### UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C.

Issued by the Department of Transportation on March 26 , 201 5



### 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

confirmin g order will be issued in this matter).

Applicant: POLYNESIAN LIMITED ( Polynesian)

Date Filed: February 5 , 201 5 , as supplemented by letter dated March 13, 2015

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 March 30, 201 5

.

Initial a ward: On February 26 , 201 5 , we granted Polynesian aut hority in this Docket to serve the Pago Pago

- Manu’a Islands route

for a 30

- day period (that is March 1 through March 30, 201 5 ), and deferred action on the balance of its February 5, 2015, request
to operate for a six

- month period beginning March 1 , 201 5

.

In its February 5 , 201 5 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 can resume operations.

Supplemental submission: By letter dated March 13 , 201 5 , Polynesian specifically requested that the Department extend its authority fo r an additional 30 days . Polynesian states that the circumstances described in its initial appl ication 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 representative: Charl es F. Donley II, 202

- 626

- 6840 DOT analyst: David R. Christofano , 202

- 366

- 0584

Responsive pleadings: Polynesian served its application on IIA; Hawaiian Airlines, Inc.; United Airlines, Inc.; and the National Air Carrier Association. Each party in dicated 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 ., cabotage traffic) under limit ed 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. carri ers 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 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: March 26 , 201 5

Effect ive dates of authority granted: March 31, 201 5

- April 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, March 3 1, 201 5

, through April 29 , 201 5 , or until five days after a U.S. carrier initiates intra

- American Samoa passenger operations, whichever occurs firs t

. W e are deferring action on the remaining portion of Polynesian’s application, that is, its request for authority to operate beyond April 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 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 proceeding, 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 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 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 Principa l 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 (AF S

- 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 t he 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 acti ons 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 po int 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 Un ited 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 definit ion;

(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

char ter 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 shal l 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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