Order 20 1 5

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UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C.

Issued by the Department of Transportation

on the 8 th day of May

, 20 1 5

S erved: May 8 , 2015

Application of

O CEAN A IR L INHAS A ÉREAS S.A. Docket DOT

- OST

- 20 1 5

- 00 27

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 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 carrier 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 procedures 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 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 s ingle 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 cer tificate (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 recip rocity regimes, indefinite for agreement regimes).

1 The conditions are attached at 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 February 13 , 201 5

, OceanAir Linhas Aéreas S.A. (OceanAir)

, a foreign air

carrier of Brazil

, r equests an exemption under 49 U.S.C. § 40109 and a foreign air carrier permit under 49 U.S.C. §41301 to engage in : 1) scheduled and charter foreign air transportation of

persons, property

, and mail from any point or points behind Brazil, via Brazil and intermediate points, to any point or points in the United States and beyond ; a nd 2) other charters pursuant to 14 CFR Part 212 of the Department’s regulations. 2 OceanAir also reques ts that the Department acknowledge the registration of the trade name “Avianca Brazil

, ” pursuant to Part 215 of the Department’s regulations. 3

The applicant requests that the exemption authority it seeks be granted for a term of two years.

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 request for a foreign air carrier permit, also subject to conditions.

With res pect to the applicant’s request for exemption authority, we find that grant of this authority is consistent with the public interest. We also find that the applicant has demonstrated, based on the record, that it is financially and operationally qualified to perform the services authorized, 4 and that it is substantially owned and effectively controlled by citizens of its

claimed homeland. 5

2 OceanAir states that it plans to begin U.S. operations with as many as three weekly all

- cargo flights between Miami (MIA), on the one hand, and Sao Paulo (GRU), Manaus (MAO), Campinas /V iracopos (VCP) and Cu ritiba (CWB), on the other hand, via Quito (UIO), Santiago (SCL), Buenos Aires (EZE), Lima (LIM), Bogota (BOG), and Medellin (MED). OceanAir further states that it intends to commence passenger operations to the Unit ed States

later in 2 015

. 3 Pursuant to Part 215 of our rules, we compared the proposed name with our list of names used by existing certificated, commuter, and foreign air carriers and with those applicants seeking new authority. We have completed our review and determined that no similarly named carrier(s) need be served . Accordingly, we acknowledge registration under 14 CFR Part 215 by OceanAir of the “Avianca Brazil” trade name. We note that the applicant states that at this time it will utilize it s own designator code, 06, for its U.S. operations.

4 The applicant has requested confidential treatment of its financial statements and traffic and financial forecasts under the provisions of 1 4 CFR §30 2 .12. Good cause having been shown, we will grant th is request.

5 The record indicates that through a series of Brazilian and Panamanian companies, approximately 84% of the applicant’s report ed shares are ultimately held by Mr. José Efromovich

, a Brazilian citizen who is also the applicant’s President. T he remaining 16 % of reported shares are ultimately held by Panamanian entities

. TheThe authority so ught by the applicant is encompassed by the Air Transport Agreement between

the United States and Brazil and the Memorandum of Consultations signed March 19, 2011

. We

also note that the applicant is properly licensed by its homeland to p erform the proposed

services. In addition, o n April 28 , 201 5

, t he Federal Aviation Admini stration advised us that i t knew of no reason why we should act unf a vorably on the applicant’s requests. We have verified the applican t’s compliance with 14 CFR Parts 203 (Warsaw liability waiver), and 205 (i nsurance requirements)

.

In view of the above, w e find that grant of the requested exemption authority, as conditioned, for

a one

- year term, or until the requested permit authority becomes effective, whichever occurs earlier, is warranted. 6

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. 7 In particular, w e tentatively find and conclude that the facto rs which support our grant of exemption authority to 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 pu blic 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 by citizens of its claimed homeland;

4 . The public interest requires that the exercise of the privileges grant ed 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;

record further indicates that the applicant’s remaining key management personnel are all Brazilian citizens

, with the

except ion of its Executive Vice President, a Portugue se citizen

. 6 The one

- year duration of the authority we are grant ing is consistent with our usual policy of granting exemption authority in the circumstances presented. We, therefore, are dismiss ing the application to the extent that it s eeks exemption a uthority for a longer period.

7 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 to the application were filed.5 . The issuance of this fo reign 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; 8

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 r eview, 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 oc curs 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 OceanAir Linhas Aéreas S.A. for an exemption under 49 U.S.C. §40109 to engage in : 1) scheduled and charter foreign air transportation of persons, pr operty

, and mail from any point or points behind Brazil, via Brazil and intermediate points, to any point or points in the United States and beyond; a nd 2) other charters pursuant to 14 CFR Part 212 of the Department’s regulations;

2 . T he exercise of the privileges granted above is subject to compliance by OceanAir Linhas

Aéreas S.A. w ith the conditions listed in Appendix A;

4. We grant the request of OceanAir Linhas Aéreas S.A. for confidential treatment of its

financial statements an d traffic and financial forecasts , 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 one year 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 in ordering paragraph 1 at our discretion at any time and without hearing;

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

DOT

- OST

- 20 1 5

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

- term net ann ual change in aircraft fuel consumption of 10 million gallons or more.8

. With respect to the applicant’s request for a foreign air carrier permit in this proceeding, w e direct all interested persons to show c ause 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 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 te ntative 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) calen dar 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 nclusions set forth in this order; and

1 2

. We will serve a copy of this order on the applicant ; the Embassy of Brazil in Washington,
D.C.; the Departmen t 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. § 4 0109 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 available on the World Wide Web at: http://www.regulations.govForeign Air Carrier Exemption Conditions Appendix A

In the conduct of the operations authorized, the foreign carr ier 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 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 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 shal l 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 a nd 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 th e 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 o r 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 ma y 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.

1 2 /200 7Appendix B

Issued by

Order 20 1 5

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- XX

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C.



### -------------------------------- ---------------------- ------------------------ PERMIT TO F OREIGN AIR CARRIER



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



### O CEAN A IR L INHAS A ÉREAS S.A.

A Foreign Air Carrier of Brazil

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 :

Scheduled and charter foreign air transportation of passengers, property, and mail from any point or points behind Brazil, via Brazil and intermediate points, to any point or points in the United States and beyond.

The holder shall also be authorized to engage in othe r 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 agreement affecting international air transportation now in effect, or that may become effective during the p eriod 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 Month XX, 2015 . 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 bilateral right for the service authorized by this permit from the service which may be operated by airlines designated by the Government of Brazil (or, if the right is partially eliminated, then the authority of this permit shall terminate in like part); (3) upon the

e ffective date of any permit granted by the Department to any other carrier designated by the

Government of Brazil in lieu of the holder; or ( 4) upon the termination or expiration of the applicable air services agreement between the United States and Brazil

. However, clause (4) of this paragraph shall not apply if prior to such termination or expiration, the foreign air

tr ansportation authorize d herein becomes the subject of another treaty, convention or agreement

to which the United States and Brazil become parties.The Department of Transportation has executed this permit and affixed its seal on Month XX,

20 1 5

.

By:

PAUL L. GRETCH

Directo r 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 applica ble 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 ho lder 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 Inte rnational 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 Ma nagement 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 equiva lent 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 wit h 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 t he 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 th e 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 schedu led, 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 S tates.

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.

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