Order 2010-4-10

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C.

Issued by the Department of Transportation

on the 16 th day of April, 2010

Served: April 16, 2010

Application of

PERIMETER AVIATION LP AS REPRESENTED

BY ITS GENERAL PARTNER PERIMETER

AVIATION GP INC. c/o/b PERIMETER AVIATION Docket DOT-OST-2010-0029

for an exemption under 49 U.S.C. §40109 and a foreign air carrier permit under 49 U.S.C. §41301

ORDER GRANTING EXEMPT ION AND TO SHOW CAUSE

Summary

By this order we (1) grant the ap plication of the referenced fore ign 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 a foreign air carr ier permit attached as Appendix B to 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 proc edures for licensing U.S. and foreign air carriers. Among other things, the Notice stated that:

Assuming, based on the record and on the public interest/public conve nience and necessity elements germane to our licensing decisions, that we were in a position to act favorably, we would proceed to issue a single order (1) gr anting 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 th e standard duration we would normally have imposed (such as, in the case of certificates, five years for limited-entry ma rkets, indefinite for open-entry markets, and in the case of permits, five years for comity and reciprocity regimes, indefinite for agreement regimes).

1 The conditions are attached as Appendix A.2

Our action in this Order serves to implement these streamlined regulatory procedures for the application involved in this proceeding.

Application

By application filed February 2, 2010, Perimete r Aviation LP as represented by its general partner Perimeter Aviation GP Inc. c/o/b Perime ter Aviation (Perimeter Aviation), a foreign air carrier of Canada, requests an exemption under 49 U.S.C. §40109 and a foreign air carrier permit under 49 U.S.C. §41301, using small aircraft, to engage in charter fore ign air transportation of persons, property, and mail: 1) between any point s in Canada and any point or points in the United States; 2) between any point or points in the United States and any point or points in a third country or countries, provi ded that, except with respect to cargo charters, such service constitutes part of a continuous operation, with or without a change of aircraft, that includes service to Canada for the purpose of carrying loca l traffic between Canada and the United States; and 3) other charter operations in accordan ce with 14 CFR Part 212 of the Department’s regulations.

The applicant provided evidentiar y materials required by 14 CFR Pa rt 211 of our regulations to support its requests for authority.

No answers were filed to Perimeter Aviation’s application.

Decision

We have decided, under assigned authority a nd 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, subjec t to show-cause proce dures, its request for a foreign air carrier permit, also subject to conditions.

With respect to the applicant’s request for ex emption authority, we find that grant of this authority is consistent with th e public interest; that the applic ant has demonstrated, based on the record, that it is financially and operationally qualified to perf orm the services authorized, and that it is substantially owned and effectively controlled by citizens of its claimed homeland. 2

The authority sought by the appl icant is encompassed by the Ai r Transport Agreement between

the United States and Canada. We also note th at the applicant is properly licensed by its homeland to perform the proposed services. We therefore find that grant of the requested 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 applican t is properly licensed by its ho meland to perform the proposed services. In addition, on March 26, 2010, the Fede ral Aviation Administrati on advised us that it knew of no reason why we should act unfavorably on the applicant’s requests. We have verified

2 In its application Perimeter Aviation states that it is ow ned by EIC Canada which is owned by Canadian citizens. Perimeter Aviation’s Chairman, President, and all key operating personnel are citizens of Canada.3

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

Tentative Findings and Conclusions--For eign 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 Appendi x B to this order, and subject to the conditions

attached. 3 In particular, we tentatively find and conc lude that the factors which support our grant of exemption authority to the applicant also warra nt granting the applicant the foreign air carrier permit is seeks.

In view of the foregoing and all facts of r ecord, we tentatively find and conclude that:

1. It is in the public interest to issue the a pplicant a foreign air carrier permit in the form attached, for operations with small aircraft;

2. The applicant is fit, willing and able pr operly to perform the fo reign 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 e ffectively controlled by citizens of its claimed homeland;

4. The public interest requires th at the exercise of the privilege s granted by the permit should be subject to the terms, conditions, and limitations c ontained in the attached permit, and to such other reasonable terms, conditions, and limitatio ns 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; 4

6. The public interest does not require an or al 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 T itle 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 disappr ove this portion of the Departme nt’s decision under that section,

whichever occurs earlier.

3 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 ame nded foreign air carrier permit authority. As noted above, no answers to the application were filed.

4 This finding is based on the fact that the grant of th is permit will not result in a near-term net annual change in aircraft fuel consumption of 10 million gallons or more.4

In view of the above, and acting under authorit y assigned by the Departme nt in its regulations, 14 CFR Part 385, we find that (1) our actions are c onsistent with Department policy; and (2) with respect to the exemption authority we are conferri ng on the applicant, the applicant is qualified to perform those operations; and that grant of the ex emption authority is cons istent 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 Perimeter Aviation LP as represented by its general partner Perimeter Aviation GP Inc. c/o/b Perimeter Aviation for an exemption under 49 U.S.C. §40109 to permit it to engage in charter foreign ai r transportation of persons, prop erty, and mail: 1) between any point or points in Canada and any point or points in the United States; 2) between any point or points in the United States and any point or points in a third country or countries, provided that, except with respect to cargo charters, such serv ice constitutes part of a continuous operation, with or without a change of ai rcraft, that includes service to Canada for the purpose of carrying

local traffic between Canada and the United States; and 3) other charter operations in accordance with 14 CFR Part 212 of the Department’s regulations;

2. In the conduct of these operations, Perimeter Av iation LP as represented by its general partner

Perimeter Aviation GP Inc. c/o/b Perimeter Avia tion may only use aircraft capable of carrying no more than 60 passengers and having a maxi mum payload capacity of no more than 18,000 pounds; 5

3. The exercise of the privileges granted above is subject to compliance by Perimeter Aviation LP as represented by its general partner Perime ter Aviation GP Inc. c/o/b Perimeter Aviation with the conditions listed in Appendix A;

4. Our action granting the exemption authority de scribed herein is effective immediately, for a period of two years from the i ssue date of this order, or until the attached permit becomes effective, whichever is earlier;

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

6. To the extent not acted upon above, we di smiss the applicant’s request for exemption authority in this Docket (DOT-OST-2010-0029);

7. With respect to the applican t’s request for a foreign air carri er permit in this proceeding, we direct all interested persons to show cause w hy our tentative decision on that application, set forth above, should not be made final;

8. Any interested person objecti ng 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) calenda r days after the date of service of this order, file with the

5 The applicant has specifically stated that it was applyi ng to provide the service requested using small aircraft.5

Department and serve on the parties to this pr oceeding, a statement of objections specifying the part or parts of the tentative findings and conclusions objected t o, together with a summary of testimony, statistical data, and concrete evidence to be relied u pon in support of th e objections; if objections are filed, answers to objections ar e due no later than se ven (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 objecti ons before we take further action;

10. In the event no objections are filed, all furthe r procedural steps shall be deemed waived, and the Department will enter an order which will (subject to Presiden tial review under §41307 of Title 49 of the U.S. Code) make final our tentative findings and conclusions set forth in this order; and

11. We will serve a copy of this order on Peri meter Aviation LP as represented by its general partner Perimeter Aviation GP Inc. c/o/b Pe rimeter Aviation, the Embassy of Canada in Washington, D.C., the Federal Aviation Administ ration, and the U.S. Department of State.

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, a nd the filing of a petition for review will not

alter such effectiveness.

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.govAppendix A

Foreign 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 au thorization 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 th e 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. G overnment requirements concerning security, the holder shall, before commencing any new service (including char ter flights) from a foreign airport that would be the holder’s last point of departure for the United St ates, contact its International Industry Representative (IIR) (formerly referred to as International Principal Secu rity Inspector) to advise the IIR of its plans and to find out whether the Transportation Security Administ ration has determined that security is adequate to allow such airport(s) to be served;

(3) Comply with the requirements for minimum insura nce 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 Fede ral Aviation Administration’s Program Management Branch (AFS-260), Flight Standards Service (any cha nges 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 comp etency requirements of its Government for international air services;

(6) Except as specifically exempted or otherwise provi ded 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 ar e: (a) based on its operations in international air transportation that, according to the contract of carriag e, 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 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 gove rning charters (including 14 CFR Parts 212 and 380);

and

(11) Comply with such other reasonable terms, cond itions, and limitations required by the public interest as may be prescribed by the Department, with all appli cable orders or regulations of other U.S. agencies and courts, and with all applicab le laws of the United States.

This authority shall not be effective during any peri od 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 unde r Title 49 of the U.S. Code.

12/2007Appendix B

Issued by
Order 2010-__-__

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C.



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



### -------------------------------------- ------------------- Perimeter Aviation LP as represented by its general partner

Perimeter Aviation GP Inc. c/o/b Perimeter Aviation

A Foreign Air Carrier of Canada

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 Transpor tation, to engage in:

Charter foreign air transportation of p ersons, property, and mail between any point or points in Canada and any point or poin ts in the United States, and between any point or points in the United States and any point or points in a third country or countries, provided that, except with resp ect to cargo charters, such service constitutes part of a continuous operation, wi th or without a change of aircraft, that includes service to Canada for the purpose of carrying local traffic between Canada

and 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.

In the conduct of these operations, the holder ma y only use aircraft capable of carrying no more than 60 passengers and having a maximum payload capacity of no more than 18,000 pounds.

This permit and the exercise of the privileges granted in it shall be subject to the terms,

conditions and limitations in both th e order issuing this permit and th e attachment to this order, and to all applicable provisions of any treaty, convention or agr eement affecting international air transportation now in effect, or that may become effective duri ng 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 treat y, convention or agreement, this permit shall terminate (1) upon the di ssolution or liquidation of the holde r 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 service which may be operated by airlines designated by th e Government of Canada (or, if the right is partially eliminated, then the authority of this permit shall terminate in like part); (3) upon the effective date of any permit granted by the Depa rtment to any other carrier designated by theGovernment of Canada in lieu of the holder; or (4) upon the terminatio n or expiration of the applicable air services agreement between the United States a nd Canada. However, clause (4) of this paragraph shall not apply if prior to such termination or expiration, the foreign air transportation authorized herein becomes the subj ect of another treaty, convention or agreement to which the United States and Canada become parties.

The Department of Transportation has execu ted 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(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 su ch authorization with the Department;

(2) Comply with all applicable requirements of the Fede ral Aviation Administration, the Transportation Security Administration, and with all applicable U.S. Govern ment requirements concerning security, including, but not limited to, 14 CFR Parts 129, 91, and 36 and 49 CFR Pa rt 1546 or 1550, as applicable. To assure compliance with all applicable U.S. Government requirements concerni ng 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 Representativ e (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 mi nimum 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 Administra tion’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 compli es 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 fo r in a Department Order, comply with the requirements of 14 CFR Part 203, concerning waiver of Wa rsaw Convention liability limits and defenses;

(7) Agree that operations under this authority constitute a waiv er 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 opera tions 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 w as purchased in the United States; or (b) based on a claim under any international agreement or treaty cognizable in any c ourt or other tribunal of the United States. In this condition, the term "international air transportation" mean s "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 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 otherwi se provided in the applicable aviation agreement, comply with the Department's rule s 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 re gulations of other U.S. agenci es and courts, and with all applicable laws of the United States.

This authority shall not be effective during any period wh en 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.

12/2007