Re: Caribbean Airlines Limited : Exemption Renewal Application OST

- 2010

- 0232

1. I , John Gilmore, was a party to the OST

- 2010

- 0232 proceedings in which the exemption authority

, sought to be extended and renewed through the instant application, was granted by Notice of Action Taken on February 10, 2011

.

This is a preliminary response relative to certain matters of a procedural nature related to this application that bear on its substantive sufficiency and validity on which I request certain rulings from th e Department herein.

2. The instant application was served on me by electronic mail at 15 24 EST on February 9, 2012 and specifically states that: “CAL intends to invoke the automatic extension provisions of 5 U.S.C. § 558(c) and Part 377 of the Departme nt's Special Regulations.”

3. Th is ‘automatic extension’ or ‘ non expiry’ provision reads as follows:

‘‘ 5 U.S.C. § 558(c) (Last Sentence)

.... When the licensee has made timely and sufficient application for a renewal or

a new license in accordance with agency rules, a license with reference to an activity of a continuing nature does not expire until the application has been finally determined by the agency.’’

4. To be “ timely ” under 5 U.S.C. § 558(c), 14 CFR 377 .10 (c) required that

th is application be f iled prior to 1700 hours on the expiration date of the authority sought to be renewed, here February 10, 2012 . This renewal application is therefore timely

– though barely and with little leeway reserved to the applicant to cure any defects identified.

5. To be “ sufficient ” under 5 U.S.C. § 558(c )

, 14 CFR 377 .10(b) Contents of Renewal Application requires that: “(b) Contents of renewal application. The application must contain all the information required by law and the Board’s regulations, and meet the requirements thereof as to form.”

6. It is my contention , for the reasons set forth below, that the instant application does not contain “ all the i nformation required by law and the Board’s regulations ” , that, as such it fails the sufficiency requirement of U.S.C. § 558(c)

and that accordingly the authority sought to be renewed should by process of law expire in accordance with its terms on February 10 unless corrected by that date.

7. 14 CFR 377.11 provides as follows in such cases:

“ **§ 377.1 1 Processing of defective renewal applications.**  When the Board determines that a renewal application does not comply with the requirements of this part, or that it does not relate to a license with reference to an activity of a continuing nature, it will s o notify the applicant.The applicant may amend his application to cure the deficiency as a matter of right at any time prior to the date when the application was due pursuant to § 377.10(c).”

8. I hereby request a ruling that the instant renewal application is defective, that the appli cant be so notified and further, on an ‘exceptional basis’ that the applicant be afforded a reasonable opportunity to cure the defect s by

amendment.

This last curative request is made solely in the interests of the travelling public and other users of the services sought to be continued by this application despite the fact that the applicant waited until late in the day prior to the scheduled expiry of the authority its application seeks to renew to file its renewal application.

My interpretation of 377.11 is that it requires prudence of an applicant and contemplates that where an applicant leaves insufficient time in which to be able to correct an application deemed defective such applicant is in the normal course of events expected to accept the consequences.

9. The instant application in my submission is ‘defective’ under 377.11 in that

it does not comply with the requirements of “this Part” (377) for the reason that it

does not “ contain all of the information required by law and by the Board’s regulations ” (377.10(b) above).

10. The Department has made it clear in its “ Foreign Air Carrier Information

Packet ” that the 14 CFR 211 regulations governing applications for foreign air carrier permits apply equally to appli cations for exemption authority, and thus also to renewals thereof as for renewals of permits. Page 2 Note 4 “... Although Part 211 refers to applications for foreign air carrier permits, the same evidentiary information is required of foreign carriers seeking exemption authority. ...”

11. The permit (and exemption) renewal requirements of 14 CFR 211 are clear and appear a t 211.21 as follows:

**“**

**§211.21 Amendments or renewal of foreign air carrier permits.** A person applying for an amendment or renewal of a foreign air carrier permit shall submit the information listed below. The applicant must comply fully with this requirement. If the applicant is unable to respond to an item, the application shall contain an explanation and include the substitute informat ion most closely approximating the information requested. The Department may require an applicant to provide any additional information necessary. (a) The information required in paragraphs (a), (b), (i), (o), (q), (r), and (s), of §211.20.(b) Except if s eeking renewal of existing authority, the information specified in paragraphs (c) and (p) of §211.20 regarding the new or altered services proposed to be operated. (c) If the financial material for the applicant on file with the Department is more than 2 y ears old, financial summaries setting forth, in U.S. dollars, the applicant’s profit and loss statements and balance sheets for the 2 most recent available years (calendar or fiscal) as required in paragraph (n) of §211.20, together with

the statement of c ompleteness and accuracy required by that paragraph. If the financial material on file with the Department is 2 years old or less, the applicant may incorporate that information by reference as described in §211.14 of this
part. (d) If the ownership and co ntrol of the applicant are substantially unchanged, so state. If a change has occurred, the applicant shall respond to the paragraph in §211.20 that most closely relates to the change that has taken place. (e) A statement that applicant’s maintenance progr am continues to comply with the provisions of ICAO Pilots and Airmen Annexes 1, 6, (Part 1) and 7.”

12. Of the information required to be provided in 211.21(a) above (the requirement to provide the information “ required in paragraphs (a), (b), (i), (o), ( q), (r), and (s), of §211.20. ” ) the applicant has essentially provided only its

name.

Material and not provided are:

- the source and expected renewal of its domestic license authority (i);

- “the amount , type and reason for financial assistance received or expected from the applicant’s government, if any.” (o) which I submit would include the fuel subsidy it receives for all its operations from the Government of Trinidad and Tobago (being the difference between the price per gallon it actually pays for

aviation fuel and a price per gallon of US$ 1.50.);

- “If the authority requested is governed by an agreement, state whether the applicant has been formally designated by its homeland government, and, if so, cite the diplomatic note.” (q) which ‘ designation ’ I would submit in this case, since

it involves 7 th Freedom rights vis a vis both Jamaica and Grenada , relate s to designation by those governments as the appropriate ‘homeland’ g ove rnment s ;

- “ For the preceding 5 years, state whether the applicant has been involved in any safety or tariff violations or any fatal accidents. If so, furnish details .” (s)

13. As to the financial information required by 211.21(c) nothing has been

either provided or incorporated by reference.

14

. As to information regarding changes in the ownership and control of the applicant required by 211.21(d) nothing has been provided.

15. The foregoing omissions are only the more material as to substance, there

a re others both of substance and form.16. While any one such materially substantive omission would in my submission disqualify an application from being considered “sufficient” under U.S.C. § 558(c) and require it to be ruled “defective” under 14 CFR 377.11, the combined effect of the foregoing multiple material omissions leave the issue

in no doubt in this case.

The instant application is not “sufficient” under U.S.C. § 558(c) and must be ruled

“de fective” under 14 CFR 377.11.

That is my submission and I hereby request such a ruling

– with an ‘exceptional’ opportunity provided to the applicant to cure these defects by amendment within a reasonable period of time. (See above 8)

17. It is my furthe r submission that the materiality of the multiple omissions in the instant application renders any formal ‘Answer” impossible and I request a ruling that the time period for such Answer shall commence from the date at

which a “ sufficient ” renewal applicati on containing “ all the i nformation required by law and the Board’s regulations ” is submitted and so acknowledged by the Department.

Respectfully submitted this 10th day of February, 2012 by and on behalf of

/s/ John Gilmore

_______________________

John Gilmore

48

– 7 St. Antoine West Montreal, QC H2Z 1G8

514 716 7665 jptgilmore@hotmail.comCERTIFICATE OF SERVICE

I hereby certify that on this 10th day of February, 2010, a copy of this Certificate of Service and of my foregoing preliminary procedural response to the February 9, 2012 Exemption Renewal Application DOCKET DOT

- OST

- 2010

- 0232 filed on

behalf of Caribbean Airlines Limited was filed on the Docket at www.regulations.gov and served by electronic mail :

On Counsel for the Applicant at John@mietuslaw.com and Bill@mietuslaw.com ;

on Paul Gretch and Robert Finamore of the US DOT at paul.gretch@dot.gov and robert.finamore@dot.gov ; and, on each of the persons named below in the Service List provided by the Applicant

.

/s/ John Gilmore

_______________________________ John Gilmore

48

– 7 St. Antoine West Montreal, QC H2Z 1G8

514 716 7665 jptgilmore@hotmail.com

carl.nelson@aa.com ; Robert.wirwick@aa.com ; sascha.vanderbellen@delta.com; jeff.morgan@delta.com ; jonathanlinde@united.com; steve.morrissey@united.com ; dan.weiss@united.com; bkeiner@crowell.com ; lbmurphy@crowell.com ; lhalloway@crowell.com ; msinick@ssd.com;

efaberman@rf.com ; bob.kneisley@wnco.com ; for AirTran howard.kass@usairways.com, benjamin.slocum@usairways.com ; anita.mosner@hklaw.com ; for UPS nssparks@fedex.com ; gnleopard@fedex.com ; mlbenge@zsrlaw.com ; for North American/World pmurphy@gghairlaw.com ; sharfst@usa3000airlines.com ; jrichardson@johnlrichardson.com ; jcanny@amerijet.com ; john.fredericksen@suncountry.com ; jyoung@yklaw.com ; dkirkstein@yklaw.com ; for Spirit charters@evergreenairlines.com ; ben.gra ves@evergreenairlines.com; jhill@dowlohnes.com ; for JetBlue urskr@state.gov ; john.allen@faa.gov