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OST-2009-0311 - CSI Aviation Services - Emergency Exemption - GSA Contract
2009-1307 - Grant of a Petition - CSI Aviation Services v. DOT - Opinion On Petition for Review on an Order - US Court of Appeals for DC Circuit, April 1, 2011
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OST-2009-0311 - Emergency Exemption - General Services Administration Contract GS-33F-0025V November 25, 2009 Application for an Emergency Exemption CSI Aviation Services, Inc. hereby applies for an emergency exemption from 49 USC § 41101 and 14 CFR parts 212 and 380, to the extent necessary to continue to perform under General Services Administration Contract GS-33F-0025V, Special Item Number 599-5, Air Charter Services–Brokers. Grant of CSI’s request for an emergency exemption is a justified departure from the normal exemption application procedures (1) because of the immediate need of the USG to obtain commercial charter and related services for both domestic and international mission-related travel and transportation and the inadequate availability of current services from SIN 599.4 air carriers; and (2) because although CSI is performing Task Orders under the GSA schedule pursuant to the Department’s temporary authorization, the Department has also prohibited CSI from entering into future USG contracts. If CSI cannot offer its services to meet USG agencies’ needs in the near future, those needs may be unmet. Counsel: Vedder Price, David Hernandez, 202-312-3340
December 1, 2009 CSI Aviation Services, Inc. hereby amends its Application for an Emergency Exemption to provide for responses within fifteen days of filing CSI’s Application. Accordingly, Answers to CSI Application must be filed on or before December 10, 2009, consistent with Rule 307. Counsel: Vedder Price, David Hernandez, 202-312-3340
December 4, 2009 Re: Answer of Capital Aviation in Support Capital Aviation, Inc. answers in support of granting the above-captioned application by CSI Aviation Services, Inc. for an emergency exemption as being in the public interest, and further supports the request for expedited action in light of applicable facts and circumstances. CAl requests, pursuant to Rule 310, that the exemption sought in the Application be broadened by the Department to include all air charter brokers now or hereinafter qualified on the GSA Schedule, SIN 599.5 (or any successor schedule), to have the benefit of the exemption if and to the extent granted. Counsel: Wiley Rein, Gregory Cirillo, 703-905-2800
December 11, 2009 Answer of Falcon Air Express in Support Falcon and the Applicant have a proven history of reliable operations for missions contracted with US Immigration and Customs Enforcement. The US General Services Administration is a large and sophisticated commercial buyer. The consumer protections of Part 380 are superfluous to this transaction. The GSA, on behalf of DHS/ICE, has chosen the Applicant to operate these flights. Counsel: King & Spalding, Thomas Spulak, 202-661-7948
December 10, 2009 Re: Answer of Global Avaition Holdings in Oppposition Global Aviation Holdings Inc. is the parent company of both World Airways and North American Airlines. Global Aviation strongly opposes the application of CSI Aviation Services, Inc. for an emergency exemption requesting authorization to contract with the US Government to provide air transportation services. CSI's petition squarely presents the Department with the most fundamental issue of aviation regulation: who should be permitted to sell air transportation services? Except for very limited and carefully circumscribed exceptions, the Department's answer has been: certificated air carriers. CSI has not presented the Department with any compelling reason for extending to charter brokers the right to sell air transportation, even under the relatively narrow circumstances described by CSI. By: Robert Binns
December 10, 2009 Re: Answer of Miami Air in Opposition We must conclude that (a) the Application for emergency exemption should be denied because no emergency is shown, (b) the Application does not comply with procedural standards for an application for exemption, (c) the Application does not establish a factual or policy basis for creating a new charter form by exemption from very long-established and well considered charter regulations, and (d) the Application does not establish a public interest basis for such a broad, new grant of authority. Counsel: James Tello, 202-399-1918
December 10, 2009 Re: Answer of National Air Carrier Association in Opposition Concerning this CSI application, it must be denied immediately, and any DOT temporary permissions for CSI to remain on contracts must also be terminated immediately. DOT and other government agencies with cause under Federal Acquisition Regulations dealing with misrepresentation must take whatever sanctions necessary to serve justice required by the many infractions of regulations and laws. By: NACA, Ronald Priddy
December 10, 2009 Re: Answer of Omni Air International in Opposition There is no emergency. Ample air transport capacity exists to meet the foreseeable needs of all US Government agencies. CSI is a broker and has no aircraft of its own. The suggestion that government needs may go unmet if CSI is disqualified from bidding for USG contracts is not supportable. Omni Air International requests that the Department deny the Application as unsupported. Counsel: McGovern & Smith, Carl Smith, 202-955-6062
December 10, 2009 Re: Answer of Ryan International Airlines in Opposition Ryan International Airlines, Inc., a certificated air carrier which has provided frequent charter air transportation to US Government agencies by way of Special Item Number 599-5 (via a charter broker) and directly under SIN 599-4, strongly supports the objection of the National Air Carrier Association to the application ofCSl Aviation Services, Inc. for an emergency exemption. For the reasons set forth by NACA, Ryan urges the Department to deny CSI's application. By: Ryan, Mark Robinson, 815-387-3200
December 8, 2009 Re: Comments of Sun Country Airlines in Opposition The Application should be denied because Applicant is a broker and not a direct air carrier under the Department's rules. Applicant cites language in the GSA contracting procedures that allows brokers to bid on the GSA contracts. Since government contracts are not "public charters" under the Department's rule, there is no reason for the Department to grant this "emergency" request and, thereby, vary from its long established practice of clear separation of roles between direct air carriers and brokers. While the apparent genesis of this Application is a lack of symmetry between GSA bidding procedures and Department charter regulations, the solution proposed by the Applicant would have the unintended consequence of confusing the public and the air transportation industry about the distinctions between air carriers and brokers. A more appropriate solution would be a modification to GSA bidding procedures to require that contracts negotiated by brokers be issued in the name of the direct air carrier, and that funds be deposited with the direct air carrier. There would be no need to modify the current Department rules and regulations in that case. Since the Department does not have direct jurisdiction over GSA contracting procedures, this request for exemption is simply filed with the wrong governmental agency. By: Sun Country, John Fredericksen, 651-681-3948
December 9, 2009 Re: Answer of Sundowner Oklahoma City Sundowner urges the Department not to act on the piecemeal basis requested by CSl. Instead, Sundowner urges the Department to promulgate an across-the-board regulatory solution in an expedited manner. Clearly the best way to achieve a fair, industry-wide solution would be for the Department to initiate an expedited rulemaking proceeding to establish requirements (lAC or otherwise) tailored to the government broker community at a minimum, if not the broader broker community. Such a proceeding would afford interested parties an opportunity to be heard in response to a concrete DOT proposal. It would also allow the Department to establish, in the first instance, regulatory conditions adapted to the Department's particular concerns regarding government brokers. Only in this manner can the competing interests of brokers, air carriers, government agencies and the public be fully aired, evaluated and balanced to achieve an optimal solution. If implemented in a timely fashion and carried out on an expedited basis, such a proceeding could be completed by April 15, 2010. In short, the public interest requires that such rulemaking be initiated and completed as soon as possible. Parenthetically, in the event the Department finds itself disposed to grant CSI the relief it requests, DOT should consider granting blanket relief to all SIN 599-5 Brokers. While such an exemption would not provide stakeholders an adequate opportunity for meaningful comment, it would be superior to the piecemeal relief sought by CSI. Counsel: Garofalo Goerlich, Aaron Goerlich, 202-776-3970
December 10, 2009 An exemption is a totally improper mechanism to properly consider the unprecedentedly-broad relief sought by CSI, and now other brokers. The function of brokers, iflawfully conducted, provides a valid service in the market. However, CSI seeks nothing short of a fundamental change in the complex and comprehensive regulatory scheme which has governed direct and indirect air carriers for literally decades, which scheme involves the fundamental and stringent safety and economic requirements of a number of federal agencies, including DOT, FAA and TSA. The serious issues raised by CSI and other brokers herein should properly be considered as part of a rule-making proceeding and the instant application for emergency exemption should be dismissed. Counsel: Pierre Murphy, 202-776-3980
December 10, 2009 Answer of Xtra Airways in Support of Application Xtra operates occasional government charters under contract to CSI, primarily on behalf of Immigration and Customs Enforcement. Xtra believes that CSI in this respect performs an important service to GSA and to the public in general. It is, nonetheless, important for the Department to ensure that brokers do not hold themselves out in such a way as to cause confusion to the public as to their nature. The Department is aware of the many cases of sales agents, charter operators and brokers who attempt to pass themselves off as direct carriers, causing harm and confusion to passengers. However, the relief framed by CSI is very narrow - limited to a specific GSA contract. It is not seeking authority to hold out generally as a principal. Xtra agrees with CSI's assessment that it is inconceivable that the one customer at issue here - the General Services Administration - would be confused as to the nature of CSI and the services it is authorized to provide. Counsel: Sher & Blackwell, Mark Atwood, 202-463-2513
December 17, 2009 Consolidated Reply of CSI Aviation to Opposing Parties' Answers It is important to stress that CSI’s request for an exemption is pursuant to a GSA contract award arising from GSA’s Solicitation QMAD-CY-090001-B for brokers and air carriers. GSA concluded that brokers are necessary for the purposes of offering competition to the USG for air transportation services under a GSA Schedule. None of the Opposing Parties submitted a bid protest when GSA issued the RFP challenging the solicitation of brokers, as they had the opportunity to do so. CSI’s participation, along with the other brokers, under SIN 599-5 is desperately needed to maintain competition in the GSA Schedule process. Specifically, Miami Air’s and NACA’s assertion that ample lift is available to support the USG’s needs is a gross misrepresentation and absurd; otherwise GSA would not have requested solicitations from brokers. Despite the Opposing Parties opposition to the CSI application, with the exception of Miami Air, none of NACA’s members or the Opposing Parties are listed on SIN 599-4. Despite their dire predictions of brokers who enter into contracts as principals with the USG when a serious need exists, none of the Opposing Parties explain why they steadfastly refused to offer services through the GSA schedule. This is simply an illustration of these Opposing Parties trying to eliminate competition (among other air carriers) and why the Department should approve CSI’s exemption. Contrary to the several of the Opposing Parties’ exaggerated claims that CSI’s request constitutes a broad sweeping change that would be unsafe and disastrous for air transportation, CSI’s request for an exemption is narrowly tailored and limited to USG contracts, meeting the USG requirements, and consistent with the explicit terms and conditions of SIN 599-5. Significantly, all air transportation will be performed by GSA-approved air carriers with the requisite FAA safety certifications and DOT economic authority or applicable DOT exemptions in accordance with the GSA Schedule or the relevant USG agency task order. It is offensive that anyone would make such an unsubstantiated inference that air carriers will operate less safely when operating under SIN 599-5. If that was indeed the case, the air carrier should have its air carrier certificate revoked on an emergency basis. Furthermore, CSI has used Sun Country, North American (Global Aviation), Omni Air, Ryan International, and Miami Air under its GSA schedule within the last 24 months, and all were paid up front. Also, Omni Air, Sun Country, and North American have provided CSI with letters allowing them to bid their aircraft under GSA and they were subsequently approved by GSA. Counsel: Vedder Price, David Hernandez, 202-312-3340
December 17, 2009 UGSA hereby expresses its support for the general principles upon which CSI premises its application for an exemption. GSA is providing this Reply because it appears to be the position of the Department of Transportation that such an exemption is required in order for CSI to continue its performance of GSA Multiple Award Schedule contract GS-33F-0025V Special Item Number 599-5, Air Charter Services - Brokers. and any follow-on contracts. blanket purchase agreements. and task orders related thereto. By: Office of Acquisition Operations, Rebecca Koses
December 22, 2009 Re: Comments of National Business Aviation Association In light of NBAA’s continuing interest in the role of air charter brokers, the Association agrees with Sundowner that CSI’s application presents an ideal opportunity for an industry-wide solution, through expedited rulemaking, for authorizing brokers to act as indirect air carriers of passengers. NBAA’s concern—and the principal reason for these comments—is that any rulemaking proceeding that would establish an IAC category of broker should be sufficiently broad in scope to include brokers utilizing business aircraft, consistent with the NBAA initiative discussed above. It would be inefficient, and therefore not in the public interest, for a rulemaking proposal to be limited to the large aircraft (737s, DC-10s, etc.) typically utilized in the GSA contracting arrangement. By: NBAA, Mike Nichols
December 22, 2009 Re: Reply of Air Charter Association of North America ACANA respectfully urges the Department to carefully examine the issues raised in this proceeding and develop a solution that allows Federal Government agencies to continue to contract with air charter brokers to arrange air transportation on the agencies’ behalf and in a manner that is consistent with the Department’s statutory obligations and regulatory responsibilities. ACANA believes the Department could, as a matter of enforcement policy and in a manner similar to its 2004 Notice, re-examine the narrowly circumscribed broker activities specified in SIN 599-5 and establish an enforcement “safe harbor” by which brokers could continue to provide their valuable services to the Federal Government while ensuring that the Department’s concerns are addressed. If the Department does not believe that its concerns can be adequately addressed with such a tailored notice, however, then it should initiate an expedited rulemaking proceeding that would create a rule for brokers as indirect air carriers providing brokerage services to the Federal Government under SIN 599-5 in a manner similar to that maintained by the Department for freight forwarders in 14 CFR Part 296. Such a rulemaking proceeding would, to be effective, need to be completed and in place by the April 15, 2010, deadline, which may not be possible. In that event, ACANA would urge that the Department either extend the April 15 deadline until the final rule is issued and becomes effective or, using its authority to exempt the six brokers listed on SIN 599-5 from the licensing requirements of 49 USC § 41101, permit these brokers to continue to arrange air transportation on behalf of the Federal Government and until the final rule is issued and becomes effective. By: ACANA, Scott Bickford, 603-890-0044
December 28, 2009 Re: Motion for Leave to File an Otherwise Unauthorized Document and Response of Miami Air In judging what criteria might - hypothetically -- be required, it is well to recall that these unauthorized indirect air carriers compete directly with DOT certificated air carriers for government contracts. Accordingly, there is every reason to judge them by the exact same criteria as for a certificated direct air carrier. If the Department focuses on that fact, it will recognize the burdensome nature of the task involved in properly authorizing this class of indirect air carrier to perform functions that are entirely unnecessary and risk laden, and it will deny all relief to the applicant. Counsel: James Tello, 202-399-1918
December 29, 2009 Re: Motion of CSI Aviation to Dismiss Unauthorized Filings NACA’s Christmas Eve Unauthorized Document is nothing more than an early Christmas present for Miami Air. It is painfully obvious that NACA hopes to give Miami Air a GSA monopoly while they claim they represent several carriers, none of which are on GSA except Miami Air. In its Unauthorized Document, NACA claims good cause exists because “CSI and GSA raise significant new issues in public law, federal regulations and public policy.” However, nothing in NACA’s Unauthorized Document constitutes good cause for Department to consider the Unauthorized Document. On the contrary, NACA’s Unauthorized Document is nothing more than a GSA, DHS/ICE and CSI bashing rant overflowing with misrepresentations and over-the-top declarations urging the Department to “staunchly defend its regulatory turf” and explaining how it “strenuously disagree” with the GSA’s actions. Miami Air’s Unauthorized Document should also be dismissed because it is untimely Miami Air filed its Unauthorized Document four days late on December 28, 2009, and therefore the filing is not only unauthorized, but it is also untimely, and should be dismissed. CSI also finds it troubling that Miami Air intentionally failed to serve its Answer and its Unauthorized Document on the GSA, which is certainly an Interested Party in this matter, contrary to the Department’s Rules. Counsel: Vedder Price, David Hernandez, 202-312-3340
December 31, 2009 Re: Answer of Miami Air to Motion by CSI Aviation to Dismiss Among other things, CSI bases its motion upon the assertion that Miami Air's motion for an otherwise unauthorized document was filed out of time. As may be noted, Miami Air's motion was filed on December 28, 2009, pursuant to Rule 6(c) in response to the CSI consolidated reply dated December 17, 2009, that was posted by the Department on December 22, 2009. The time for filing such a motion is within seven days of the document to which it seeks to respond. The remainder of CSI's "motion to dismiss" is comprised of repetitive or irrelevant matters to which no further response is necessary. Counsel: James Tello, 202-399-1918
February 12, 2010 Re: Letter from General Counsel at DOT to General Counsel at GSA I am writing to bring to your attention a matter currently pending in the Department of Transportation that arises out of a General Service Administration schedule, Special Item Number (SIN) 599.5, Air Charter ServicesBrokers, and to obtain information from GSA that would be helpful in our resolution of that matter. Given the centrality of the GSA process to CSI's pending exemption application, we want to be certain that our decisional record contains a clear and definitive formal statement of GSA's position on that application. Furthermore, given that whatever decision we might reach could have implications beyond the CSI application before us, we would ask that you address the broader question of whether broker services are essential to GSA's mission of procuring airlift for the Federal government or whether GSA has other means to accomplish this mission. Finally, we would of course welcome any other comment that you believe is pertinent to our decision making in this case. We would appreciate your response within 10 days of receipt of this letter. By: Robert Rivkin
March 1, 2010 Re: Information Response of General Services Administration You asked whether air charter broker services are essential to GSA's mission of acquiring airlift for the Federal Government. Each Federal agency establishes its requirements and procures the services it needs through a variety of methods, including GSA's MAS contracts. 80th GSA and DOT, however, are very aware of one recent example of Federal Government use of air charter broker services via G$A's contracts - supporting the Federal Government's relief effort in Haiti. Executing that mission in the expeditious and efficient manner directed by the President, GSA's customer agencies immediately turned to SIN 599-5 to leverage the flexibility and efficiency of the air charter brokers. Recognizing that this Federal mission required agencies to have access to air charter broker services, DOT issued an Order Granting Emergency Exemption on January 14, 2010, for a period of 30 days, to ensure that vendors on SIN 599-5 were available to support that particular effort. To that same end, DOT issued an Order Extending Emergency Exemption on February 12, 2010, extending the exemption another 30 days. This example demonstrates how a critical need is sometimes met only via air charter broker services. It is this Agency's understanding that, in the Haiti emergency, owner operated air charter service simply did not meet the Federal Government's requirement - for example, due to the need for small aircraft as a result of post earthquake conditions in Haiti. By: GSA, Kris Durmer
Served March 3, 2010 Notice Accepting Comments - Revised On February 12, 2010, the Department requested additional information from the General Services Administration regarding the application of CSI Aviation Services, Inc. for an exemption to conduct certain broker services for GSA. On March 1, 2010, GSA responded to the Department’s letter. To ensure a complete record, we are providing an opportunity for interested parties to submit comments to GSA’s submission. Such comments shall be submitted no later Friday, March 5, 2010. Given the extensive record already present and the public interest in resolution, we would not be favorably disposed to receiving additional pleadings beyond that date. By: Paul Gretch
March 5, 2010 Re: Comments of Capital Aviation in Support of GSA CAl concurs with and supports the GSA Statement and shares GSA's views that: (a) the role of the DOT in protecting the economic interests of the general public is superfluous when applied to contracting activities by agencies of the U.S. Government, and (b) the overlay of DOT oversight and approval can result in delays and restrictions on the deployment of air services resources with no apparent need therefor, and with no benefit flowing therefrom. In GSA's words, "Acquisition by the Federal Government ... is distinct in several ways from acquisitions in the private sector and does not present the consumer protection related concerns at issue in the private sector." GSA Statement at p. 1. We urge the DOT to consider and adopt that distinction in its actions relating to the Application. Counsel: Wiley Rein, Gregory Cirillo, 703-905-2800
March 5, 2010 Re: Objection Comments of Global Aviation Holdings Global Aviation strongly objects to the statement in the penultimate paragraph of GSA's letter that it would support action by the Department permitting "charter brolcers to continue to perform their GSA MAS contracts as well as contracts the brokers may have with other Federal agencies." It is entirely inappropriate, and outside the scope of DOT's request for its input, for GSA to comment on what the procurement practices of other Federal Government agencies should be with respect to the eligibility of charter brokers to bid on air transportation services contracts. As GSA itself acknowledges, "[e]ach Federal agency establishes its requirements and procures the services it needs through a variety of methods." Each agency therefore needs to make its own detennination as to tl:e role charter brokers should or should not play in the procurement of its airlift requirements. It is presumptuous of GSA, at the very least, to suggest that charter brokers should have the ability to contract as principals in connection with the procurement procedures of other Federal Government agencies, of which GSA may know nothing about. DOT did not ask for input from GSA on any procurement practices other than its own, and any comments GSA has made regarding its prescription for other Federal Government agencies should be disregarded. By: Mark McMillin
March 5, 2010 Re: Response of CSI Aviation to GSA CSI strongly supports GSA’s position that “Acquisition by the Federal Government, however, is distinct in several ways from acquisitions in the private sector and does not present the consumer protections related concerns typically at issue in the private sector." CSI submits that GSA is a better authority regarding the protections afforded to the Federal Government under the FARs than DOT and therefore DOT should defer to GSA regarding whether DOT regulations concerning public charter protections should apply to GSA Federal government contracts. The two parties should meet face-to-face (as GSA suggests) to resolve the matter on a permanent basis. Counsel: Vedder Price, David Hernandez, 202-312-3340
March 5, 2010 Re: Comments of the Air Charter Association-NA to Submission of GSA ACANA hopes that DOT will carefully consider GSA’s specialized experience in this matter, and heed GSA’s measured call to allow air charter brokers to continue performing under their GSA contracts, as well as contracts that brokers may have with other Government agencies. In this regard, and as ACANA has previously proposed, the Department should forthwith: (1) issue a blanket exemption allowing air charter brokers to continue to arrange air transportation on behalf of the Government under SIN 599-5, or, alternatively: (2) institute an expedited rulemaking to define a role for brokers as indirect air carriers providing brokerage services to the Government under SIN 599-5. In either event, it is imperative that DOT act as soon as possible before the April 15, 2010 cease and desist deadline it has imposed on each of the brokers listed on SIN 599-5, or extend that deadline pending a final resolution of the matter. Counsel: ACA-NA, Scott Bickford, 603-890-0044
Order 2010-3-21 Issued and Served March 16, 2010 By this order, we tentatively grant the request of the aviation broker CSI Aviation Services, Inc. for exemption authority to engage in domestic and foreign indirect air transportation of persons, property and mail pursuant to contracts arranged under the General Services Administration Schedule Special Item Number 599-5, Air Charter Services-Brokers. We are also tentatively granting this authority to other aviation brokers listed on GSA Schedule SIN 599-5, and those that may be so listed in the future. We find that our tentative action here is consistent with other Department actions involving our licensing of other indirect air carriers. Specifically, we have previously authorized indirect air carriers of both passengers and cargo to conduct operations in air transportation. In those instances, we have imposed consumer protection safeguards where appropriate. Under the circumstances presented in this proceeding, we do not regard such safeguards as necessary. GSA has emphasized that acquisition by the Federal Government is distinct from acquisition in the private sector and does not present the consumer-protection-related concerns typically at issue in the private sector. Specifically, GSA’s March 1 submission fully discusses the rules and protections that govern GSA’s procurement of air services. We are satisfied, given the narrow scope of the authority that we are tentatively issuing, to rely on those safeguards here. Several parties suggested that this matter should be handled by rulemaking. The Department anticipates initiating a rulemaking that will cover the broader area of aviation brokers generally. We tentatively do not find that it is in the public interest to withhold action on CSI’s narrowlyfocused exemption application or on the award of like exemption authority to other similarly situated brokers pending completion of a broader rulemaking proceeding, as such action would withhold the valuable public benefits that the services of CSI and other brokers provide to the U.S. Government. Nor will the action here be considered in any rulemaking developed on this matter. We direct any interested parties having objections to our tentative findings and conclusions set forth in this order and ordering paragraphs 1 through 2, to file their objections, in the above-captioned docket, with the Department no later than Friday, March 19, 2010. By: Susan Kurland
March 18, 2010 Re: Objection of Capital Aviation to Tentative Findings and Conclusions in Order to Show Cause There is no legal or rational basis for regarding the United States Government or any agency thereof as the "general public" to support the critical determination barring brokers from arranging Part 125 air services as pronounced in footnote 9 of the SCQ. The United States Government is not the general public. The offer or provision of air transportation to the United States Government cannot be holding out to the general public. Therefore, the Department, whose authority is limited to entities engaged in the provision of air transportation, i.e., common carriage, has no jurisdiction to assert restrictions on either broker activities or activities of Part 125 commercial operators serving the United States Government in response to requests for services from the United States Government. Counsel: Wiley Rein, Gregory Cirillo, 703-905-2800
March 19, 2010 Re: Objections by Miami Air to Order to Show Cause Miami Air International, Inc. hereby (1) opposes the issuance of a final order authorizing brokers to operate as indirect air carriers for GSA contracts or, (2) if the Department were to issue such authority nevertheless, Miami Air opposes the inclusion of FAR 125 carriers within that exemption for air transportation under the specified GSA schedule. Counsel: James Tello, 202-399-1918
March 23, 2010 NACA continues to object to the approval of the CSI application for all the reasons previously stated. We have grave concerns with the apparent claim by the General Services Administration that Federal Acquisition Regulations take precedence over DOT’s authority to require certification prior to holding out to the public. We do not believe it is in the public interest to grant indirect air carrier status to brokers for government charters until public hearings are held to review GSA’s claims. However, as the Order to Show Cause is final in reference to those issues, we will pursue those concerns through other avenues available to us. NACA fully supports the Department’s language in Order 2010-3-21 that states, “The brokers may only enter into agreements with air carriers that hold the requisite authority to engage in air transportation” and footnote 9, which further clarifies that brokers may not enter into agreements with “carriers” operating under 14 CFR Part 125. While Part 125 operators are not “carriers”, the Department does clarify their intent with that footnote. We respectfully request the following steps by the Department: (1) continue to investigate both prior and existing violations of DOT and FAA regulations revealed in the CSI application and Capital Aviation’s objection; (2) hold those responsible who are clearly in violation; (3) cause GSA to modify the language of SIN 599-5 to clarify the details of the new Order 2010-3-21; and, (4) cause GSA to distribute training materials through its web site for agency contract officers and persons attempting to contract with GSA to provide air transportation. By: NACA, Oakley Brooks, 703-358-8060
Order 2010-4-7 Issued and Served April 14, 2010 By this Order, we make final our tentative findings set forth in Order 2010-3-21 and grant an exemption from 49 USC § 41101 and applicable Department regulations to air charter broker CSI Aviation Services, Inc. to the extent necessary for CSI to engage in domestic and foreign indirect air transportation of persons, property, and mail pursuant to contracts with Federal government agencies arranged under the General Services Administration Schedule Special Item Number 599-5, Air Charter Services-Brokers. We also finalize our tentative decision to exempt to the same extent all other air charter brokers currently listed on GSA Schedule SIN 599-5, and all those that may be so listed during the term of this exemption authority. By: Susan Kurland
February 14, 2011 Application for Renewal of Exemption CSI Aviation Services, Inc. hereby requests renewal of the exemption authority granted to it by the Department of Transportation in the abovecaptioned docket to continue to perform under General Services Administration Contract GS-33F-0025V, Special Item Number 599-5, Air Charter Services–Brokers. Counsel: Vedder Price, David Hernandez, 202-312-3340
February 22, 2011 US General Services Administration in Support The US General Services Administration, Federal Acquisition Service, Office of Acquisition Operations hereby expresses its support for CSI Aviation Services, Inc.'s application for a renewal of its exemption from 49 USC § 41101 and 14 CFR Part 212 and 380. By: Rebecca Koses
Order 2011-3-8 Issued and Served March 3, 2011 By this order, we extend for an additional year, that is, until April 14, 2012, the exemption authority granted to CSI Aviation Services, Inc., to engage in interstate and foreign indirect air transportation of persons, property, and mail pursuant to contracts arranged under the General Services Administration Schedule Special Item Number 599-5, Air Charter Services-Brokers. We are also extending this exemption authority to other air charter brokers listed on GSA Schedule SIN 599-5, and those that may be so listed during the period of this exemption.
By: Susan Kurland
Argued September 10, 2010 | Decided April 1, 2011 2009-1307 - Grant of a Petition - CSI Aviation Services v. DOT - Opinion On Petition for Review on an Order - US Court of Appeals for DC Circuit, April 1, 2011 Given DOT’s complete failure to explain its reading of the statute, we find it impossible to conclude that the agency’s cease-and-desist order was anything other than arbitrary and capricious, and hence unlawful. Where we “cannot evaluate the challenged agency action on the basis of the record before [us], the proper course . . . is to remand to the agency for additional investigation or explanation.” Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985). It appears to us that the law cannot support DOT’s interpretation, but we leave open the possibility that the government may reasonably conclude otherwise in the future, after demonstrating a more adequate understanding of the statute. For the foregoing reasons, the petition for review is Granted. By: Chief Judge Sentelle |
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