Order 2010-9-14

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

Issued by the Department of Transportation

on the 10th day of September, 2010

Served: September 10, 2010

Application of

WHITE AIRWAYS, S.A. Dockets DOT-OST-2010-0071

 DOT-OST-2001-10210

for a renewed exemption under 49 U.S.C. §40109 and a

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

ORDER GRANTING EXEMPTION AND TO SHOW CAUSE

Summary

By this order we (1) grant the application of the referenced foreign air carrier for a renewed 

exemption under 49 U.S.C. §40109, subject to conditions;1and (2) tentatively find that it is in 

the public interest to grant the applicant the foreign air carrier permit attached as Appendix B 

to this order.

Background

By Notice dated May 3, 2007, we invited foreign air carriers of the European Union (EU) to 

apply for Department economic authority to conduct operations to and from the United States 

under the U.S.-EU Air Transport Agreement. In that Notice, we stated our intent to process 

requests for this authority under the “streamlining” procedures set out in our August 23, 2005 

Notice in Docket OST-2005-22228, in which we announced several steps designed to simplify 

our regulatory procedures for licensing foreign (and U.S.) air carriers. Our action in this 

Order serves to implement those streamlined regulatory procedures for the application 

involved in this proceeding.

 

1 The conditions are attached as Appendix A.
2

Application

By application filed March 19, 2010, White Airways, S.A., a foreign air carrier of Portugal, 

requests a renewed exemption under 49 U.S.C § 40109, and a foreign air carrier permit under 

49 U.S.C. § 41301, to engage in the following services:

2

a. Foreign charter air transportation of persons, property and mail from any point or 

points behind any Member State of the European Union via any point or points in any 

Member State and via intermediate points to any point or points in the United States 

and beyond; 

b. Foreign charter air transportation of persons, property and mail between any point or 

points in the United States and any point or points in any member of the European 

Common Aviation Area; and

c. Other charters pursuant to the prior approval requirements set forth in 14 CFR Part 

212 of the Department’s regulations.

The applicant provided evidentiary materials required by 14 CFR Part 211 of our regulations 

to support its requests for authority.

We received no answers to the application.

Decision

We have decided, consistent with our August 23, 2005 Notice referenced above, to grant the 

applicant’s request for renewed exemption authority, as described below and subject to 

conditions, and tentatively to grant, subject to show-cause procedures, its request for a foreign 

air carrier permit, also subject to conditions.

With respect to the applicant’s request for renewed exemption authority, we find that grant of 

this authority, as conditioned, is consistent with the public interest. We also find that the 

applicant remains financially and operationally qualified to perform the services authorized, 

and that it is substantially owned and effectively controlled in a manner consistent with the 

provisions of the U.S.-EU Agreement.

3

 We also find that the authority sought by the 

applicant is encompassed by the U.S.-EU Air Transport Agreement. 

 

2 By Order 2008-3-23 dated March 24, 2008, in Docket DOT-OST-2001-10210, the Department granted White 

Airways an exemption to engage in (1) foreign charter air transportation of persons, property and mail from any 

point or points behind any Member State of the European Union, via any point or points in any Member States 

and via intermediate points to any point or points in the United States and beyond; (2) foreign charter air 

transportation of persons, property and mail between any point or points in the United States and any point or 

points in any member of the European Common Aviation Area; and (3) other charters pursuant to the prior 

approval requirements set forth in 14 CFR Part 212 of the Department’s regulations.

3 We make this finding based on Article 2 (Reciprocal Recognition of Regulatory Determinations with Regard to 

Airline Fitness and Citizenship) of the Protocol to amend the U.S.-EU Air Transport Agreement, signed June 24, 

2010. 
3

Further, we note that the applicant is properly licensed by its homeland to perform the 

proposed services. In addition, by memorandum dated March 31, 2010, the Federal Aviation 

Administration advised us that it knew of no reason why we should act unfavorably on the 

applicant’s requests. We have verified the applicant’s compliance with 14 CFR Parts 203 

(Warsaw liability waiver), and 205 (insurance requirements).

In view of the above, we find that grant of the requested renewed exemption authority, as 

conditioned, for a two-year term, or until the requested permit authority becomes effective, 

whichever occurs earlier, is warranted.

Tentative Findings and Conclusions--Foreign Air Carrier Permit Application

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

foreign air carrier permit, in the form attached as Appendix B and subject to the conditions 

attached.4 In particular, we tentatively find and conclude that the factors which support our 

grant of renewed exemption authority to the applicant, as discussed above, also warrant 

granting the applicant the foreign air carrier permit it seeks.

In view of the foregoing and all facts of record and acting under authority assigned by the 

Department in its regulations, 14 CFR Part 385, 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; 

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 in a manner consistent with 

the provisions of the U.S.-EU Agreement;

4. The public interest requires that the exercise of the privileges granted by the permit should 

be subject to the terms, conditions, and limitations contained in the attached permit, and to 

such other reasonable terms, conditions, and limitations required by the public interest as we 

may prescribe;

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;5

 

4 The applicant’s request for a foreign air carrier permit was summarized in the Department’s published weekly 

list of applications filed. 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.

5

 This finding is based on the fact that the grant of this permit will not result in a near-term net annual change in 

aircraft fuel consumption of 10 million gallons or more.
4

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

7. Our action with respect to this foreign air carrier 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, we find that, with respect to the renewed exemption authority we are 

conferring on the applicant, the applicant is qualified to perform those operations, and that 

grant of the exemption authority is consistent with the public interest and would not constitute 

a major regulatory action under the Energy Policy and Conservation Act of 1975. 

ACCORDINGLY,

1. We grant the request of White Airways, S.A., for a renewed exemption under 49 U.S.C. 

§40109 for the services set forth below: 

a. Foreign charter air transportation of persons, property and mail from any point or 

points behind any Member State of the European Union via any point or points in any 

Member State and via intermediate points to any point or points in the United States 

and beyond; 

b. Foreign charter air transportation of persons, property and mail between any point or 

points in the United States and any point or points in any member of the European 

Common Aviation Area; and

c. Other charters pursuant to the prior approval requirements set forth in the 

Department’s regulations governing charters;

2. The exercise of the privileges granted above is subject to compliance by White Airways, 

S.A. with the conditions listed in Appendix A;

3. Our action granting the renewed exemption authority described herein, subject to the 

provisions of the ordering paragraphs above, is effective immediately, for a period of two 

years from the issue date of this order, or until the attached permit becomes effective, 

whichever is earlier;

4. We may amend, modify, or revoke the exemption authority set forth herein at our 

discretion at any time and without hearing;

5. To the extent not acted upon above, we dismiss all requests for exemption authority in 

Dockets DOT-OST-2001-10210 and DOT-OST-2010-0071;
5

6. With respect to the applicant’s request for a foreign air carrier permit in this proceeding, 

we direct all interested persons to show cause why our tentative decision on that application, 

set forth above, should not be made final;

7. 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 testimony, 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;

8. 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;

9. In the event no objections are filed, all further procedural steps shall be deemed waived, 

and the Department will enter an order which will (subject to Presidential review under 

§41307 of Title 49 of the U.S. Code) make final our tentative findings and conclusions set 

forth in this order; and

10. We will serve a copy of this order on White Airways, S.A., the Embassy of Portugal, in 

Washington, D.C., the Department of State, and the Federal Aviation Administration.

By:

PAUL L. GRETCH 

Director 

Office of International Aviation 

(SEAL)

Appendices

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

http://www.regulations.gov
Foreign Air Carrier Exemption Conditions Appendix A

In the conduct of the operations authorized, the foreign carrier applicant 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, 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 of departure for the United States, contact its International Industry 

Representative (IIR) (formerly referred to as International Principal Security Inspector) to advise the IIR 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 a Member 

State of the European Union;

(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.

EU carrier 01/2008
Appendix B

Issued by

Order 2010-

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

--------------------------------------------------------

PERMIT TO FOREIGN AIR CARRIER

---------------------------------------------------------

WHITE AIRWAYS, S.A.

A Foreign Air Carrier of Portugal

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:

Foreign charter air transportation of persons, property and mail from any point or points 

behind any Member State of the European Union via any point or points in any Member 

State and via intermediate points to any point or points in the United States and beyond;

Foreign charter air transportation of persons, property and mail between any point or 

points in the United States and any point or points in any member of the European 

Common Aviation Area; and 

Other charters pursuant to the prior approval requirements set forth in 14 CFR Part 212 

of the Department’s regulations

This permit 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 affecting 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 right for the 

service authorized by this permit from the service which may be operated by airlines of the European 

Community and its Member States (or, if the right is partially eliminated, then the authority of this permit 

shall terminate in like part); or (3) upon the termination or expiration of the applicable air services 

agreement between the United States and the European Community and its Member States. However, 

clause (3) 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 the European Community and its Member States become parties.
The Department 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 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, 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 of departure for the United States, contact its International Industry Representative (IIR) 

(formerly referred to as International Principal Security Inspector) to advise the IIR 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 a Member 

State of the European Union;

(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.

EU carrier 1/2008