21 AIR LLC FILES ANSWER TO ALPA PETITION IN HOPES OF OBTAINING A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY
December 28, 2021
On Monday, November 1, 2021, 21 Air, LLC’s (“21 Air”) published its answer to the Air Line Pilots Association, International’s (“ALPA”) petition, in which ALPA requested that DOT review its decision to approve 21 Air’s certificate of public necessity for foreign charter cargo air transportation because it believed that 21 Air’s proposed operations would constitute illegal cabotage. In its answer, 21 Air requested immediate dismissal of the petition.
In late September, 21 Air filed an application for a certificate of public necessity for foreign charter cargo air transportation with DOT so that it could expand its fleet authorization from 5 aircraft to 10 aircraft, and so that it could expand its services and partners, which would include a more extensive relationship with Cargojet, a Canadian cargo carrier. In response, ALPA filed a petition with DOT on October 22, 2021, requesting reconsideration or review of its approval of 21 Air’s request in a public, docketed proceeding because the matter raised “novel and unprecedented public interest issues involving potential prohibited cabotage and violation of US ownership and control rules.” ALPA also alleged that in its view, DOT should question 21 Air to ensure that U.S. aviation regulations are upheld, as it believed 21 Air was attempting to violate rules requiring the prohibition of actual control of a U.S. carrier by a foreign entity and/or nationals and the rules prohibiting cabotage. ALPA followed this with a Supplement to its Petition on October 28, 2021, in which it submitted a letter from ALPA’s president to the Secretary of Transportation requesting that the Department review 21 Air’s petition again as it believed there is a potential “loophole” in DOT regulations that could allow cabotage by a foreign operator that has financial and operational control of a U.S. carrier.
In its answer, 21 Air put forth several arguments as to why the Department’s approval of its application was well founded, including:
(a) The fact that 21 Air is a U.S. company that is 75% owned by a U.S. citizen;
(b) The Department’s Fitness Office had already reviewed 21 Air and its transactions and found no issues warranting the denial of is application;
(c) ALPA was engaging in a “transparent and pernicious attempt to reduce American cargo capacity and jobs for U.S. pilots” even as the U.S. is currently facing supply chain issues and is about to enter the holiday season; and
(d) By expanding its fleet as it requested in its application, 21 Air was providing “important union jobs for American pilots.”
Following 21 Air’s answer, ALPA submitted a response on November 9, 2021, in which it requested that DOT require 21 Air to file additional documents and information to prove that 21 Air’s proposed operations would not involve prohibited cabotage or operations that would otherwise violate U.S. ownership and control rules. In response, 21 Air filed a reply on November 19, 2021, again alleging that its application had already been thoroughly reviewed by DOT and that ALPA’s claims were warrantless. DOT has yet to issue a decision concerning whether or not it will dismiss ALPA’s petition as requested by 21 Air.
If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com 202-659-6622) or Drew Derco (dderco@eckertseamans.com 202-659-6665).
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