/or cargo. We will grant its request for a period of 30 days, that is, March 22 , 2013, through April 21 , 2013

. W e are denying the remaining

1 In its December 6, 2012 supplemental filing in Dockets DOT

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- 019 9 and DOT

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- 2012

- 019 8 (which concerns the carrier’s request for exemption and foreign air carrier permit au thority) , Samoa Air requests that the 30

- day period of its requested cabotage authority commence no earlier than the date that the Federal Aviation Administration (FAA) issues it Part 129 Operations Specifications. We have been advised by the FAA that thi s occurred on March 14, 2013

.portion of Samoa Air ’s application, that is, its requ est for authority to transport passengers and/or cargo unrelated to emergency medical transportation

.

With respect to our action permit ting the applicant to conduct intra

- American Samoa e mergency medical transportation of passengers and/or cargo, we find 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 grant was re quired in the public interest.

American Samoa is an isolated community uniquely dependent o n air transportation

, and t he record before us indicates that the lack of air transportation services available to the residents of the Manu'a Islands n egatively impact s their ability to obtain emergency medical services

. We have determined that, i n the circumstances presented

, this situation const itutes an emergency not arising in the normal course of business. 2 The record indicates that Samoa Air’s services should provide the residents of the

Manu'a Islands , and the physicians and clinical staff of the Manu' a Health System and the rural access hospital in the Manu' a

Islands , with air transportation necessary to enhance the availability of emergency medical services to the islands' residents

. B ased on the record in this proceeding, we concluded that n o 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

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

.

In taking this action, we find that it is in the public interest to closely monitor the carrier’s operations. In this regard, we specifically put Samoa Air on notice that in any requests for subsequent extensions of this authority, we would expect to see a description of the ca rriers’ cabotage operations for the previous 30

- day period

. We expect this description includ e at a minimum the number of flights completed between U.S. points

, the number of passengers c arried on each flight, the circumstances of each flight, and a state ment as to whether Samoa Air ascertained the availability of Inter Island and gave it the option of conducting the flight within a reasonable period of time.

With respect to Samoa Air’s request that the scope of its authority encompass the transportation of other passengers and carg o as an alternative to transport by slower surface transportation

, we found, based on the record before us and in the circumstances presented

, that this portion of the applicant’s request would not address an emergency not arising in the normal course of business

under 49 USC § 40109(g) . Therefore, we deny that portion of its request.

Except to the extent exempted/waived, this autho rity 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

2 Consistent with the statements made by the applicant in its application and because the authority granted here permits cabotage operations , we will expect Samoa Air, if approached to conduct a flight covered by this exemptio n between Pago Pago and Fitiuta Airport, to ascertain the availability of service by Inter Island and to give it the option of conducting the flight provided it can do so within a reasonable period of time in consideration of the urgent nature of the requi red transportation.

### Foreign Carrier Exemption Conditio ns

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 flight s) 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 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 airworthin ess 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 Conv ention 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 stoppi ng 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

"internatio nal 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 De partment, 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 p ublic 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.

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