364296/1/WASHINGTON 

### BEFORE THE DEPARTMENT OF TRANSPORTATION

WASHINGTON, D.C.

In the matter of the application of ) ) POLYNESIAN LIMITED ) Docket DOT-OST-2014-0144 

### ) for an exemption pursuant to ) 49 U.S.C. 40109(g) ) (Pago Pago-Manu’a Islands) ) )

APPLICATION FOR EXEMPTION
Communications with respect to this document should be addressed to: Charles F. Donley II Squire Patton Boggs (US) LLP 1200 19 th 

### Street, N.W., Suite 300 Washington, D.C. 20036 (202) 626-6840 charles.donley@squirepb.com Counsel to Polynesian Limited

DATED: November 17, 2014364296/1/WASHINGTON 

### BEFORE THE DEPARTMENT OF TRANSPORTATION

WASHINGTON, D.C.

In the matter of the application of ) ) POLYNESIAN LIMITED ) Docket DOT-OST-2014-0144 

### ) for an exemption pursuant to ) 49 U.S.C. 40109(g) ) (Pago Pago-Manu’a Islands) ) )

APPLICATION FOR EXEMPTION Polynesian Limited (“Polynesian”) hereby requests an exemption from the provisions of 49 U.S.C. 40109(g) and 41703(c) that will permit Polynesian to continue to transport persons, property and mail between Pago Pago, American Samoa, and the Manu’a Islands, American Samoa, 1 

### for a period of ninety days beginning December 1, 2014. 2



### The Department of Transportation (“Department”) previously approved similar requests from Polynesian to operate between Pago Pago and the Manu’a Islands due to U.S.

1 The Manu’a Islands consist of three volcanic islands, Ofu and Olosega (joined by a bridge) and Ta'u, located approximately sixty miles east of Tutuila. Tutuila is the largest of the five islands and two coral atolls comprising American Samoa. Pago Pago is located on Tutuila.

2 Polynesian is requesting grant of this authority for ninety days to avoid the need to file duplicative applications with the Department. Polynesian understands that (i) any authority granted pursuant to this request will be subject to further review by the Department in the event a U.S. carrier resumes full passenger and/or cargo service between Pago Pago and the Manu’a Islands; (ii) the Department’s approvals will be valid for periods of no more than thirty days, with the remainder deferred; and (iii) Polynesian will be required to cease this service no more than five days after a U.S. carrier initiates Pago Pago-Manu’a Islands service.

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### carrier termination of service between these points. 3 

### Most recently, the Department approved on August 28, 2014, an exemption permitting Polynesian to provide cabotage service between Pago Pago and the Manu’a Islands for up to ninety days. 4



### Despite the passage of ninety days since approval of Polynesian’s last exemption request, Polynesian is still the only carrier able to transport passengers and cargo between Pago Pago and the Manu’a Islands. The Government of American Samoa has requested that Polynesian continue to provide emergency service between Pago Pago and the Manu’a Islands beginning December 1 to prevent American Samoan residents from being left without air service. Polynesian has agreed to the American Samoan Government’s request, and is prepared to continue operations.

No U.S. carrier is able to provide Pago Pago-Manu’a Islands service, nor is one likely to be in a position to provide this service in the near future. Inter Island Airways (“IIA”) (which is a U.S. carrier) previously provided this service. However, Polynesian understands IIA’s aircraft remains out of service awaiting a replacement engine. Although Polynesian believed the engine would arrive in October 2014, Polynesian now understands it has not arrived and it is not clear when IIA’s aircraft will return to service. As a result, there is no U.S. carrier air service—or any service, other than that operated by Polynesian— between Pago Pago and the Manu’a Islands.

3 See, Notices of Action Taken , Docket OST-2003-16163, September 23, 2003 and October 23, 2003; Notices of Action Taken , Docket OST-2003-16404 and November 7, 2003; Notices of Action Taken , Docket OST-2004-17387, March 26, 2004, April 30, 2004 and May 27, 2004; Docket OST-2004-18365, Notices of Action Taken , September 22, 2004, October 15, 2004 and November 23, 2004.

4 Notice of Action Taken , Docket DOT-OST-2014-0144, August 28, 2014

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### Polynesian will accept the conditions imposed by the Department in its August 28, 2014, Notice of Action Taken in continuing Pago Pago-Manu’a Islands service, and has no objection to grant of its authority for an initial thirty-day period, with deferral of the remainder. In further support of its request for exemption, Polynesian states as follows:

1. Polynesian is a citizen of Samoa and is entirely owned by the Government of Samoa. Polynesian was established by the Samoan Government pursuant to a restructuring plan intended to isolate certain pre-existing financial obligations of Polynesian Airlines (Holdings) Limited. Pursuant to the plan, effective November 6, 1995, Polynesian assumed all of the operating authority held previously by Polynesian Airlines (Holdings) Limited.

2. In addition to its proposed Pago Pago-Manu’a Islands emergency service, Polynesian currently operates from its hub, Fagalii Airport in Apia, to Pago Pago in American Samoa and operates on-demand charter services to Maota and Asau Samoa domestic airstrips on the big island of Savaii as well as to other neighboring island countries such as Tonga and Niue utilizing Twin Otter aircraft. Polynesian’s fitness and ability to carry out the proposed flight are amply demonstrated through its regular flight operations.

3. Polynesian’s operations are regulated by the Government of Samoa, which in turn utilizes under contract the safety and technical regulatory services of the New Zealand Civil Aviation Authority. New Zealand and Samoa are contracting states to the Convention on International Civil Aviation (“Chicago Convention”) and observe all

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### applicable ICAO standards. Samoa has been determined by the FAA to be a Category 1 country. 4. Polynesian will continue to operate twice-daily flights between Pago Pago and the Manu’a Islands depending on the needs of island residents and shippers and aircraft availability, and will continue to operate medical evacuation and other emergency flights as needed. Flights will be operated with Polynesian’s 19-seat Twin Otter aircraft.

5. During September and October 2014, Polynesian transported approximately 285 and 275 passengers, respectively, between Pago Pago and the Manu’a Islands, demonstrating the need for its service.

6. Under 49 U.S.C. 40109(g), the Department may authorize a foreign air carrier to transport commercial traffic between U.S. points under limited circumstances. Specifically, the Department must find that (i) the authority is required in the public interest, (ii) because of an emergency created by unusual circumstances not arising in the normal course of business the traffic cannot be accommodated by U.S. carriers holding certificates under 49 U.S.C. 41102, (iii) all possible efforts have been made to accommodate the traffic on U.S. certificated air carriers, and (iv) the exemption is necessary to avoid unreasonable hardship for the traffic. This application is consistent with the public interest and meets all of the relevant criteria under 49 U.S.C. 40109(g) for the grant of an exemption. In fact, the Department has found previously that Polynesian’s emergency cabotage service between Pago Pago and the Manu’a Islands meets the requirements of Section 40109. 5

5 Notice of Action Taken , Docket DOT-OST-0144, August 28, 2014 (“We 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

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### 7. Grant of this exemption request is in the public interest and necessary to avoid an unusual hardship. IIA previously provided air service but is unable to do so until its aircraft is repaired. No other U.S. carriers are available to provide this service.

8. There is no question that the suspension of U.S. carrier air service between Pago Pago and the Manu’a Islands has resulted in severe hardship to passengers and shippers and disruption to the American Samoan economy, as confirmed by the Government of American Samoa. Not only is discretionary travel affected, Polynesian understands there are no doctors on the Manu’a Islands and residents are severely restricted in their ability to obtain urgent medical care in Pago Pago. Indeed, during Polynesian’s most recent operations in September it has been called upon to operate medical evacuation flights. 9. Polynesian’s request for an exemption permitting it to continue to provide limited cabotage service between Pago Pago and the Manu’a Islands is supported fully by the Government of American Samoa. Included with this application is a letter from the Governor of American Samoa supporting approval of Polynesian’s application 6



### 10. An emergency created by unusual circumstances not arising in the normal course of business exists. Since IIA suspended its flight, U.S. carrier air service between Pago Pago and the Manu’a Islands is not available making it extremely difficult or

that the grant was required in the public interest.”); Notice of Action Taken , Docket OST-2004-17387, March 26, 2004 (“Given these circumstances, we find that the standards for grant of emergency cabotage authority have been met, and that grant of the exemption requested by Polynesian, for a maximum of 30 days, with deferral on the remainder, is warranted.”). See, also , Notice of Action Taken , Docket OST-2004- 18365, August 23, 2004

6 See Exhibit A

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### impossible for passengers to travel between the two points. Boat service (which does not operate reliably) is not a suitable substitute, as the arduous sixty-mile journey by sea can take eight hours or more depending on weather. Moreover, the seas between American Samoa and the Manu’a Islands can be rough, and Polynesian understands that in the past a number of critically ill passengers have not survived the boat trip.

WHEREFORE , Polynesian Limited respectfully requests that the Department of Transportation grant this exemption application permitting it to continue to transport persons, property and mail between Pago Pago, American Samoa, and the Manu’a Islands, American Samoa, for a ninety-day period beginning December 1, 2014, as more fully explained herein, or grant such other relief as the Department deems necessary and appropriate. Respectfully submitted, /s/ Charles F. Donley II

___________________________ Charles F. Donley II Squire Patton Boggs (US) LLP 1200 19 th 

### Street, N.W., Suite 300 Washington, D.C. 20036 (202) 626-6840 charles.donley@squirepb.com Counsel to Polynesian Limited DATED: November 17, 2014

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### EXHIBIT ALOLO M. MOLIGA GOVERNOR OFFICE OF THE GOVERNOR AMERICAN SAMOA GOVERNMENT Telephone: (684) 633-4116 Fax: (684) 633-2269 LEMANU P

. MAUGA LIEUTENANT GOVERNOR

November 3, 20 14 Serial: 890
US Depattment ofTransportation US Air Carrier & Foreign Air Carrier Licensing Divi s ion 1200 New Jersey Ave, SE Was hington , DC 20590 Attn: Robert Finmore
Re: R e quest for DOT Ca botage Exe mption Ex ten s ion
D ea r Mr. Finmore , The American Samoa Government kind ly reque s ts a Dep a rtm e nt of Transpor tat ion (DOT) ex ten s ion of the exempt ion to Po l y nes i an Airlin es to co ntinue to e ngage in c a botag e operati o n s in Amer i can Samoa due to th e continu e d absence of U .S ca tTi ers se rv icin g the outer islands of the Te rrit ory . T h e ex ten sion ofthe exemption fac ili tates the provisioning of assistance to mi tigat e e m e rge nc y circumstances caused by th e lack of se r v ic e and ultimatel y r e m e d y th e undu e hard s hip to those affec ted. Accordingly , I s upport the g rantin g of th e exte n sio n of the cabotage exemption to t h e foreign a ir carrier Po l yn es i a A irlin e of Samoa until s uc h a tim e aU

. S catT ie r can re s um e operatio n s. Pol y nesian A irlin es currentl y hold s DOT authorit y , and i s c urr e ntl y se rvic in g the air tran s portation n eed s of th e r es id e nt s of the Manu'a I s lands.
Your ap pro val of this re qu es t is greatl y apprec i ated.
Sincerel y,

# L~ 

# m.**1'7t~,so.** Lo lo M. Mo li ga Governo r of American Samoa
Cc: H o nora ble L e manu P. Mauga, Lieutenant Govern o r Taimal el ag i Dr. C laire Tuia Poumele , D irector , D e pt. of Port Administration Seiuli Al v in T u a l a , C hi ef Exec uti ve Officer, Polyne s ian Air lin es364296/1/WASHINGTON 

### CERTIFICATE OF SERVICE I hereby certify that one copy of the foregoing Application for Exemption has this day been served on each of the following individuals via e-mail or telecopier. /s/ Charles F. Donley II

___________________________ Charles F. Donley II

DATED: November 17, 2014 Office of the Governor Executive Office Building, Third Floor, Utulei Pago Pago, American Samoa 96799 011 684-633-2269 jhill@cooley.com ; perkmann@cooley.com (Hawiian) alex.sene.jr@gmail.com (IIA) steve.morrissey@united.com ; dan.weiss@united.com pdoell@naca.cc