BEFORE THE

U.S. DEPARTMENT OF TRANSPORTATION

WASIDNGTON, D.C.

Application of

for an emergency exemption

pursuant to 49 U.S.C. ~ 40109

and 14 C.F.R. ~~302.302 AND 302.311.

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MIAMI AIR INTERNATIONAL, INC. )

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Docket OST_' '2..0/3- 0 15-7

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APPLICATION OF

MIAMI Am INTERNATIONAL, INC.

FOR AN EMERGENCY EXEMPTION.

Communications with respectto this document should be sent to:

James Proia, CEO

MIAMI AIR INTERNATIONAL, INC.

P.O. Box 660880

Miami, FL 3266-0880

jprioa@miamiair.com

August 20,2013

James W. Tello

LAW OFFICES OF JAMES W. TELLO

1025 Connecticut Avenue, NW

Suite 1000

Washington, DC 20036

Phone: 202-399-1918

Fax: 202-478-0244

jamestello@earthlink.net

[E-MAIL RESPONSES PREFERRED]

Counsel for

MIAMI AIR INTERNATIONAL, INC.

ANSWERS TO THIS APPLICATION SHOULD BE FILED BY AUGUST 20. 2013
BEFORE THE

U.S. DEPARTMENT OF TRANSPORTATION

WASHINGTON, D.C.

Application of

for an emergency exemption

pursuant to 49 U.S.C.1l40109

and 14 C.F.R. 111l302.J02and 302.311.

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MIAMI AIR INTERNATIONAL, INC. )

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August 20, 2013

Docket;

APPLICATION OF

MIAMI AIR INTERNATIONAL, INC.

FORAN EMERGENCY EXEMPTION

Miami Air International, Inc. ("Miami Air"), pursuant to 49 U.S.C. Section 40109

and 14 C.F.R. Sections 302.302 and 302.311, hereby applies for an emergency exemption

from the provisions of 49 U.S.C. Section 411 04(c) and 14 C.F.R. Section 212.3(1) to

engage in single entity charter air transportation of persons and property for the Celebrity

Cruise Lines ("Celebrity") between certain points within the State of Alaska for the

duration of a certain charter contract from August 20, 2013 to August 22, 2013 and for

other relief.

Miami Air is seeking emergency relief from the Department because the parties to

this charter service have only recently concluded their agreement (on August 19, 2013),

and the charter service is scheduled to commence by ferry today at 4:00 p.m., August 20,

2013. Given the need to make the necessary arrangements to put this charter in place,
Application of Miami Air International, Inc.

Docket OST -2012-

Page2of5

Miami Air is seeking a shortened answer date for this Application, and expedited relief

from the Department. It also asks for immediate verbal authority. As we will show, this

proposed service is very emergent, based on the need to evacuate over 2000 passengers

stranded on a cruise line in Ketchikan, Alaska, 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 with the 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:

I. Miami Air was approached yesterday by an agent of Celebrity Cruise Line to help

in repatriation of its passengers from its cruise vessel stranded in Ketchikan,

Alaska. It requested and Miami Air is prepared to provide two B737-800 aircraft

to assist movement of over 2000 passengers from Ketchikan to Anchorage and

onward carriage on scheduled air transportation from there in eleven (II) revenue

flights and suitable additional ferries. I am advised and believe that Alaska

Airlines has been approached and refused this contract on the basis of lack of

available capacity and equipment as have other Alaskan carriers.

2. Miami Air is a certificated charter air carrier with authority to operate in all

states of the United States, except for charters between points within the State of Alaska,

a restriction imposed by 49 U.S.C. Section 411 04(c) and implemented by 14 C.F.R.

Section 212.3(1). This structure was enacted as a part of the Airline Deregulation Act of

1978 to protect Alaskan carriers from wholesale authorization of permanent authority for
Application of Miami Air International, Inc.

Docket OST-ZOIZPage 3 of 5

intra-Alaska routes and charter operations. In the context of multiple-entry authorization,

a specific finding of "required by the public convenience and necessity" is the

protectionist standard for permanent, certificated authority.' 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.

3. 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 of the new law for charter operations outside the State of

4. 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 of the Department is the more liberal one

applicable generally. The "public interest" has consistently been construed by the

ISee MarkAir, Inc. v. Civil Aeronautics Board, 744 F.2d 1383 (1984), reversing Alaskan .Interstate

Charter-Entry Proceeding, CAB Order 83.11-5 (November 1,1983).

'In doing so, the Senate report on the bill that would beeome law observed,

"While current FA Act does have a section 416 allowing exemption from the act the test for the Board's

usc of the 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 most minor and innocuous requests ... And, the new exemption provisions'

decisional criteria - a broad public interest test - is a vast improvement over current law which analyses the

need for exemption by focusing on the burden enforcement would place on the air cSlTler, and only

incidentally includes public need ... " S. Report 95-631. p. 85-86 (February 6, 1978).
Application of Miami Air International, Inc.

Docket OST -2012-

Page40fS

Department to increase access by the pubic (including its businesses) to the varying and

special kinds of services that businesses see their requirements to be. In any case, this is

a very emergent situation that needs to be addressed immediately in light of the situation

of the cruise passengers involved.

5. Finally, in order to accommodate the start-up of this service need by Celebrity

today, we request that that the answer date be accelerated to this date, so as to allow time

for the Department for issuance of authority permitting that operational start. This

application will be served bye-mail on the attached list of air carriers today.

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 on an emergency basis. 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 of Celebrity, 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-entity charter flights so as to repatriate stranded passengers, cruise line patrons

would comprise a vital part of the Alaskan economy. Finally, an exemption far more

extensive than covered by this request and on a less emergent basis was issued for a

summer-long program to the North Slope in Order 2012-6-22 on June 25, 2012.
Application of Miami Air 1riternational, Inc.

DocketOST-2012-

PageS ofS

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.

fullY~,

ames W. Tello

LAW OFFICES OF JAMES W. TELLO

Counsel for

MIAMI AIR INTERNATIONAL, INC.
CERTIFICATE OF SERVICE

•• James W. Tello, hereby certify that I am causing the Application of Miami Air

International, Inc., for an Emergency Exemption, previously filed with the Department this

date, to be subject to a service bye-mail on August 20, 2013 in accordance with the list set

forth below: (J<f~

James W. Tello

Service List

. Alaska Airlines, Inc.

40-Mile Air, LeifWilson

Air Excursions, Mike Loverink

Alaska Central Express, John Seamon

Alaska Central Express, Mike Bergt

Alaska Central Express, Steve Endlich

Alaska Seaplanes, Craig Loken

Arctic Circle, Robert Hajducovich

Bering Air, James Rowe

Frontier Flying, Bob Hajducovich

Grant Aviation, Bruce McGlasson

Hageland, Mike Hageland

Homer Air

Iliamna Air Taxi, Tim Laporte

Inland Aviation, Stephen Hill

Island Air Service (Redemption)

Katmai Air, Sonny Peterson

msinick@Ssd.com

FortyMi@APTAlaska.net

mloverink@yahoo.com

john@ACEAirCargo.com

MBergt@gci.net

endlich@aceaircargo.com

AKSeaplaneS@Alaska.com

bob@FrontierFlying.com

Jirn@BeringAir.com

bob@FrontierFlying.com .

BMcGlasson@FlyGrant.com

MikeH@POBox.Alaska.net

Andy Smircich homerair@alaska.net

iliamnaairtaxi@starband.net

Dom_inIand@yahoo.com

stanford@alaska.com

KatmaiAir@Katmaiiand.com
Lynden Air Cargo, Judy McKenzie JudV@lac.lynden.com

Northern Air Cargo, David Karp dkarp@nac.aero

Pacific Airways, Stephen Montanus stevem@flypacificairways.com

PenAir, Orin Seybert orin@Penair.com

PM Air, d/b/a Promech, Marc Sessoms Marcsessoms@promechair.com

ServantAir, Wes Osowski wosowski@servantair.com

SmokeyBay, Claire McCann smba@Alaska.net

Spemak Airways, Miek Spemak france@mtaonline.net

Tanana Air Service (Bidzy), Brian Martin wingnut@mcgrathAlaska.net

Taquan Air Service. Brien Salazaar brien@taquanair.com

Tatonduk, Owner, Robert Everts REverts@evertsair.com

Wings of Alaska (Seaport), Bob Jacobsen WingsAk@AOL.COM

Wings of Alaska, Michelle Donohue michelle@wingsofalaska.com

WarbelowsAir Ventures, Arthur Warbelow art@warbelows.com

WrightAir Service, Bob Bursiel bbursiel@aJaska.net

Yute (Flight Alaska), Tim Vottis TimVoWs@FltAlaska.net