BOUTIQUE AIR

548 Market Street

San Francisco, CA

t. 415.449.0505

f. 415.738.7671

This is a Petition for Reconsideration of Order 2013­5­5, issued by the Department

of Transportation on May 5th, 2013.

Background

On December 12, 2012 the Department of Transportation (the Department) issued Order

2012­12­4 requesting proposals to provide Essential Air Service (EAS) to Carlsbad, NM. The

Department received timely proposals from Pacific Wings d/b/a New Mexico Airlines, Boutique

Air, and Sovereign Air. The Department then solicited the community of Carlsbad for comments.

The Honorable Mayor Dale Janway of Carlsbad formed an Air Service Committee (the

Committee) to make a recommendation to the DOT, among other tasks. By letter dated

February 7th, 2013 the Committee recommended Boutique Air by majority consent. Specifically,

they requested Option #1 and made clear that Option #3 was unacceptable. The Committee

also made abundantly clear their need to have pressurized aircraft.

By email dated February 8th, 2013 Dennis DeVany (Chief, Essential Air Service Division) notified

the Committee that the Department would not consider Option #1 or Option #2, as they were not

responsive to the RFP. Mr. DeVany gave the community until February 20th to choose between

Boutique Air’s Option #3 or Pacific Wings.

By letter dated February 20th, 2013 the Committee responded to Mr. DeVany’s email graciously

forgoing their minimum guarantee and proposing a compromise of Boutique Air’s Option #2.

They again reiterated their need for service in a pressurized aircraft. Mayor Janway also

responded to Mr. DeVany’s email by letter dated February 20th. In his letter he went to great

lengths to explain why pressurized aircraft is necessary for Carlsbad (besides being a statutory

requirement). He also supported the Committee’s decision to compromise with Option #2.

In addition to letters of support for both Boutique Air and the incumbent from the community at

large, the Carlsbad Chamber of Commerce also wrote to support Boutique Air. They, too, noted

the importance of pressurized aircraft in their decision.

On May 6th, 2013, after over ten weeks of deliberation, the Department of Transportation finally

issued Order 2013­5­5 reselecting Pacific Wings to provide Essential Air Service (EAS) for

Carlsbad, NM.
BOUTIQUE AIR

548 Market Street

San Francisco, CA

t. 415.449.0505

f. 415.738.7671

Service With Pressurized Aircraft

49 U.S.C. §41732 states that Basic Essential Air Service shall include “service provided by

pressurized aircraft when the service is provided by aircraft that regularly fly above 8,000 feet in

altitude.”

While this point was brought up in almost every single correspondence to the Department, it

goes unaddressed in Order 2013­5­5.

It is not possible to fly this route on a regular basis below 8,000 feet and Pacific Wings is no

exception. The Albuquerque airport has an elevation of 5,355 feet, leaving a mere 2,645 feet

above ground that the aircraft can fly. Further, there are no IFR routings that would permit this

route to be flown at less than 9,000 feet. While the weather in New Mexico is generally nice,

VFR­only flying does not provide reliable scheduled service.

Pacific Wings must abide by the same rules as all other air carriers and the FAA data that we

have retrieved clearly indicates that they are regularly flying well above 8,000 feet. In fact the data

shows that on average, Pacific Wings flights between Carlsbad and Albuquerque reach an

1

altitude of 11,808 feet. Furthermore, Pacific Wings flights average 45 minutes and 31 seconds

above 8,000 feet. In other words, Pacific Wings is regularly flying far above the 8,000 threshold.

We would note that this is not “new matter” as described under 14 C.F.R. § 302.14. As

mentioned above, this is an argument that the city brought up on multiple occasions. We are

providing additional documentation that was available to the Department during their original ten

week deliberation simply for their convenience. We did not previously submit this data because

we understood the Department has access to it, as the FAA is a part of the Department.

Furthermore, we felt then, and continue to feel, that it is not the responsibility of bidding carriers

or the community to ensure that awards are issued in compliance with the statutes governing

EAS, whatever research that may require.

We do not know why the Department did not consider this information in their original order, but

regardless, the data invariably shows that the current service is provided by aircraft that regularly

fly above 8,000 feet in altitude, thereby guaranteeing the community service provided by

pressurized aircraft.

For this reason we request that the Department set aside Order 2013­5­5 and issue a new order

1 For our analysis of Pacific Wings flights we used data collected by the United States FAA.
BOUTIQUE AIR

548 Market Street

San Francisco, CA

t. 415.449.0505

f. 415.738.7671

awarding the contract to Boutique Air, the only certificated carrier who bid service with

pressurized aircraft. Failing this, we ask the Department to provide a detailed reason for why

they feel the statute does not apply in this case.

Minimum Frequencies

While this explanation was included in our original bid, no attempt to address any flaws in our

reasoning was presented in Order 2013­5­5, so we will again state our case for returning

Carlsbad to it’s appropriate minimum level of service.

Carlsbad’s first Essential Air Service (EAS) determination was given in Order 84­10­10. That

order calls for a minimum service level of 54 inbound and 54 outbound seats when the

community is served with aircraft that have fewer than 15 seats.

Furthermore, while 47 U.S.C. 41733(e) allows the Secretary to review and adjust the level of

service at EAS communities, it specifically prohibits lowering the level of service below the

original determination ­ in this case, the determination set by Order 84­10­10.

As such, it is our opinion that Carlsbad, NM is entitled to, and should receive, a level of service

commensurate with its original determination.

For this reason we request that the Department set aside Order 2013­5­5 and issue a new order

awarding the contract to Boutique Air, specifically for Option #1. Failing this, we ask the

Department to provide a detailed reason for why they feel the statute does not apply in this case.

Please note that sequestration and budget cuts would not be a compelling reason, as those cuts

should not be disproportionately borne by Carlsbad.

Sincerely,

Shawn Simpson

CEO

Boutique Air
BOUTIQUE AIR

548 Market Street

San Francisco, CA

t. 415.449.0505

f. 415.738.7671

Addendum: Flying between Carlsbad and Albuquerque New Mexico

The safest and most comfortable routing of a flight between Carlsbad New Mexico and

Albuquerque NM is accomplished utilizing IFR (Instrument Flight Rules) routing. In order to

comply with the minimum safe altitudes for terrain avoidance while also maintaining reliable

communication and navigation radio signals a flight between these city pairs will realistically have

to fly no lower than 10,000 feet. These minimum altitudes are required in order to ensure that

aircraft are at all times safely above all surrounding terrain, and provide the aircraft with

continuous ability to communicate with Air Traffic Control (ATC). A pressurized aircraft is the

only type of aircraft that can provided the legally required cabin pressure to safely fly between

these cities without requiring the pilots and passengers to wear oxygen masks.

This safety issue is particularly relevant for any flights conducted at night. It is a well established

fact that is regularly emphasized by the FAA that if flying at night and above 5,000 feet pilots

should consider using supplemental oxygen as night vision is noticeably impacted due to lack of

oxygen. Being that any flight conducted between these two cities will always be above 5,000 feet

and ideally above 10,000 the pilots and passengers should always have available and be using

supplemental oxygen unless they are in a pressurized aircraft.

Bruce Phillips

Chief Pilot

Boutique Air