Order 2010-1-9 Served: January 14, 2010

U N I T E D S

T A T E S O F A

M E R I C A D E P A R T M E N T O F T R A N S P O R T A T

I O N UNITED STATES OF AMERICA
DEPARTMENT OF TRANSPORTATION
OFFICE OF THE SECRETARY WASHINGTON, D.C.

Issued by the Department of Transportation

on the 14 th day of January 2010

Emergency exemption pursuant to 49 U.S.C. § 40109 from the provisions of 49 U.S.C. § 41101 (indirect air transportation) DOCKET DOT-OST-2010-

0010

ORDER GRANTING EM ERGE NCY EXEMPTION

Summary

By this order, we grant an exemption from 49 U.S.C. § 41101 and applicable Department regulations to the extent necessary to permit, on behalf of U.S. Government charterers engaged in Haiti earthquake rescue and relief op erations, indirect air transportation by GSAapproved entities, including those curren tly approved under General Services Administration (GSA) Special Item Number (SIN) 599-5, Ai r Charter Services-Brokers
(hereinafter the “Broker Schedule”). 1

Background

On January 12, 2010, an earthquake measuring approximately 7.0 on the Richter Scale occurred along a fault line several miles from the Haitian capital of Port-au-Prince. The earthquake was the strongest to hit the Caribbean in more than 100 years. It has wrought untold devastation and suffering. In its afte rmath, a humanitarian crisis has emerged in which hundreds of thousands of people are without basic life sustaining services. Massive rescue and relief efforts are underway to mitigate the crisis. Those efforts include the transportation by air of U.S. Government pe rsonnel and material, including food, water, reconstruction equipment, and medical supplies and personnel. Time is of the essence with regard to these services.

1 A separate order granting an emergency exemption from 49 U.S.C. § 41101 has been issued to carriers licensed under 14 CFR Part 125 to the extent necessary fo r them to assist persons fr om the areas affected by the earthquake in Haiti and for the carriage of personnel and relief supplies in support of the relief effort.2

Decision

The Departm ent finds that the services of air charter brokers approved by GSA, including

those listed on the Broker Sche dule, none of which currently hold economic authority from the Department to engage directly or indirec tly in air transportati on, may be needed on an immediate basis to expedite the earthquake rescue and relief effo rts of the U.S. Government. In order to perform these services, whic h are in the public interest under these circumstances, those air charter brokers must be able to enter, as principals, into contracts

with direct air carriers 2 for air transportation and then re-s ell the same air transportation via separate contracts between them and U.S. Gove rnment agency charterers. Absent our action here, such conduct would cause them to be unauthorized indirect air ca rriers in violation of the Department’s aviation economic au thority requirement, 49 U.S.C. § 41101. 3

The authority granted here is effective immedi ately and shall be effective for a period of 30 days from the issuance date of this order. We will evaluate the continuing need for this authority and, if warranted, ex tend it at a later date.

Considering the exigent circumstances beari ng on our decision, the issuance of this order

should not be construed as indi cative of any position by the Depa rtment in the matter of the Application of CSI Aviation Services, Inc. , for an Emergency Exemption (Docket DOTOST-2009-0311), which application deal s with some similar issues.

ACCORDINGLY :

1. We grant an emergency exemption under 49 U.S.C. § 40109 from 49 U.S.C. § 41101 and applicable Department regula tions to the extent necessary to permit, on behalf of U.S. Government charterers engaged in Haiti earthquake re scue and relief opera tions, indirect air transportation by GSA-approved entities, including entities curr ently approved under General Services Administration (GSA) Speci al Item Number (SIN) 599-5, Air Charter Services-Brokers;

2. The authority granted in ordering paragra ph 1 is effective immediately and shall be effective for a period of 30 days from the issue date of this order; and

2 A direct air carrier is a certificated or foreign air car rier that directly engages in the operation of aircraft under a certificate, permit, or exemption issued by the Department.

3 We note that air charter brokers seeking to link non-U.S. Government charterers to direct air carriers do not need the exemption authority contained here. Instead , they may already do so prov ided that they are acting as an authorized agent of a charterer or direct air carrier. Notice on the Role of Air Charter Brokers in Arranging Air Transportation , 69 Fed. Reg. 61429, Oct. 18, 2004, erratum published 69 Fed. Reg. 62321, Oct. 25, 2004. By contrast, it is our understanding that air charter brokers, under current procurement rules, may not act as an agent of the U.S-Government for purposes of procuring air transportation for U.S. Government charterers, thereby necessitating this exemption.3

3. We reserve the right to amend, modify, or re voke this authority at any time, in the public interest, without notice or hearing.

By:

SUSAN L. KURLAND Assistant Secretary for Aviation

and International Affairs

An electronic version of this document is available at www.regulations.gov