### BEFORE THE U.S. DEPARTMENT OFTRANSPORTATION

WASIDNGTON, D.C.
Application of

for an emergency exemption pursuant to49U.S.C. ~40109 and 14C.F.R. ~~302.302 AND302.311. ) ) 

### MIAMI AIR INTERNATIONAL, INC. ) ) ) ) ) ) 

### Docket OST_' 

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### APPLICATION OF MIAMI Am INTERNATIONAL, INC. FOR ANEMERGENCY 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 BEFILED BYAUGUST 20.2013

### BEFORE THE U.S. DEPARTMENT OF TRANSPORTATION

WASHINGTON, D.C.
Application of

foran emergency exemption pursuant to49U.S.C.1l40109 and 14C.F.R. 111l302.J02and 302.311. ) ) 

### MIAMI AIR INTERNATIONAL, INC. ) ) ) ) ) ) 

### 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 14C.F.R. Sections 302.302 and 302.311, hereby applies for an emergency exemption from the provisions of 49 U.S.C. Section 41104(c) and 14C.F.R. Section 212.3(1) to engage in single entity charter air transportation ofpersons and property for the Celebrity Cruise Lines ("Celebrity") between certain points within the State ofAlaska for the duration ofacertain 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), andthe 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 ofMiami Air International, Inc.

Docket OST-2012- Page2of5 Miami Air is seeking a shortened answer date for this Application, and expedited relief fromthe 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 ofmultiple entry, and permanent, services intended for sale to the general public in Alaska. As such, it is consistent with the public interest, afinding 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. Itrequested 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 airtransportation from there in eleven (II) revenue flights and suitable additional ferries. Iam 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 ofthe United States, except for charters between points within the State ofAlaska,
arestriction imposed by 49 U.S.C. Section 41104(c) and implemented by 14 C.F.R. Section 212.3(1). This structure was enacted as apart ofthe Airline Deregulation Actof 1978to protect Alaskan carriers from wholesale authorization ofpermanent authority forApplication ofMiami Air International, Inc.

Docket OST-ZOIZPage 3 of5 intra-Alaska routes and charter operations. Inthe context ofmultiple-entry authorization,
a specific finding of "required by the public convenience and necessity" is the protectionist standard for permanent, certificated authority.' Itis not a standard to be found in the exemption provisions ofthe same Airline Deregulation Act. It does not apply to temporary needs for aparticular kind ofservice between specific points for a limited duration in time.

3. Section 40109 ofthe 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

4. Thus, the standard for an exemption to provide authority for alimited period of time isnot the same as that required forpermanent authority. Miami Air, in this application, seeks only the former and notthe 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

I See 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 ofthe exemption power is far too rigid. In practice ithas been limited to circumstances where no interested party
- usually some competitor

- has expressed an objection to aproposed action

- generally limiting its use to only the most minor and innocuous requests ... And, the new exemption provisions' decisional criteria

- abroad 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 ofMiami 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
avery emergent situation that needs to be addressed immediately in light ofthe situation ofthe cruise passengers involved.

5. Finally, in order to accommodate the start-up ofthis 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 ofair carriers today.

Conclusion. This is not an application to operate a service that will then be held out to thepublic generally and it is sharply limited in scope and duration. It comprises, in its nature and extent, aprivate service carefully and individually created for a single, individual customer on an emergency basis. Inthat way itis 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 ofthe service needs ofCelebrity, 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 ofthis application for exemption for this limited contract for specialized, single-entity charter flights so as to repatriate stranded passengers, cruise line patrons would comprise avital part oftheAlaskan economy. Finally, an exemption far more extensive than covered by this request and on aless emergent basis was issued for a summer-long program to the North Slope in Order 2012-6-22 on June 25, 2012.Application ofMiami 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 itto 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 ofMiami 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: 

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James W. Tello Service List

.Alaska Airlines, Inc. 40-Mile Air, LeifWilson AirExcursions, 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

### LyndenAirCargo,Judy McKenzie JudV@lac.lynden.com

NorthernAirCargo, David Karp dkarp@nac.aero PacificAirways, StephenMontanus stevem@flypacificairways.com PenAir,OrinSeybert orin@Penair.com PMAir,d/b/aPromech, Marc Sessoms Marcsessoms@promechair.com ServantAir,WesOsowski wosowski@servantair.com SmokeyBay, ClaireMcCann smba@Alaska.net SpemakAirways,Miek Spemak france@mtaonline.net TananaAirService(Bidzy), BrianMartin wingnut@mcgrathAlaska.net TaquanAirService. Brien Salazaar brien@taquanair.com Tatonduk,Owner,RobertEverts REverts@evertsair.com WingsofAlaska(Seaport), BobJacobsen WingsAk@AOL.COM WingsofAlaska,Michelle Donohue michelle@wingsofalaska.com WarbelowsAirVentures, ArthurWarbelow art@warbelows.com WrightAirService,Bob Bursiel bbursiel@aJaska.net Yute(FlightAlaska), TimVottis TimVoWs@FltAlaska.net