Order 20 1 3

- 1

- 7

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C.

Issued by the Department of Transportation

on the 8 th day of January , 201 3

Se rved: January 8 , 20 1 3

Application of

ISLANDER ENTERPRISES SAMOA LTD. d/b/a

SAMOA AIR Docket DOT

- OST

- 201 2

- 0198

for a foreign air carrier permit under 49 U.S.C. §41301

ORDER TO SHOW CAUSE

Summary

By this order we tentatively find that it is in the public interest to grant the applicant the foreign air carrier permit attached as the Appendix to this order.

Application

By application filed November 20, 2012

, as supplemented December 6, 2012, 1 Islander Enterprises Samoa Ltd. d/b/a Samoa Air (Samoa Air)

, a foreign air carrier of Samoa

, requests a foreign air carrier permit under 49 U.S.C. §41301, using small aircraft

, to engage in scheduled

and charter foreign air transportation o f persons, property, and mail: (i ) from points behind the Independent State of Samoa, via the Independent State of Samoa and intermediate points, to any point or points in American Samoa and beyond; and (ii) for all

- cargo service or services,

between American Samoa a nd any point or points. 2

The applicant provided evidentiary materials required by 14 CFR Part 211 of our regulations to support its request s for authority.

1 We note that in this same application Samoa Air requested exemption authority and we ha ve previously acted on that portion of its request. See Notice of Action Taken dated December 10, 2012, in the above referenced Docket.

2 In its application, Samoa Air notes that it has separately filed with the Department an application for an emergency exemption to conduct cabotage operations between Pago Pago International Airport in American Samoa and the regional airports Fitiuta Airport in Ta’u and Ofu Airport located in the Manu’a Islands of American Samoa. See

Docket DOT

- OST

- 2012

- 0199. In its Dec ember 6, 2012 supplemental filing in Dockets DOT

- OST

- 2012

- 0198 and

DOT

- OST

- 2012

- 0199, Samoa Air requests that the 30

- day period of its cabotage request commence no earlier than the date that the Federal Aviation Administration (FAA) issues it Part 129 Oper ations Specifications. We will address the disposition of Samoa Air’s cabotage exemption request in a separate action.2

On December 5, 2012, Inter Island Airways, Inc. filed an answer in support of Samoa Air’s

request.

Tentative Findings and Conclusions

We tentatively find and conclude that the public interest warrants granting the applicant a foreign

air carrier permit, in the form attached as the Appendix to this order, and subject to the

conditions attached. 3 In p articular, we tentat ively find that grant of this authority is in the public interest; that the applicant has demonstrated, based on the record, that it is financially and operationally fit to perform the services authorized; and that it is substantially o wned and effectively controlled by citizens of its homeland

. 4 5

The authority sought by the applicant is encompassed by the Multilateral Agreement on the Liberalization of International Air Transportation (MALIAT). We also note that the applicant is properly licensed by its homeland to perform the proposed services. In addition, on December 7, 2012, the Federal Aviation Administration advised us that it knew of no reason why we should act unfavorably on the applicant’s request. We have verified the applicant’s compliance with 14 CFR Parts 203 (Warsaw liability waiver ), and 205 (insurance requirements).

In view of the foregoing and all facts of record, we tentatively find and conclude that:

1. It is in the public interest to issue the applicant a foreign air carrier permit in the form

attached

, for operations with s mall aircraft ; 6

2. The applicant is fit, willing and able properly to perform the foreign air transportation described in the attached permit and to conform to the provisions of Title 49 of the U.S. Code, and to our rules, regulations, and requirements;

3. The applicant is substantially owned and effectively controlled by citizens of its claimed

homeland ;

4 . The public interest requires that the exercise of the privileges granted by the permit should be subject to the terms, conditions, and limitation s contained in the attached permit, and to such other reasonable terms, conditions, and limitations required by the public interest as we may prescribe;

3 The applicant’s request for a foreign air carrier permit was summarized in the Department’s published weekly list of applications file d. This notice described the authority sought and gave interested persons an opportunity to submit evidence and objections to the award of this foreign air carrier permit authority.

4 The applicant has requested confidential treatment of its shareholder and financial information under the provisions of 14 CFR 302.12. Good cause having been shown, we will grant this request.

5 The record indicates that Samoa Air’s CEO and three of its six key management personnel are Samoan citizens,

with one a citizen of Australia, and two citizens of New Zealand.

6 In its application, Samoa Air indicates that it initially intends to limit its services to small aircraft operations.3

5 . The issuance of this foreign air carrier permit will not constitute a major regulatory action under the Energy Policy and Conservation Act of 1975, as defined in 14 CFR §313.4(a)(1) of our regulations; 7

6 . The public interest does not require an oral evidentiary hearing on the application; and

7 . Our action with respect to this foreign air carr ier permit should, unless disapproved by the President of the United States under §41307 of Title 49 of the U.S. Code, become effective on the 61st day after its submission for §41307 review, or upon the date of receipt of advice from

the President or his designee under Executive Order 12597 and implementing regulations that he or she does not intend to disapprove this portion of the Department’s decision under that section,

whichever occurs earlier

.

In view of the above, and acting under authority assigne d by the Department in its regulations, 14 CFR Part 385, we find that our actions are consistent with Department policy.

ACCORDINGLY,

1. We direct all interested persons to show cause why our tentative decision on the application

of Islander Enterprises Samoa Ltd. d/b/a Samoa Air , set forth above, should not be made final;

2

. We grant the motion of Islander Enterprises Samoa Ltd. d/b/a Samoa Air for confidential

treatment of its shareholder and financial information , consistent with the provisions of 14 CFR §302.12;

3

. Any interested person objecting to the issuance of an order making final our tentative findings

and conclusions with respect to the applicant’s request for a foreign air carrier permit shall, no later than twenty

- one (21) calendar days after the date of service of this order, file with the Department and serve on the parties to this proceeding , a statement of objections specifying the part or parts of the tentative findings and conclusions objected to, together with a summary of

testimo ny, statistical data, and concrete evidence to be relied upon in support of the objections; if objections are filed, answers to objections are due no later than seven (7) calendar days thereafter;

4

. If timely and properly supported objections are filed, we will give further consideration to the matters and issues raised by the objections before we take further action;

5

. In the event no objections are filed, all further procedural steps shall be deemed waived, and the Department will enter an order whi ch will (subject to Presidential review under §41307 of Title 49 of the U.S. Code) make final our tentative findings and conc lusions set forth in this order; and

7 This finding is based on the fact that the grant of this permit will not result in a n ear

- term net annual change in aircraft fuel consumption of 10 million gallons or more.4

6

. We will serve a copy of this order on Islander Enterprises Samoa Ltd. d/b/a Samoa Air

, the Embassy of Samoa in New York, NY , the Federal Aviation Administration, and the U.S. Department of State.

By:

PAUL L. GRETCH

Director

Office of International Aviation

(SEAL)

Appendices

An electronic version of this document is available on t he World Wide Web at: http://www.regulations.govA ppendix

Issued by

Order 20 1 3

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UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C.



### -------------------------------------------------------- PERMIT TO FOREIGN AIR CARRIER



### --------------------------------------------------------- Islander Enterprises Samoa Ltd. d/b/a Samoa Air

A Foreign Air Carrier of Samoa

is authorized, subject to the following provisions, the provisions of Title 49 of the U.S. Code, and the orders, rules, and regulations of the Department of Transportation, to engage in:

S cheduled and charter fo reign air transportation of persons, property, and mail: (i) from points behind the Independent State of Samoa, via the Independent State of Samoa and intermediate points, to any point or points in American Samoa and beyond; and (ii) for all

- cargo service or services, between American Samoa and any point or points;

In the conduct of these operations, the holder may only use aircraft capable of carrying no more than 60 passengers and having a maximum payload capacity of no more than 18,000 pounds.

This per mit and the exercise of the privileges granted in it shall be subject to the terms, conditions and limitations in both the order issuing this permit and the attachment to this order, and to all applicable provisions of any treaty, convention or agreement a ffecting international air transportation now in effect, or that may become effective during the period this permit remains in effect, to which the United States and the holder’s homeland are or shall become parties.

This permit shall be effective on

__________ . Unless otherwise terminated at an earlier date pursuant to the terms of any applicable treaty, convention or agreement, this permit shall terminate (1) upon the dissolution or liquidation of the holder to whom it was issued; (2) upon

the effective date of any treaty, convention, or agreement or amendment, which shall have the effect of eliminating the bilateral right for the service authorized by this permit from the service which may be operated by airlines designated by the Government of Samoa (o r, if the right is partially eliminated, then the authority of this permit shall terminate in like part); (3) upon the effective date of any permit granted by the Department to any other carrier designated by the

Government of Samoa in lieu of the holder; or (4) upon the termination or expiration of the applicable air services agreement between the United States and Samoa . However, clause ( 4 ) of this paragraph shall not apply if prior to such termination or expiration, the foreign air transportation authorized herein becomes the subject of another treaty, convention or agreement

to which the United States and Samoa become parties.The Depa rtment of Transportation has executed this permit and affixed its seal on

By:

PAUL L. GRETCH

Director

Office of International Aviation



### (SEAL)Foreign Air Carrier Permit Conditions

In the conduct of the operations authorized, the foreign carrier applicant(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 applicabl e requirements of the 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 o f 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 Administratio n 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 evi dence 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 changes 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 inte rnational 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 it 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 term "international air transportation" means "internat ional 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 authorized by the Department, originate or terminate all fl ights 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 are 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 required by the public interest as may be prescribed b y 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 when the holder is not in compliance with the conditi ons imposed above. Moreover, this authority cannot be sold or otherwise transferred without explicit Department approval under Title 49 of the U.S. Code.

12/2007