### UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C.

Issued by the Department of Transportation on February 26 , 201 5



### NOTICE OF ACTION TAKEN

-- DOCKET DOT

- OST

- 201 4

- 0144

____ ____________________________________________________________________________________________________________________________ This serves as notice to the public of the action described below, taken by the Department official indicated (no additional

confir ming order will be issued in this matter).

Applicant: POLYNESIAN LIMITED ( Polynesian) Date Filed: February 5 , 201 5

Relief requested: Exemption under 49 USC § 40109(g) to permit the applicant to transport persons, property

, and mail between Pago Pago, American Samoa, and the Manu’a Islands

, American Samoa, for a period of six months beginning March 1 , 201 5

. 1
Polynesian states that Inter Island Airways, Inc. (IIA) , a U.S. carrier, previously provided this service ; however, IIA’s airc raft is

out of service

, and it is not clear when IIA’s aircraft will return to service

. Polynesian asserts that there is currently no service between Pago Pago and the Manu’a Islands, creating severe hardships for residents. In this regard, Polynesian in cluded in its application a letter from the Governor of American Samoa specifically supporting the request of Polynesian for an exemption until such time that a U.S. carrier can resume operations.

Previous awards: On August 2 5 , 2014, Polynesian filed an initial application in this Docket for exemption authority to serve the Pago P ago

- Manu’a Islands route for a 9 0

- day period (that is September 1 through November 30, 2014) . We subsequently granted its request in three 30

- day increments by a ctions taken on August 28, 2014; September 25, 2014 ; and October 28 , 2014. On November 17, 2014, Polynesian filed a second application in this Docket for exemption authority to serve the Pago Pago

- Manu’a

Islands route for a 90

- day period (that is December 1 , 2014 through March 1 , 201 5 ). We subsequently granted its request in three

30

- day increments by actions taken on November 26 , 2014; December 30 , 2014; and January 28, 201 5

.

Responsive pleadings: Polynesian served its application on IIA; Hawaiian Airlines, Inc.; United Airlines, Inc.; and the National Air Carrier Association. Each party indicated that it had no comment or did not oppose grant of the requested authority.

Applicant representative: Charles F. Donley II , 202

- 626

- 6840 DOT analyst: Davi d R. Christofano , 202

- 366

- 0584

Statutory Standards: Under 49 USC § 40109(g), we may authorize a foreign air carrier to carry commercial traffic between U.S

. points ( i.e ., cabotage traffic) under limited circumstances. Specifically, we must find that the authority is required in the public interest; that because of an emergency created by unusual circumstances not arising in the normal course of business the traf fic cannot be accommodated by U.S. carriers holding certificates under 49 USC § 41102; that al l possible efforts have been made to place the traffic on U.S. carriers; and that the transportation is necessary to avoid unreasonable hardship to the traffic in volved (an additional required finding, concerning emergency transportation during labor dispu tes, is not relevant here).

DISPOSITION

Action: Approved in part , remainder deferred . (See remarks below.) Action date: February 26 , 201 5

Effective dates of authority granted: March 1

- March 30 , 201 5

.

Basis for approval/partial grant: We are granting Polynesian’s request to operate its proposed intra

- American Samoa services

, using its 19

- seat Twin Otter aircraft, for a period of 30 days, that is, March 1 , 201 5

, through March 30, 201 5 , or until five day s after a U.S. carrier initiates intra

- American Samoa passenger operations, whichever occurs first

. W e are deferring action on the remaining portion of Polynesian’s application, that is, its request for authority to operate beyond March 30, 201 5

.

W e found that this action met all the relevant criteria of 49 USC § 40109(g) for the grant of an exemption of this type

, for a period of 30 days , and that the grant was re quired in the public interest. The absence of U.S. carrier passenger service while IIA’ s aircraft is out of service, constitutes an emergency created by unusual circumstances not arising in the normal course of business. B ased on the record in this proceeding, we concluded that no U.S. carrier had aircraft available that could be used to co nduct the operation s at issue here. We also found that grant of this authority would prevent unreasonable hardship to the residents of

American Samoa

.

1 Polynesian states that it has no objection to grant of its authority for an initial 30

- day period, with deferral of the remainder of the duration of its request

.As provided in 49 U.S.C. 40109(g), we will review this exemption near the end of this 30

- day term to see if the unusual circumstances that established the need for the exemption still exist, and will be prepared to decide at that time whether the situation warrants extension of this authority for an additional term.

Finally, we found that the applicant w as qualified to perform its proposed operation s

.

Except to the extent exempted/waived, this authority is subject to our standa rd exemption conditions (attached)

. We may amend, modify, or revoke the authority granted in this Notice at any time without hearing at our discretion.

Action taken by: Susan L. Kurland Assistant Secretary for Aviation

and International Affairs

An electronic version of this document is available on the World Wide Web at: http://www.regulations.gov

### Foreign Carrier Exemption Conditions

In the conduct of the operations authorized, the foreign carrier appl icant(s) shall:

(1) Not conduct any operations unless it holds a currently effective authorization from its homeland for such operations, and it has filed a copy of such authorization with the Department;

(2) Comply with all applicable requirements of th e Federal Aviation Administration, the Transportation Security Administration, and with all applicable U.S. Government requirements concerning security, including, but not limited to, 14 CFR Parts 129, 91, and 36 and 49 CFR Part 1546 or 1550, as applicable . To assure compliance with all applicable U.S. Government requirements concerning security, the holder shall, before commencing any new service (including charter flights) from a foreign airport that would be the holder’s last point of departure for the United States,

contact its International Industry Representative (IIR) (formerly referred to as International Principal Security Inspector ) to advise the I IR of its plans and to find out whether the Transportation Security Administration has determined that security is adequate to allow such airport(s) to be served;

(3) Comply with the requirements for minimum insurance coverage contained in 14 CFR Part 205, and, prior to the commencement of any operations under this authority, file evidence of such coverage, in the form of a completed OST Form 6411, with the Federal Aviation Administration’s Program Management Branch (AFS

- 260), Flight Standards Service (any c hanges to, or termination of, insurance also shall be filed with that office);

(4) Not operate aircraft under this authority unless it complies with operational safety requirements at least equivalent to Annex 6 of the Chicago Convention;

(5) Conform to the airworthiness and airman competency requirements of its Government for international air services;

(6) Except as specifically exempted or otherwise provided for in a Department Order, comply with the requirements of 14 CFR Part 203, concerning waiver of Warsaw Convention liability limits and defenses;

(7) Agree that operations under this authority constitute a waiver of sovereign immunity, for the purposes of 28 U.S.C. 1605(a), but only with respect to those actions or proceedings instituted against i t in any court or other tribunal in the United States that are: (a) based on its operations in international air transportation that, according to the contract of carriage, include a point in the United States as a point of origin, point of destination, or agreed stopping place, or for which the contract of carriage was purchased in the United States; or (b) based on a claim under any international agreement or treaty cognizable in any court or other tribunal of the United States. In this condition, the te rm "international air transportation" means "international transportation" as defined by the Warsaw Convention, except that all States shall be considered to be High Contracting Parties for the purpose of this definition;

(8) Except as specifically author ized by the Department, originate or terminate all flights to/from the United States in its homeland;

(9) Comply with the requirements of 14 CFR Part 217, concerning the reporting of scheduled, nonscheduled, and charter data;

(10) If charter operations a re authorized, except as otherwise provided in the applicable aviation agreement, comply with the Department's rules governing charters (including 14 CFR Parts 212 and 380); and

(11) Comply with such other reasonable terms, conditions, and limitations req uired by the public interest as may be prescribed by the Department, with all applicable orders or regulations of other U.S. agencies and courts, and with all applicable laws of the United States.

This authority shall not be effective during any period wh en the holder is not in compliance with the conditions imposed above. Moreover, this authority cannot be sold or otherwise transferred without explicit Department approval

under Title 49 of the U.S. Code.

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