UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

Issued by the Department of Transportation on February 18, 2005

NOTICE OF ACTION TAKEN – DOCKET OST 2004-20451

________________________________________________________________________
___________________________________________________

This serves as notice to the public of the action described below, taken
by the Department official indicated (no additional confirming order
will be issued in this matter).

Applicant:  POLYNESIAN LIMITED						Date Filed:  February 18, 2005

Relief requested:  Exemption from 49 U.S.C. § 40109(g) to permit the
applicant to carry persons, property and mail, between Pago Pago,
American Samoa, and the Manu’a Islands, American Samoa, for a period
of 10 days beginning February 18, 2005.  The applicant asserts that the
Government of American Samoa has, in the wake of Cyclone Olaf, asked to
charter the applicant’s aircraft in order to deliver emergency relief
supplies and conduct any necessary medical evacuations.  The applicant
further asserts that, in light of the critical need for service, the
U.S. carrier currently serving American Samoa (Inter Island Airways) may
lack the capacity to relieve the immediate need for relief and medical
evacuations.  Polynesian accompanied its application with a letter of
support from the Governor of American Samoa.

Applicant representative:  Charles F. Donley II, 202-626-6840        DOT
analyst:  Brian J. Hedberg, 202-366-7783

Responsive pleadings:  The applicant polled all carriers listed in the
certificate of service to its application.  All stated that they did not
oppose the request.  Inter Island Airways submitted a letter expressly
confirming its non-objection to Polynesian’s emergency exemption
request.

Statutory Standards:  Under 49 U.S.C. § 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 traffic cannot be accommodated by U.S.
carriers holding certificates under 

49 U.S.C. § 41102; that all 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 involved (an additional
required finding, concerning emergency transportation during labor
disputes, was not relevant here).

DISPOSITION

Action:  Approved.                                                      
                                              Action date:  February 18,
2005

Basis for approval:  Taking into account the current record, we are
granting Polynesian Limited’s request to carry persons, property, and
mail, within American Samoa, for a period of 10 days, that is, through
February 28, 2005.  

In acting favorably on this unopposed request for emergency cabotage
authority, we find that Polynesian Limited’s request meets all the
relevant criteria of 49 U.S.C. § 40109(g) for the grant of an exemption
of this type, and that such favorable action is required in the public
interest.  The devastation created by Cyclone Olaf, and the resulting
need for emergency air carrier service specifically invoked by the
Government of American Samoa, clearly constitute an emergency created by
unusual circumstances not arising in the normal course of business.  In
addition, the record in this case indicates that, under these unique
conditions, the sole U.S. carrier serving the market cannot accommodate
the requisite passenger or cargo lift necessary to meet the needs of
American Samoa, a community uniquely dependent on air transportation. 
Further, in our view, the conduct of the passenger and cargo services
proposed by Polynesian Limited is required to prevent further hardship
to the residents of American Samoa.

Given these circumstances, we find that the standards for grant of
emergency cabotage authority have been met, and that grant of the
authority requested by Polynesian Limited, through February 28, 2005, as
conditioned, is warranted.

Finally, we find that the applicant is qualified to perform the
authorized operations.

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

Action taken by:	

								

Karan K. Bhatia

Assistant Secretary

for Aviation and International Affairs

An electronic version of this document is available on the World Wide
Web at:

  HYPERLINK "http://dms.dot.gov//reports/reports_aviation.asp" 
http://dms.dot.gov//reports/reports_aviation.asp 

FOREIGN CARRIER EXEMPTION CONDITIONS                                    
                              ATTACHMENT

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 applicable requirements of the Federal Aviation
Administration, including, but not limited to, 14 CFR Parts 129, 91, and
36, and with all applicable U.S. Government requirements concerning
security, including, but not limited to, 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 Principal Security Inspector (IPSI) to advise
the IPSI 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
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 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 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 “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 authorized 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 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 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 when 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.                    
                                                                        
       						 

 05/2004

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