### BEFORE THE U.S. DEPARTMENT OFTRANSPORTATION WASHINGTON, D.C. Application of ) 

## 1 MIAMI AIR INTERNATIONAL, INC. ) 

### Docket OST

-2012- ) 

### for an emergency exemption ) 

### pursuant to 49 U.S.C. 

## 5 40109 ) 

### and 14 C.F.R. 

## $5302.302 AND 302.311. ) ) 

### APPLICATION OF MIAMI AIR INTERNATIONAL, INC. FOR AN EMERGENCY EXEMPTION Communications with respect to this document should be sent to: James Proia, CEO James W. 

### Tello MIAMI AIR INTERNATIONAL, INC. LAW OFFICES OFJAMESW. TELL0 P.O. Box 660880 1025 Connecticut Avenue, 

### NW Miami, FL 3266

-0880 Suite 1000 jprioa~~miamiair.com - 

### Washington, DC 20036 Phone: 202

-399-191 8 Fax: 202

-478

-0244 jamestello~,earthlink.net 

### [E
-MAIL RESPONSES PREFERRED] Counsel for MIAMI AIR INTERNATIONAL, INC. May 18,2012 ANSWERS TO THIS APPLICATION SHOULD BE FILED BY MAY 30,2012BEFORE THE U.S. DEPARTMENT OF TRANSPORTATION WASHINGTON,D.C. Application of 

### 1 

## 1 MIAMI AIR INTERNATIONAL, INC. ) Docket OST-2012- for an emergency exemption 

## 1 ) pursuant to 49 U.S.C. 

## 5 40109 

### 1 and 14 C.F.R. 

## 55 302.302 and 302.311. ) 

### May 18,2012 APPLICATION OF MIAMI AIR INTERNATIONAL,INC. FOR AN EMERGENCYEXEMPTION


### Miami Air International, Inc. ("Miami Air"), pursuant to 49 U.S.C. Section40109 and 14 C.F.R. Sections 302.302 and 302.311, hereby applies for an emergencyexemption from the provisionsof 49 U.S.C. Section 41 104(c)and 14 C.F.R. Section 212.3(1)to engage in single entity charter air transportation ofpersons and property for the Shell Offshore, Inc. ("Shell") between certain points within the State of Alaska for the duration of a certain charter contract from July 1,2012 to October 3 1,2012, 

### and for other relief. Miami Air is seeking emergency relieffrom the Department because the partiesto this charter service have only recently concluded their agreement, and the charter service is scheduled to commence July 1,2012, only a 

### few weeks from now. Given the need to make the necessary arrangements to put this charter in place, Miami Air is seeking aApplication ofMiami Air International, Inc. Docket 

### OST-2012- Page 2 of 

### 6 

### shortened answer date for this Application, and expedited relief from the Department. As we will show, this proposed service is very specialized, tailored for a large oil company's needs this summer and fall, and highly distinguishable from the kinds of multiple entry, and permanent, services intended for sale to the general public in Alaska. As such, it is consistent withthe public interest, a finding on which the Department may and should issue an 

### exemption to permit its operation.
Miami Air states the following as the basis for its application:
This summer, Shell will be engaged in oil exploration activities at remote offshore sites in the North Slope off of Northern Alaska. In order to engage in these activities, Shell needs to transport workers between Anchorage and Deadhorse and Barrow, Alaska, where these workers will then travel by connecting helicopter services to their actual work sites. Given the need to transport workers to and from these sites, and to hold the aircraft on the ground while these transfers to and from helicopters are made, Shell requires dedicated transport services that can be offered on a flexible basis, in order to accommodate irregular work schedules, as well as changes in weather and other factors.

1. 

### When assessing itstransportation needs forthis summer and fall, Shell contacted a number of Alaskan and other passenger air carriers to let them know of Shell's need for summer lift, and the specific requirements of the proposed program. Shell requested a series of charter flights 

### Anchorage-Barrow-Deadhorse-Deadhorse-Barrow-Anchorage

### Application ofMiami AirInternational, Inc. Docket OST-2012- Page 

### 3 

### of 

### 6 comprising up to four flights per week for the summer season1 with the following characteristics: (a) Ajet aircraft dedicated for that purpose to be based in Anchorage for the duration of the contract; (b) A minimum of two complete crews based in Alaska for the duration ofthe contract, including six pilots, ten flight attendants and two mechanics (rotated on a monthly basis); and, (d) Twenty-four-hour, on

-call service. The highly specialized nature of the operation by definition limits the number of carriers able to provide the lift that is required, as does the need for dedicated aircraft and for
crews to be trained in accordance with Shell's own safety program. The possible need for extended and unpredictable hold times on the ground also made this program unsuitable for scheduled operators.
2. No Alaskan carrier could fill all of these specific requirements. However - subject to grant of this application 

### -- Miami Air offeredjust such a service with its B737- 

### 400jet aircraft. (Northern Aviation Services, Inc., an affiliate of Northern Air Cargo, Inc., a certificated cargo carrier based in Alaska that bctionsas agent for Shell 

### in this transaction, is to provide to Shell certain ancillary services such as ground handling, landing fees, fueI, catering, crew per diem, crew lodging, taxes, etc. A number of the actions attributed here to Shell were accomplished by NAS on Shell's behalf.) 

## ' The precise timing ofthe program will be driven by weather (and ice) conditions on the North Slope. The program is anticipated to start on or about July 1,2012 and may extend to November 30,2012,depending on conditions.

### Application of Miami Air International, Inc. Docket OST-2012- 

### Page 4 

### of 6
3.Miami Air is a certificated charter air carrier with authority to operate in all states ofthe United States, except for charters between points within the State of Alaska,
a restriction imposed by 49 U.S.C. Section 41 104(c)and implemented by14 C.F.R. Section 212.3(1). This structure was enacted as a part ofthe Airline Deregulation Act of 1978 toprotect Alaskan carriers from wholesale authorization of permanent authority for intra-Alaska routes and charter operations. In the context ofmultiple-entry authorization,
a specific finding of "required by the public convenience and necessity"is the protectionist standard for permanent, certificated authority.2 It is not a standard to be found in the exemption provisions of the same Airline Deregulation Act. It does not apply to temporary needs for a particular kind of service between specific points for a limited duration in time.
4. Section 40109 of the Transportation Code was revised and revitalized in the
same statue that enacted the restrictive Alaskan language, changing the standard from

"undue burden"to "consistent with the public interest," a much more liberal standard aligned with the policy thrust ofthe new law for charter operations outside the State of

See MarkAir, Inc. v. Civil Aeronautics Board, 744 F.2d 1383 (1984), reversing Alaskan lnterstate Charter

-Entry Proceeding, CAB Order 83

-11

-5 (November 1,1983).

In doing so, the Senate report on the bill that would become law observed, "While current FA Act does have a section 416 allowing exemption from the act the test for the Board's use ofthe exemption power is far too rigid. In practice it has been limited to circumstances where no interested party

-usually some competitor -has expressed an objection to a proposed action 

### -- generally limiting its use to only the mostminor and innocuous requests

## . . . And, the new exemption provisions' decisional criteria -a broad public interest test - is a vast improvement over current law which analysesthe need for exemption by focusing on the burden enforcement would place on the air carrier, and only incidentally includes public need. 

### . ." S. Report 95

-631, p. 85

-86 (February 6, 1978).

### Application 

### ofMiami Air International, Inc. Docket OST-2012- Page 

### 5 of 6

5. Thus, the standard for an exemption to provide authority for a limited period of time is not the same as that required for permanent authority. Miami Air, in this application, seeks only the former and not the latter. The "consistent with the public interest"standard for the exemption power ofthe Department is the more liberal one applicable generally. The "public interest"has consistently been construed by the Department to increase access by the pubic (including its businesses) to the varying and special kinds of services that those businesses see their requirements to be.



### 6. Finally, in order to accommodate the start-up of this service need by Shell on July 1,2012, we request that that the answer date be accelerated to May 30,2012, so as to allow time for the Department to fully consider this request in time for issuance of authority permitting that operational start.
Conclusion. This is not an application to operate a service that will then be held out to the public generally and it is sharply limited in scope and duration. It comprises, in its nature and extent, a private service carefully and individually created for a single, individual customer. In that way it is also highly distinguishable from other applications previously received by the Department that were intended to be held out to all. Given the temporary, immediate and unique characteristics of the service needs ofShell this summer, we submit that Miami Air's proposal easily fits the criteria for 

### an exemption that is "consistent with the public interest."Section 40109(c). We urge the speedy grant of this application for exemption for this limited contract for specialized, single

-entityApplication ofMiami Air International, Inc. Docket 

### OST-2012- Page 

### 6 of

### 6 

### charter flights so as tofacilitate Shell's operations - 

### one ofthe mainstays ofthe Alaskan economy. WHEREFORE, Miami Air International, Inc. requests that the Department grant this Application as consistent with the public interest to the extent necessary for it to 

## - perform the single entity charter operations described. Respectfully submitted,
&es W. Tello LAW OFFICES OFJAMES W. TELL0 Counsel for MIAMI AIR INTERNATIONAL, INC. Verification: Pursuant to Title 18 United States Code Section 1001, I, Michael Hackert in my individual capacity and asthe authorizedrepresentative of Miami Air InternationaI, Inc., make this verification on information and beliefthat I have not in any manner knowingly and willfully falsified, concealed or failed to disclose any material fact or made any false, fictitious, or fraudulent statement or knowingly used any documents which contain such statements in 

### connection with the preparation, filing or prosecution ofthe pleading. I understand that an 

### individual who isfound to have violated the provisions of 18 U.S.C. 1001 shall be fined or imprisoned not more than five years, or both. Michael Hackert, Vice President, Sales and MarketingCERTIFICATE OF SERVICE I, JamesW.Tello, hereby certify that I am causing the forgoing Application of Miami Air International, Inc., for an Emergency Exemption to be served by first class mail postage prepaid on the certificated air carriers listed on the attached schedule provided by the U.S. Department of Transportation for that purpose. In addition, I am serving the following air carriers by e-mail at the addresses noted below: Alaska Airlines, Inc. msinick@ssd.com Peninsula Airways, Inc, recohn@hhlaw.con
James W. TelloU.S. Certificated Air Carriers (last updated:January 1, 2012)

AirExcursions, LLC Mike Loverink Owner P.O. Box 16 Gustaws AK 99826 Alaska CentralExpress, Inc. Donald Swortwood CEO 5901 Lockheed Ave Anchorage AK 99502 Alaska Seaplane Service, LLC Craig Loken General 8995 Yundunkin Dr. Juneau AK 99801 Manager Arctic Circle Air Service, Inc. dmla Robert Hajdukovich President 5345 Airport Industrial Road Fairbanks AK 99709 ERA Alaska dmla Frontier Alaska Ryan Air, Inc. Wilfred Ryan President 5701 Silverado Way, Unit L Anchorage AK 99518 BeringAir, Inc. James Rowe President Box 1650 Nome AK 99762 BidzyTaHot' Aana, Inc. Brian Mart~n President P.O. Box 29 Mcgrath AK 99627 d/b/a TananaAir Service F.S. Air Service, Inc. Frederick Lee Mason Pres~dent 6500 Carl Brady Dr., Suite 109A Anchorage AK 99502 FlightAlaska, Inc. Timothy S. Vottis President and 1515 East Tudor Rd., Suite 4 Anchorage AK 99507 d/b/a YuteAir Alaska Gen.Manager Forty MileAir, Ltd. Leif Wilson President Box 539 Tok AK 99780 Frontier FlyingService, Inc. dlbla Robert Hajdukovich Chief 5245 Airport Industrial Rd. Fairbanks AK 99709 Frontier Alaska Executive Officer

Grant Aviation, Inc. Bruce McGlasson President Box 92200 Anchorage AK 99509

Hageland Aviation Services, Inc. dmla James Tweto President Box 220610 Anchorage AK 99522 Frontier Alaska Homer Air, Inc. John Dana Pruhs President 2190 Kachemak Bay Drive Homer AK 99603U.S. Certificated Air Carriers (last updated:January 1, 2012) tliamna Air Taxi, Inc. Timothy J. La Porte President Box 109 Iliamna AK 99606 Inland Aviation Services, Inc. Stephen L. Hill President P.O. Box 244 Aniak AK 99557 Katmai Air, LLC dlbla Katmai Air Raymond F. Petersen President 4 125Aircraft Drive Anchorage AK 99502 Lynden Air Cargo, LLC Judy McKenzie President 6441 South Airpark Place Anchorage AK 99502 Northern Air Cargo, Inc. David W. Karp CEO 3900 Old INT'L Airport Rd. Anchorage AK 99502 Pacific Airways, Inc. Stephen Montanus President P.O. Box 5158 Ketchikan AK 99901 Peninsula Airways, Inc. Orin D. Seybert CEO and 6100 Boeing Avenue Anchorage AK 99502 d/b/a Penair Chairman
PMAir, LLC Sessoms Marcus President 1515 Tongass Ave. Ketchikan AK 99901 dlbla Promech Air Redemption, lnc. Robert Stanford President P.O. Box 125 Kodiak AK 99615 dlbla Island Air Service Seaport Airlines, Inc. d/b/a Robert McKinney President 8421 Livingston Way Juneau AK 99801 Wingsof Alaska Servant Air, Inc. Wes Osowski President 1619 Airport Way, Box 3 Kodiak AK 99615 Smokey Bay Air, Inc. Claire A. McCann President 2100 Kachemak Drive Homer AK 99603 Spernak Airways, Inc. MichaelB. Spemak President 1707 Memll Field Drive Anchorage AK 99501 TatondukOutlitters, Limited Robert Everts President 5525 Airport Industrial RD., P.O. Fairbanks AK 99709 dlbla Everts Air Alaska Box 6 1680 d/b/a Everts Air Cargo VentureTravel, LLC Brian Salazar President 4085 Tongass Ave. Ketchikan AK 99901 d/b/a Taquan AirU.S. Certificated Air Carriers (last updated:January 1, 2012) Warbelow's Air Ventures, Inc. Arthur Warbelow President Box 60649,3758 S. University Fairbanks AK 99709 Avenue Wright Air Service, Inc. Robert Bursiel Prestdent Box 60142, Fairbanks Int'l Airport Fairbanks AK 99706