Order 2013-9-22

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

Issued by the Department of Transportation

on the 30th day of September, 2013

Served: September 30, 2013

Application of

FLY JAMAICA AIRWAYS LIMITED Docket DOT-OST-2013-0136

for an exemption under 49 U.S.C. §40109

Application of

CARIBBEAN AIRLINES LIMITED Docket DOT-OST-2013-0140

for an exemption under 49 U.S.C. §40109

ORDER DENYING EXEMPTIONS

Summary

By this order we deny the requests of (1) Fly Jamaica Airways Limited (Fly Jamaica), a foreign air carrier 

of Jamaica, and (2) Caribbean Airlines Limited (CAL), a foreign air carrier of Trinidad and Tobago, for 

exemptions under 49 U.S.C. §40109 for extrabilateral authority to conduct seventh-freedom combination

turnaround services between New York, New York (JFK), and Georgetown, Guyana.

Applications

By application filed July 16, 2013, Fly Jamaica requests an exemption under 49 U.S.C. §40109 for a period 

of one year to engage in scheduled foreign air transportation of persons, property, and mail between New 

York (JFK), and Georgetown, Guyana. Fly Jamaica states that it is a flag carrier of Jamaica that holds a 

foreign air carrier permit issued by Order 2013-2-25, authorizing it to engage in scheduled foreign air 

transportation of persons and property from a point or points behind Jamaica via Jamaica and intermediate 

points, to a point or points in the United States and beyond. Fly Jamaica states that it currently provides 

scheduled combination services between New York (JFK) and Kingston, Jamaica, using B-757 aircraft. 
Fly Jamaica states that comity and reciprocity between Jamaica and the United States supports approval of 

its New York (JFK)-Georgetown service request, even though such service is not provided for under the 

U.S.-Jamaica Open Skies agreement. Fly Jamaica asserts that there is sufficient demand for New YorkGuyana services and that no U.S. carrier currently serves the New York-Georgetown market. Fly Jamaica 

also asserts that it has been designated as a flag carrier of Guyana, and submitted as part of its application a 

letter from the Government of Guyana confirming its claim. 

By application filed July 18, 2013, CAL requests an exemption under 49 U.S.C. §40109 for a period of one 

year to engage in scheduled foreign air transportation of persons, property, and mail between New York, 

New York (JFK), and Georgetown, Guyana. CAL states that it is a flag carrier of the Republic of Trinidad 

and Tobago and notes that it holds from the Department exemption authority authorizing it to conduct 

various services between Trinidad and Tobago and Jamaica, on the one hand, and various U.S. points, on 

the other hand. 

CAL acknowledges that its instant application is extrabilateral in nature because it is beyond the scope of 

the services provided for in the U.S.-Trinidad and Tobago Air Transport Agreement, and it makes a number 

of claims to support its extrabilateral request. Its primary assertion is that there is a compelling need for it 

to initiate direct transportation between New York and Georgetown. CAL states that it is the only carrier 

currently providing New York-Georgetown service (with Georgetown as an authorized intermediate/behind 

point) on two flights, with the first flight a B767 operating four times weekly over a Port of SpainGeorgetown-New York routing, and the second a B737 operating daily over a Georgetown-Port of SpainNew York routing. CAL cites its market share and load factors on its current flights and contends that, if 

permitted to operate seventh-freedom turnaround New York-Georgetown services, it can eliminate the 

unproductive Port of Spain-Georgetown segment, allowing it to increase its frequency, market share, and 

load factors, while potentially reducing fares on the New York-Georgetown route. CAL further asserts that 

it has been granted flag-carrier status from the Republic of Guyana and submitted as part of its application 

a letter from the Government of Guyana confirming its claim. CAL also states that its request is limited in 

scope and duration, and that its proposed service would not impact U.S. carriers, as there is currently no 

U.S. carrier providing service in the city-pair market at issue.

Responsive Pleadings

The Air Line Pilots Association (ALPA) and Airlines for America (A4A) each filed consolidated 

objections to the applications of Fly Jamaica and CAL. Fly Jamaica and CAL filed replies.

ALPA asserts that the requests of Fly Jamaica and CAL are extrabilateral, and that the Department should 

deny the applications. ALPA further asserts that CAL’s operations are being subsidized by the government

of Trinidad and Tobago. In this regard, ALPA cites a press article in which Trinidad and Tobago’s Finance 

Minister is reported to have acknowledged a $40 million fuel subsidy paid to CAL in 2012.1

 ALPA asserts 

that a foreign subsidy of the alleged type would impede the ability of U.S. carriers to compete. 

A4A states that CAL’s seventh-freedom operations and alleged fuel subsidies negatively impact U.S. 

carriers’ ability to compete. A4A argues that instead of granting CAL or Fly Jamaica extrabilateral 

seventh-freedom exemption authority, the Department should focus on the resolution of various doingbusiness issues that affect U.S. carriers in the Caribbean region. 

 1 ALPA Answer, at 5 and Exhibit B.
In its reply to A4A, CAL essentially restates the reasons it provided in its application supporting its 

contention that grant of its request would be in the public interest. In its reply to ALPA, CAL compares its 

current request with the Department’s grant of extrabilateral exemption authority for CAL to serve between 

New York and Grenada.2 CAL asserts that since it is the only carrier serving the Georgetown-New York 

route, that there is a compelling need for CAL to continue and expand its services.

Fly Jamaica asserts that denial of its application would result in the continuation of anti-competitive 

conditions whereby CAL is the only carrier providing nonstop service in the New York (JFK)-Georgetown 

market. Fly Jamaica further asserts that the majority of the arguments raised by ALPA and A4A pertain 

exclusively to the application of CAL and to the government of Trinidad and Tobago.

Decision

We have decided to deny the requests of CAL and Fly Jamaica for extrabilateral seventh-freedom 

combination turnaround exemption authority to serve between Georgetown and New York. 

In considering foreign air carrier requests for extrabilateral authority, the Department weighs various

criteria specific to the type of extrabilateral request, as well as any other factors that are germane to a 

particular case. With respect specifically to requests for extrabilateral seventh-freedom turnaround service, 

we have historically viewed such requests as extraordinary and have granted such authority only when the 

circumstances presented on the record in individual cases show compelling public interest considerations.

In this regard, we have established several criteria to determine whether such authority would be in the 

public interest in a given case. Specifically, we must conclude that (1) a demonstrable need for the service 

exists, (2) there would be a negligible impact on U.S. flag carriers, and (3) the proposed operation is limited 

in scope.

Against that background, we have reviewed the applications of CAL and Fly Jamaica and determined that 

we cannot make the necessary public interest finding. In this case, the Open-Skies Agreements that we 

have in place both with Jamaica and with Trinidad and Tobago provide rights for licensed carriers of both 

countries to conduct fifth-freedom services with full traffic rights on all segments.3 Indeed, such rights are 

currently being exercised by CAL to transport Georgetown-New York traffic on its existing two flights 

referenced above.4 Furthermore, Fly Jamaica has begun serving the Georgetown-New York market on a 

one-stop basis via Kingston, Jamaica. In light of these existing Georgetown-New York services and the 

lack of a showing by the applicants on the record that there is a truly demonstrable need for additional 

Georgetown-New York services, we are unable to find that the CAL and Fly Jamaica seventh freedom 

turnaround proposals satisfy our public interest test for the type of extraordinary authority at issue.

5 6

 We 

will, therefore, deny the applications of CAL and Fly Jamaica.

7

 2 See Notice of Action Taken dated February 10, 2011, in Docket DOT-OST-2010-0232. 3 While we note that CAL and Fly Jamaica cite the support and designations of the Government of Guyana, we do not find that 

those circumstances change the fundamental nature of the proposed operations in such a way that we would regard them as other 

than seventh freedom turnaround services for the applicant carriers. 4 We view the Grenada-New York case cited by CAL as inapposite. In that case, the Grenada-New York market stood to lose 

substantial service with the cessation of Air Jamaica. In granting the authority to CAL, the Department noted, among other 

things, that permitting CAL to serve the route would facilitate a seamless transition from Air Jamaica to CAL and would 

minimize disruption to the travel plans of passengers and shippers. 

5 Because we do not find that FlyJamaica and CAL have established that there is a demonstrable need for the services, we need 

not reach the question of whether the CAL and Fly Jamaica requests satisfy the additional criteria referenced above.
Our action is being taken under assigned authority (14 CFR §385.13). Persons entitled to petition the 

Department for review of this action under the Department’s regulations, 14 CFR §385.30, may file their 

petitions within seven days of the date of this action. This action is effective immediately, and the filing of 

a petition for review will not alter its effectiveness.

ACCORDINGLY,

1. We deny the request of Fly Jamaica Airways Limited for an exemption under 49 U.S.C. §40109, to 

engage in scheduled foreign air transportation of persons, property, and mail, on a seventh-freedom 

turnaround basis, between New York, New York and Georgetown, Guyana;

2. We deny the request of Caribbean Airlines Limited for an exemption under 49 U.S.C. §40109, to engage 

in scheduled foreign air transportation of persons, property, and mail, on a seventh-freedom turnaround 

basis, between New York, New York and Georgetown, Guyana; and

3. We will serve a copy of this order on Fly Jamaica Airways Limited; Caribbean Airlines Limited;

Airlines for America; the Air Line Pilots Association; the Embassy of Jamaica in Washington, D.C.; the 

Embassy of the Republic of Trinidad and Tobago in Washington, D.C.; the Department of State; and the 

Federal Aviation Administration.

By:

PAUL L. GRETCH

Director

Office of International Aviation

(SEAL)

Appendix

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

http://www.regulations.gov

 6 We acknowledge the concerns raised by ALPA and A4A pertaining to fuel subsidies paid to CAL; however, we have been 

advised through diplomatic channels that those subsidies have already ceased or will soon cease. We will continue to monitor 

this situation.

7 Nothing in our present action will preclude CAL from continuing its current services over Port of Spain-Georgetown-New 

York and Georgetown-Port of Spain-New York routings. Nor will this action preclude Fly Jamaica from continuing its

Georgetown-Kingston-New York services.