### UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C.

Issued by the Department of Transportation on December 30 , 2014



### NOTICE OF ACTION TAKEN

-- DOCKET DOT

- OST

- 201 4

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____ ____________________________________________________________________________________________________________________________ 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: November 17 , 2014 , as supplemented by letter dated December 17 , 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, for 30 days beyond December 30, 2014

.

Initial a ward: On November 26 , 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 December 1 through December 30, 2014), and deferred action on the balance of its request (to operate beyond December 30 through March 1 , 201 5 ).

In its November 17, 2014 application, Polynesian state s that Inter Island Airways, Inc. (IIA), a U.S. carrier, previously provided this service; however, IIA’s aircraft remains out of service awaiting a replacement engine . Polynesian further states that it initially

believed IIA would receive the engin e in October 2014 but understands the engine has not arrived and it is un clear when IIA’s

aircraft will return to service. 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 o f American Samoa specifically supporting the request of Polynesian for an exemption until such time that a U.S. carrier c an resume operations.

Supplemental submission: By letter dated December 17 , 2014, Polynesian specifically requested that the Department extend its authority fo r an additional 30 days . Polynesian states that the circumstances des cribed 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 Pa go Pago

- Manu’s Islands route remains without U.S. carrier service.

Applicant r epresentative: Charl es F. Donley II, 202

- 626

- 6840 DOT analyst: David R. Christofano , 202

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- 0584

Responsive pleadings: Polynesian served its application on IIA; Hawaiian Airlines, Inc.; United Airlines, Inc.; and the National

Air Carrier Association. Each party indicated that it had no comment or did not oppose the g ranting of a 30

- day extension.

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

. points ( i.e ., cab otage 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 traf fic

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 in volved (an

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

DISPOSITION

Action: Approved in part , remainder deferred . (See remarks below.) Action date: December 30 , 2014

Effect ive dates of authority granted: December 31, 2014

- January 29 , 201 5

.

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, December 3 1, 201 4

, through January 29 , 201 5 , or until five days

after a U.S. carrier initiates intra

- Am erican Samoa passenger operations, whichever occurs first

. W e are deferring action on the remaining portion of Polynesian’s application, that is, its request for authority to operate beyond January 29 , 201 5

.

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 passengerservice while IIA’s aircr aft 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 proceeding, we concluded that no U.S. carrier had aircraft available that

could be used t o 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 extension 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 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

Administratio n, 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 con cerning 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) (form erly 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 wi th 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 Admi nistration’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 requir ements 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 Depa rtment 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.

16 05(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, in clude 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 cognizabl e 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 Contracti ng 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 repo rting 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

u nder Title 49 of the U.S. Code.

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