March 23, 2010

DOT Docket Office Attention: Angelia Ames, and

Ms. Laura Remo U.S. Department of Transportation 1200 New Jersey Avenue, SE Washington, DC 20590

RE: Motion to file an otherwise unauthorized document and NAC A response to Docket # OST

2009

- 0311, Application of CSI Aviation Services for an Emergency Exemption ; DOT 

### Order 2010

- 3

- 21 ; and Capital Aviation Objection dated March 18, 2010

Dear Ms. Remo:

In accordance with 14 CFR 302.6(c), National Air Carrier Asso ciation (NACA) requests leave to file an otherwise unauthorized document in response to objections filed by Capital Aviation, Inc. and Capital Airways, LLC late March 18, 2010 in the matter in caption. NACA was not served with Capital Aviation’s objection , but NACA believes Capital Aviation’s filing raises significant new issues in public law, federal regulations, and public policy, and its filing will benefit the Department’s consideration. T he Department is well aware that NACA was a party in the procee dings on the CSI application for

emergency exemption (Docket # OST

- 2009

- 0311 ) that resulted in the DOT’s Order to Show Cause, OST

2010

- 3

- 21.

NACA continues to object to the approval of the CSI application for all the reasons previously stated. We

have grave concerns with the apparent claim by the General Services Administration (GSA) that Federal Acquisition Regulations take precedence over DOT’s authority to require certification prior to holding out to the public. We do not believe it is in the publi c interest to grant indirect air carrier status to brokers for government charters until public hearings are held to review GSA’s claims. However, a s the Order to

Show Cause is final in reference to those issues , we will pursue those concerns through othe r avenues available to us.

NACA fully support s the Department’s language in Order 2010

- 3

- 21 that states

, “ 

### The brokers may only enter into agreements with air carriers that hold the requisite authority to engage in air transportation” and footnote 9

, which further clarifies that brokers may not enter into agreements with “carriers” operating under 14 CFR Part 125. While Part 125 operators are not “carrier s ”

, the Department does clarify their intent with that footnote. 

## NATIONAL AIR CARRIER ASSOCIATION

1000 Wilson Boulevard, Suite 1700 Arlington, VA22209 Ph: (703) 358

- 8060 Fax: (703) 3 58

- 8070

www.naca.cc

### Motion to file an otherwise unauthori zed document

Order to Show Cause

Docket OST

- 2009

- 0311 Page 2 of 3

Capital Aviation states on page 4 of its objection that there is no legal or rational basis for DOT to bar brokers from arranging air transportation with Part 125 operators for GSA schedu les or
government agency contracts. It further chastises the Department for not having regulatory authority over Part 125 operations. These statements by Capital Aviation def y the very concepts

of Part 125 certification . In particular, they ignore the fact that 14 CFR Part 125 is only applicable to operations when common carriage is not involved. Thus, Part 125 operators are
restricted to “non

- common carriage.” Non

- common carriage is defined at 14 CFR 119.3 as “an aircraft operation for compensation t hat does not involve a holding out to others [emphasis

add ed].

To add further emphasis to this requirement, Section 119.5(k) states, “No person may advertise or otherwise offer to perform an operation subject to this part unless that person is authorize d by the Federal Aviation Administration to conduct that operation.” Thus, Part 125 operators may

not advertise or solicit from anyone, public or private . Providing air operations t hrough a broker is “holding out” as the broker is clearly soliciting a go vernment contract in this case. Furthermore, Section 119.5(h) states, “ Persons issued an Operating Certificate authorizing non

common or private carriage shall not conduct any operation in common carriage

. ” Only direct air carriers holding Air Carrier Ce rtificates may conduct common carriage . Section 119.5(i) states, “No person may operate as a direct air carrier without holding appropriate economic authority from the Department of Transportation.”

Thus, while it may surprise Capital Aviation, Part 12 5 operations contracted through a broker is now and always has been a violation of Federal Aviation Regulations. That same Federal Aviation Regulation requires DOT economic authority to hold out for air transportation. While Capital Aviation, a broker wi thout DOT economic authority, may not know the FAA regulations, Capital Airways is re quired to know them. We implore both DOT and FAA to hold all persons accountable for federal regulations.

Capital Aviation conveniently overlooks requirements in its con tracts with the government of

which Capital Airways may not be aware. The U.S. Immigration and Customs Enforceme nt (ICE) contract statement of work states that the contract is for “Air Transportation.” “ Air transportation” include s the transportation of passenge rs or property by aircraft as a common carrier for

com p ensation. As noted above, c ommon carriage in the context of air service consists of the provision or holding out of transpo rtation by air. From the standpoint of the requirements of section 41101, the holding out of air service, as well as the actual operation of that service, constitutes “engaging” in air

tran s portation.

The ICE contract is also dependent upon the vendor holding a GSA schedule and abiding at all times with

the detailed requ irement s of the GSA contract

. The language of the Capital Aviation GSA contr act SIN

599

- 5 S tatement of W ork, also held by CSI and other brokers, from its very drafting approximately 18 months ago , has called for “air transportation” and specifies that the operations must be provided byMotion to file an otherwise unauthorized document

Order to Show Cause

Docket OST

- 2009

- 0311 Page 3 of 3

subcontractors that must be certificated under 14 CFR parts 121 and/or Part 135. ( See SIN 599

- 5 statement of work, sect ion entitled Requirement for Operators, para graph 2)

. NACA is well aware that

this GSA contract standard existed prior to DOT’ s investigation of the broker violations that brought

about CS I’s application for indirect air carrier status. Thus, contrary to Capital Aviation’s assertion, DOT’s recent investigations did not create anything new under these government contracts.

Capital Aviation states that its “affiliate” Capital Airways has flown more than 3,000 flights for U.S. Customs and Immigration Enforc ement (ICE). However, Capital Aviation does not explain under what authority these contracts were operated

. The ICE Statement of Work, as noted above, calls for air transportation, and, as noted above, that air transportation can only b e provided as comm on carriage by a part 121 or 135 Air Carrier Certificate holder. Thus, there could not have been a legal direct contract between ICE and Capital Airways, a Part 125 operator restricted to non

- common carriage. If the transportation was in a subcontract th rough a broker that was “holding out”

, then neither the broker nor the operator was qualified under DOT an d/or FAA regulations to do so.

The issues and this objection by Capital Aviation only further emphasize the problems in permitting GSA

599

- 5 to exist without extensive revision and training of agency contracting officials to bring it into compliance with existing laws and regulations pertaining to air carrier certification. Issuance of a new

DOT Order for future use does not relieve non

- certificated e ntities from wrong

- doing in the past.

We respectfully request the following steps by the Department : (1) continue to investigate both prior and existing violations of DOT and FAA regulations revealed in the CSI application and Capital Aviation ’s objecti on; (2) hold those responsible who are clearly in violation; (3) cause GSA to modify the lan guage of SIN 599

- 5 to clarify the details of the new Order 2010

- 3

- 21 ; and , (4) cause GSA to distribute training materials through its web site for agency contract o fficers and persons attempting to contract with GSA to provide air transportation.

Respectfully Submitted

,

A. Oakley Brooks

President