Order 2013

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Served: August 22 , 2013

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C.

Issued by the Department of Transportation

on the 22 nd day of August , 201 3

Application of

MIAMI AIR INTERNATIONAL, INC.

for an exemption pursuant to 49 U.S.C. § 40109 fro m the provisions of 49 U.S.C. § 41104( c ) and 14 CFR § 212.3(l) DOCKET DOT

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ORDER GRANTING EXEMPTION

Summary

By this order, we confirm our oral action of August 20, 2013, grant ing an emergency exemption

from 49 U.S.C. § 41104(c ) and 14 CFR § 212.3(l) to Miami Air International, Inc. (“ Miami Air ”)

, to the extent necessary to permit it to engage in single

- entity charter air transportation of persons and property between certain points within the State of Alaska

, subject to conditions

.

Background

By application dated August 20, 2013

, Miami Air requested an emergency exemption from the provisions of 49 U.S.C. § 41104(c ) and 14 CFR § 212.3(l) to the extent necessary to permit it to
conduct single

- entity charter air transportation of persons and property on behalf of Celebrity Cruise Lines (“Celebrity”) , between certain points within the State of Alaska for the duration of a charter

contract from August 20, 2013

, to August 22, 2013

.

Miami Air i s a U.S. certificated air carrier with authority to conduct passenger charter operations in

all states of the United States, except for charters flights between points within the State of Alaska, a restriction imposed by 49 U.S.C. § 41104( c ) and implemented by 14 CFR § 212.3(l). 1

On August 19, 2013, a Celebrity cruise ship experienced mechanical issues in port in Ketchikan, Alaska, and stranded more than 2,000 p assengers. According to the applicant, Celebrity approached Miami Air to provide 11 revenue flights using 2 B737

- 800 aircraft to transport the stranded

1 See Order 91

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- 50 , issued October 25, 1991

. Paragraph 2 of Miami Air’s certificate explicitly states that “the holder of is not authorized to engage in air transportation between points in the State of Alaska.”

U N I T E D S

T A T E S O F A

M E R I C A D E P A R T M E N T O F T R A N S P O R T A T

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passengers to Anchorage, Alaska. Miami Air also stated that Celebrity contacted all of the Alaskan

air carriers that could perform these services without requiring an exemption

, including Alaska Airlines, Inc., informing them of Celebrity’s need for immediate transportation services. The applicant maintain s that the Alaskan carriers refused the contract f or lack of available capacity and equipment.

In support of its request, Miami Air states that given the need to evacuate over 2,000 passengers

stranded on a cruise ship in Ketchikan, Alaska, expedited relief from the Department is necessary. The applicant’s request for an exemption is limited in duration and scope and is to be performed for a single, individual customer ( Cel ebrity) on an emergency basis. Lastly, the app licant maintains that granting the requested relief is consistent with the public interest.

Decision

After careful consideration, we have decided to grant Miami Air the requested exemption from

49 U.S.C. § 41104(c) and 14 CFR § 212.3(l) to the extent ne cessary to enable it to engage in the transportation services and operating arrangements described in this order.

49 U.S.C. § 41104(c) provides that a n air carrier holding a certificate issued under 49 U.S.C. § 41102 may provide charter air transportation between places in Alaska only to the extent the Secretary decides the transportation is required by public convenience and necessity

. This statute is implemented by 14 CFR § 212.3(l), which states that a certificated air carrier may not pe rform any charter in interstate commerce within the State of Alaska. Thus, in order for Miami Air to conduct the proposed operations on behalf of Celebrity , the air carrier would require relief from the provisions of the S tatute as well as the Department’ s rules.

We have carefully reviewed the facts of this matter and find that a grant of an emergency exemption is in the public interest. The circumstances presented here are extremely unique. First, according to the applicant, the prospective single

- enti ty charter customer, Celebrity, has solicited air transportation services from other air carriers that could perform the proposed services and none of them, other than Miami Air, were prepared or interested in conducting the charter flights. 2 Second,

the flights would be conducted on behalf of a single

- entity and not held out to the public as a whole, thus, Miami Air would not be competing against other Alaskan certificated air carriers in the large aircraft charter market in open competition. Thus, we fi nd that a grant of exemption would not adversely affect competition. Third, the exemption would be limited to the duration of the contract which is not expected to extend beyond August 22, 2013.

ACCORDINGLY:

1. We confirm our oral action of August 20, 2 013, and grant Miami Air International, Inc., an exemption from 49 U.S.C. § 41104(c) and 14 CFR § 212.3(l) to the extent necessary to permit it to conduct single

- entity charter air transportation of persons and property for Celebrity Cruise Lines

, between points within the State of Alaska.

2 Importantly, we note that all of the air carriers that could perform the flights without an exemption were

served wi th a copy of the application

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2. We reserve the right to amend, modify, or revoke this authority at any time, in the public interest, without notice or hearing.

3. This exemption expires on August 23, 2013

.

4. We will serve a copy of this order on the persons listed in Attachment A.

BY:

SUSAN L. KURLAND Assistant Secretary for Aviation

and International Affairs

An electronic version of this document is available at: http://www.regulations.govAttachment A

SERVICE LIST FOR MIAMI AIR CHARTER, INC.

JAMES PROIA

CHIEF EXECUTIVE OFFICER

MIAMI AIR INTERNATIONAL INC

PO BOX 660880

MIAMI FL 3266

- 0880 PETER LYNCH AGC

- 300

ASST CHIEF COUNSEL FOR ENFORCEMENT

FEDERAL AVIATION ADMINISTRATION

800 INDEPENDENCE AVE SW

WASHINGTON DC 20591

JAMES W TELLO

LAW OFFICES OF JAMES W TELL O

1025 CONNECTICUT AVENUE NW

SUITE 1000

WASHINGTON DC 20036 MARK MAZOR

CERTIFICATION SECTION MANAGER

FAA AFS

- 900

45005 AVIATION DRIVE SUITE 131

DULLES VA 20166

MARSHALL SINICK

COUNSEL FOR ALASKA AIRLINES INC SQUIR E SANDERS LLP

1200 19TH STREET NW

SUITE 300

WASHINGTON DC 20036 OFFICE OF AIRLINE INFORMATION

DOT/RITA/BTS

1200 NEW JERSEY AVE SE

WASHINGTON DC 20590