Order 201 5

- 3

- 7

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY
WASHINGTON, D.C.

Issued by the Department of Transportation

on the 12 th day of March , 201 5

Served: March 12 , 201 5

Application of

AIR CALEDONIE INTERNATIONAL S.A. D ocket DOT

- OST

- 201 5

- 0 003

for an exemption under 49 U.S.C. § 4 0109 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 an exemption

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

interest to grant the applicant the foreign air carrier permit attached as Appendix B t o this order.

Background

On August 23 , 2005, the Department issued a Notice , in Docket DOT

- OST

- 2005

- 22228

, announcing several steps designed to streamline our regulatory procedures for licensing U.S. and foreign air carriers. Among other things, the Not ice stated that:

Assuming, based on the record and on the public interest/public convenience and necessity elements germane to our licensing decisions, that we were in a position to act

favorab ly, we would proceed to issue a single order (1) granting the exemption request for whatever duration we would normally have imposed, or until certificate/permit authority becomes effective, whichever is shorter, and (2) tentatively deciding ( i.e.

, show

- cause) to award a corresponding certificate (or permit), again for the standard duration we would normally have imposed (such as, in the case of certificates, five years for limited

- entry markets, indefinite for open

- entry markets, and in the case of permits, five years for comity and reciprocity regimes, indefinite f or agreement regimes).

1 The conditions are attached as Appendix A.Our action in this Order serves to implement these streamlined regulatory procedures for the application involved in this proceeding.

Application

By application filed J anuary 8 , 201 5

, Air Caledonie International S.A. ( Aircalin )

, a foreign air

carrier of France

, requests an exemption under 49 U.S.C. § 40109 and a f oreign air carrier permit

under 49 U.S.C. § 41301, to engage in scheduled and charter foreign air transportation of persons,

property

, and mail from any point or points behind New Caledonia, via any point or points in New Caledonia and any intermediate points, to any points or points in the United States

. The

carrier states that it proposes to conduct these opera tions through a code

- share arrangement with

Air Tahiti Nui. 2

The applicant provided evidentiary materials required by 14 CFR Part 211 of our regulations to support its requests for authority.

No answers were filed to the application.

Decision

We have decided, under assigned authority and consistent with our August 23 , 2005 Notice referenced above, to grant the applicant’s request for exemption authority, subject to conditions, and tentatively to grant, subject to show

- cause procedures, its requ est for a foreign air carrier permit, also subject to conditions.

With respect to the applicant’s request for exemption authority, we find that grant of this authority is consistent with the public interest; and that the applicant has demonstrated, based on the record, that it is financially and operationally qualified to perform the services aut horized. 3
We also find that the applicant has demonstrated, based on the record, that it is financially and operationally qualified to perform the services authori zed. We further find that it is substantially owned and effectively controlled by citizens of its claimed homeland. 4

2 Aircalin states that it plans to offer twice

- weekly code

- share service between Noumea, New Caledonia (NOU) and Los Angeles, CA. (LAX) via Papeete, Tahiti, French Polynesia (PPT), and once

- weekly code

- share serv ice between Noumea, New Caledonia (NOU) and Los Angeles, CA. (LAX) via Auckland, New Zealand (AKL). Aircalin further

states that it will place its SB* designator code o n flights Air Tahiti Nui currently operates between AKL and PPT
on the one hand, and LA X on the other hand. On January 20, 2015, Air Tahiti Nui fil ed in docket DOT

- OST

- 2015

- 0007 an application for a corresponding Statement of Authorization that will allow it to display the SB* designator

code of Aircalin on its PPT

- LAX and AKL

- LAX service s

. We will act on its request concurrently. Aircalin asserts
that it has no plans to market or sell local service between PPT or AKL and the United States.

3 The applicant has requested confidential treatment of its financial information , under the provisions of 14 CFR
§30 2 .12. Good cause having been shown, we will grant this request.

4 The record indicates that 99.38% of Aircalin’s shares are held by the Agency for Air Transportation to New Caledonia, which holds Fr ench citizenship. The record fur ther indicates that the applicant’s directors, officers, and key management personnel are all French citizens.The authority sought by the applicant is encompassed by the U .S.

- France Air Transport Agreement

. 5 We therefore find that grant of the re quested exemption authority, for a two

- year term, or until the requested permit authority becomes effective, whichever occurs earlier, is

warranted.

We also note that the applicant is properly licensed by its homeland to perform the proposed

services. We have verified the applicant’s compliance with 14 CFR Parts 203 (Warsaw liability waiver), and 205 (insurance requirements).

Tentative Findings and Conclusions

-- Foreign Air Carrier Permit Application

We tentatively find and conclude that the public inter est warrants granting the applicant a foreign air carrier permit, in the form attached as Appendix B and subject to the conditions attached. 6 In particular, w e tentatively find and conclude that the factors which support our grant of exemption authority t o the applicant also warrant granting the applicant the foreign air carrier permit it

seeks.

In view of the foregoing and all facts of record, 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 rul es, regulations, and requirements;

3 . 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;

4

. The issuance of this f oreign air carrier permit will not constitute a major regulatory action under the Energy Policy and Conservati on Act of 1975, as defined in 14 CFR §313.4(a)(1) of our

r egulations; 7

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

5 We note that section 2 of Annex 1 of the U.S.

- EU Agreement provides that for areas that are not encompassed

within the definition of “territo ry” in Article 1 of the U.S.

- EU Agreement, the U.S.

- France Air Transport Agreement shall continue to apply, according to its terms

. 6 The applicant’s request for a foreign air carrier permit was summarized in the Department’s published weekly list of appl ications 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. As noted above, no answers

to the application were filed.

7 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.6 . 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 tha t 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, an d acting under authority assigned by the Department in its regulations,

14 CFR Part 385, we find that (1) our actions are consistent with Department policy; and (2) with respect to the exemption authority we are conferring on the applicant, the applicant is qualified to perform those operation s; 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 Air Caledonie International S.A. for an exemption under 49 U.S.C.
§40109 to permit it to engage in scheduled and charter foreign air transportation of persons, property, and mail from any point or points behind New Caledonia, via any point or points in New Caledonia and any intermediate points, to any points or points in the Unit ed States ;

2

. The exercise of the privileges granted above is subject to compliance by Air Caledonie

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

3. In the conduct of the operations authorized, Air Caledonie International S.A. may only operate through a code

- share arrangement with a duly authorized and properly supervised U.S. or foreign air carrier , where Air Caledonie International S.A. is not physically operating the flight to and from the United States ;

4

. We grant the request of Air Caledonie International S.A. for confidential treatment of its

financial information , consistent with the provisions of 14 CFR §302.12;

5

. Our action granting the exemption authority described herein is effective immediately, for a period of two year s from the issue date of this order , or until the attached permit becomes effective, whichever is earlier ;

6

. We may amend, modify, or revoke the exemption authority set forth herein at our discretion at any time and without hearing;

7

. To the extent not acted upon above, we dismiss the applicant’s request for exemption authority in this Docket (DOT

- OST

- 201 5

- 0003 ) ;

8

. With respect to the applicant’s request for a foreign air carrier permit in this proceeding, w e direct all interested pe rsons to show cause why our tentative decision on that application, set
forth above

, should not be made final;9

. Any interested person objecting to the issuance of an order making final our tentative findings

and conclusions with respect to the applican t’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;

10

. 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;

1 1

. 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 co nc lusions set forth in this order; and

1 2

. We will serve a copy of this order on Air Caledonie International S.A. ; the Embassy of

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

.

Persons entitled to petition the Department for review of this order under the Department’s regulations, 14 CFR §385.30, may file their petitions within seven (7) days after the date of

issuance of this order . Our action with respect to the applicant’s request for exemption authority

under 49 U.S.C. § 40109 is effective immediately , and the filing of a petition for review will not

alter such effectiveness.

By:

PAUL L. GRETCH

Director

Office of International A viation

(SEAL)

Appendices

An electronic version of this document is avail able on the World Wide Web at: http://www.regulations.govAppendix A

F oreign Carrier Exemption Conditions

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 ha s 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 secur ity, 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 (i ncluding 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 advis e the I IR 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 P art 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 Servi ce (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, concern ing 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 institute d 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 dest ination, 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

condit ion, 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 specific ally 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 o perations 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 limi tations 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 an y 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.

1 2/2007Appendix B

Issued by

Or der 20 1 5

- X X

- X X

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C.



### -------------------------------------------------------- PERMIT TO FOREIGN AIR CARRIER



### ---------------------------------------------------------



### AIR CALEDONIE INTERNATIONAL S.A.

A F oreign Air Carrier of France

is authorized, subject to the following provisions, the provisions of Title 49 of the U.S. Code, and the orders, rules, and regul ations of the Department of Transportation, to engage in :

S cheduled and charter foreign air transportation of persons, property, and mail from any point or points behind New Caledonia, via any point or points in New Caledonia and any intermediate points, to any points or points in the United States.

The holder shall also be authorized to engage in other charter trips in foreign air transportation, subject to the terms, conditions, and limitations of the Department’s regulations governing charters.

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 agreemen t 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.

In addition, in the conduct of the operations authorized, Air Caledonie International S.A. may only operate through a code

- share arrangement with a duly authorized and properly supervised U.S. or foreign air carrier, where Air Caledonie International S.A. is not physically operating the

fli ght to and from the United States

.

This permit shall be effective on Month XX, 20 1 5 . 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 dissolut ion 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 bilateral right for the service authorized by this permit from the serv ice which may be operated by airlines designated by the Government of France (or, if the right is partially eliminated, then the authority of this permit shall terminate in like part); (3) upon theeffective date of any permit granted by the Department to any other carrier designated by the

Government of France in lieu of the holder; or (4) upon the termination or expiration of the applicable air services agreement between the United States and France . However, clause (4) 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 France become parties.

The Department of Transportation has executed this permit and affixed its seal on Month XX

, 20 1 5

.

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(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, the Transportation Security Administration, and with all applicable U.S. Government requirements concerning security, including, but not limited to, 14 CFR Parts 129, 91, a nd 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 I IR of its plans and to find out whether the Transpor tation 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 u nder 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 requiremen ts 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 contra ct 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 "in ternational 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 prescrib ed 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 con ditions imposed above. Moreover, this authority cannot be sold or otherwise transferred without explicit Department approval under Title 49 of the U.S. Code.

1 2 /200 7