Order 20 11

- 3

- 6

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C.

Issued by the Department of Transportation

on the 3 rd day of March , 2011

Se rved: March 3 , 2011

Applications of Dockets DOT

- OST

- 2004

- 19848

STARAIR (IRELAND) LTD. DOT

- OST

- 2004

- 19849

for an 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 renewed and

amend ed exemption authority un der 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 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 regulat ory procedures for the application involved in this proceeding.

Application s

By application filed January 13, 20 11

, Starair (Ireland) Ltd. (Starair ) , a foreign air carrier of

Ireland , requests renewed and ame nd ed exemption authority under 49 U.S.C. § 40109 (Docket

DOT

- OST

- 2004

- 19849) 2

1 The conditions are attached as Appendix A. and a foreign air carrier permit under 49 U.S.C. §41301 (Docket DOT

OST

- 2004

- 19848) , to engage in the following services :

2 Starair’s current exemption authority, most recently granted by Notice of Action Taken dated February 3, 2009, in

Docket DOT

- OST

- 2004

- 19849, authorizes it to engage in charter foreign air transportation of persons, property and2

a. c harter foreign air transportation of persons, property

, and mail between any point or points

be hind 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. charter foreign 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;

c. other charters pursuant to the prior approval requirements set forth in Part 212 of the Department’s economic regulations ; and

d. transportation authorized by any additional route r ights that may be made available to European Union carriers in the future.

The applicant provided evidentiary materials required by 14 CFR Part 211 of our regulations to support its requests for authorit y. 3

No answers were filed to the application s

.

Decision

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

- cause procedures, its request for a f oreign air carrier permit, also subject to conditions.

Specifically, we w ill grant Starair exemption authority for the services set forth in ordering paragraph 1 below. We will tentatively grant Starair a foreign air carrier permit for these services, as discussed below.

As an additional matter , Starair has requested that we grant it, in addition to authority cur rently

contained in the U.S.

- EU Agreement, authority to conduct transportation authorized by any additional rights made available to European Union carriers in the future. We are granting

Starair’s request for this authority by exemption (and tentatively granting it by foreign air carrier permit). We are, however, requiring Starair , before it commences any new service under this authority, to provide us with evidence that it holds a homeland license for that new service, unless it has already provided suc h evidence. 4

mail between a point or poi nts in Ireland and a point or points in the United States, including service via intermediate stops, and to conduct fifth

- freedom charter operations subject to prior approval under Part 212 of the Department’s rules.

3 Starair’s instant application also am ends its pending foreign air carrier permit application that was originally filed

in Docket DOT

- OST

- 2004

- 19848 on December 6, 2004.

4 See Orders 2007

- 6

- 19 and 2007

- 10

- 1, and Orders 2007

- 7

- 13 and 2007

- 10

- 16, where we granted this authority to British Airway s Plc. and Virgin Atlantic Airways Ltd., respectively.3

With respect to the applicant’s request for renewal and amendment of its exemption authority, we find that grant of this authority, as conditioned, is consistent with the public interest. We also find that the applicant is financially and ope rationally qualified to perform the services authorized, and that it is substantially owned and effectively controlled by citizens of Member States of the European Union, consistent with the provisions of the US.

- EU Agreement. 5 We

also find that the autho rity sought by the applicant is encompassed by the U.S.

- EU Agreement.

Further, we note that the applicant is properly licensed by its homeland to perform the proposed services. In addition, on February 16, 2011, the Federal Aviation Administration advise d 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 gr ant of the requested 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. 6 In particular, we tentatively find and conclude that the factors which support our grant of renewed

and amended exemption authority to the applicant, as discussed above, also warrant granting the applicant the f oreign air carrier permit it seeks.

In vie w 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 t he 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 by citizens of Member States of the European Union;

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 t erms, conditions, and limitations required by the public interest as we may prescribe;

5 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 Agreeme nt, signed June 24,

2010.

6 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. As noted above, no answers were filed to the application.4

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; 7

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 S tates 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 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 Starair (Ireland) Ltd. for an exemption under 49 U.S.C. §40109 for

the services set forth below:

a. foreign charter air t ransportation 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;

c. other charters pursuant to the prior approval requirements set forth in 14 CFR Part 212 of the Department’s regulations ; and

d. transportation authorized by any additional route rights made available to European

Union carriers in the future

.

2. Starair (Ireland) Ltd. shall, before it commences any new service under subparagraph ( d ) of ordering paragraph 1 above, provide th e Department, in Docket DOT

- OST

- 200 4

- 1 9848 , with evidence that it holds a homeland license for that new service, unless it has already provided such evidence to the Department;

3 . The exercise of the privileges granted above is subject to compliance by S tarair (Ireland) Ltd. with the conditions listed in Appendix A;

7 This finding is based on the fact that the grant of this permit will not result in a near

- term net annu al change in aircraft fuel consumption of 10 million gallons or more.5

4

. Our action granting the exemption authority described herein, subject to the provisions of ordering paragraph s 1 through 3 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;

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

6

. To the extent not acte d upon above, we dismiss all requests for relief in Docket

DOT

- OST

- 200 4

- 1 9849 ;

7 . 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 t hat application, set forth above, should not be made final;

8

. 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 obj ected 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;

9

. 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 0 . 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

1 1 . We will serve a copy of this order on Starair (Ireland) Ltd.

, the Embassy of Ireland in Washington, D.C., the Department of State (Office of Aviation Negotiations)

, and the Federal

Aviation Administration.

By:

PAUL L. GRETCH

Director

Office of International Aviation

(SEAL)

AppendicesForeign 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 Tr ansportation 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 applicab le 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 Transportation Security Administration has determined that security is adequate to allow such airp ort(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 wit h 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 pro vided 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 b e 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 C FR 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 (includ ing 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 wi thout explicit Department approval

under Title 49 of the U.S. Code.

EU carrier 0 1/2008Appendix B

Issued by

Order 20 11

-

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C.



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



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

### STARAIR (IRELAND) LTD.

A Foreign Air Carrier of Ireland

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:

F oreign chart er air transportation of persons, property
, and mail from any point or points behind any Member State of th e 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;

F oreign 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;

O ther charters pursuant to the prior approval requirements set forth in 14 CFR

Part 212 of the Department’s regulations; and

Tra nsportation authorized by any additional route rights made available to European Union carriers in the future; provided , that the holder shall, before it commences any new service under such additional route rights, provide the Department with evidence tha t it holds a homeland license for that new service (unless it has already provided such evidence to the Department). Such evidence

shall be filed in Docket DOT

- OST

- 200 4

- 1 9848

.
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 b ecome 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 t he 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 sha ll have theeffect of eliminating the right for the service authorized by this permit from the service which may be operated by airlines of the European Union and its Member States (or, if the right is partially eliminated, then the authority of this permi t 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 Union and its Member States. However, clause (3) of this paragraph shall not apply if prior to s uch 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 Union and its Member States become parties.

The Department of Transp ortation 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 Feder al 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 a ssure 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 Transportation Security

Administration has determined that secur ity 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 thi s 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 spec ifically 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 sov ereign 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 transportati on 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

und er 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 a ll 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) Co mply 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 ca nnot be sold or otherwise transferred without explicit Department approval under Title 49 of the U.S. Code.

EU carrier 0 1/2008