Order 2011

- 8

- 28

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C

.
Issued by the Department of Transportation

on th e 31 st day of August, 20 11

Served : August 31, 2011

Application of

HELISERVICIOS AEROBELL, S.A. Docket DOT

- OST

- 201 1

- 0036

for a n 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

Summar y

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 per mit attached as Appendix B to this order.

Background

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

- 2005

- 22228, announcing several steps designed to streamline our regulatory procedures for licensing U.S. and foreign air

carriers. Amo ng 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 favorably, 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 certific ate (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 reciprocit y regimes, indefinite for agreement regimes).

1 The conditions are attached at 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 23, 2011, (supplemented July 27 and August 10 , 2011), Heliservicios Aerobell, S.A. a foreign air carrier of Costa Rica, 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 the following operations using small aircraft:

a. Ch arter foreign air transportation of persons, property and mail between any point or points in Costa Rica and any point or points in the United States;

b. Charter foreign air transportation of persons, property and mail between any point or points in

the ter ritory of the United States and any point or points in a third country or countries, provided that, such service constitutes part of a continuous operation, with or without a change of aircraft, that includes service to Costa Rica for the purpose of carryi ng local traffic between Costa Rica and the territory of the United States; and

c. Other charters pursuant to prior approval requirements under 14 CFR Part 212 of the Department’s Regulations

.

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

No answers were filed to this application.

Decision

We have decided, under assigned authority and consistent with our August 23, 2005 Notice referenced above, to grant the applicant’s re quest for e xemption 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 respect to the applicant’s request for exemption authority, we find that grant of this authority is consi stent with the public interest ; that the applicant has demonstrated, based on the record, that it is financially and operationall y qualified to perform the services authorized, and that it is substantially owned a nd effectively controlled by citizens of its claimed homeland

. 2

The authority sought by the applicant is encompassed by the Air Transport Agreement between

the United States and Costa Rica. W e therefore find that grant of the requested exemption

author ity, for a two

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

2 The applicant states that it is wholly owned by Costa Rican citizens Marco Montealegre Escalante and Enri que Montealegre Escalante. The president, chairman, and key management personnel are all citizens of Costa Rica.3

We also note that the applicant is properly licensed by its homeland to perform the proposed services. In addition, by memorandum dated March 18, 2011, t he Federal Aviation Administration advised 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).

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. 3 In particular, we tentatively find and conclude that the factors which support our grant of exemption authority to the applicant also warrant granting the applicant the f oreign air carrier permit it

seeks.

In v iew 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 f oreign air carrier permit in the form

attached for operations with small aircraft ; 4

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 a nd effectively controlled by citizens of its claimed homeland;

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 terms, conditions, and limitations 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 o f 1975, as defined in 14 CFR §313.4(a)(1) of our regulations; 5

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

P resident 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 imple menting regulations that he

3 The applicant’s request for a foreign air carrier permit was summarized in the Department’s published weekly list of applications filed. Th is 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.

4 The applicant spec ifically stated that it was applying to provide its services using small aircraft.

5 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

.4

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, and 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 operations; and that grant of the exemption autho rity 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 Heliservicios Aerobell, S.A. for an exemption under 49 U.S.C. § 40109 to permit it to engage in the following services:

a. Charter foreign air transportation of persons, property and mail between any point or points in Costa Rica and any point or points in the United States;

b. Charter foreign air transportation of pers ons, property and mail between any point or points in the territory of the United States and any point or points in a third country or countries, provided that, such service constitutes part of a continuous operation, with or without a change of aircraft, that includes service to Costa Rica for the purpose of carrying local traffic between Costa Rica and the territory of the United States; and

c. Other charters pursuant to prior approval requirements under 14 CFR Part 212 of the Department’s Regulations;

2. In the conduct of these operations, Heliservicios Aerobell, S.A. may only use aircraft capable of carrying no more than 60 passengers and having a maximum payload capacity of no more than 18,000 pounds ;

3

. The exercise of the privileges granted above is subject to compliance by Heliservicios Aerobell, S.A

. w ith the conditions listed in Appendix A;

4 . Our action granting the exemption authority described herein is effective immediately, for a period of two yea rs f rom the issue date of this order, or unt il 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 acted upon above, we dismiss the applica nt’s request for exemption authority in this docket ( DOT

- OST

- 20 1 1

- 0036 );

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 that app lication, set forth above, should not be made final;5

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

lat er 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 t o, 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 prop erly supported objections are filed, we will give further consideration to the matters and issues raised by the objections before we take further action;

10 . In the event no objections are filed, all further procedural steps shall be deemed waived, and

th e 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 the applicant, the Embassy of Costa Rica 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 petiti ons 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 eff ectiveness.

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,govForeign Air Carrier Exemption Conditions A ppendix 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 authorizatio n 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 foreig n 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 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 Management Branch (AFS

- 260), Flight Standards Service (any changes to, or termination of, insu rance 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 re quirements 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 defe nses;

(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 Sta tes 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 "int ernational 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 f lights 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 prescribed by the Departmen t, 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 abo ve. Moreover, this authority cannot be sold or otherwise transferred without explicit Department approval

under Title 49 of the U.S. Code.

12/2007Appendix B

Issued by

Order



### UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETAR Y WASHINGTON, D.C.

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



### --------------------------------------------------------- HELISERVICIOS AEROBELL, S.A.

A F oreign Air Carrier of Costa Rica

is authorized, subject t o 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 the following services using small aircraft :

a. Charter foreign air transportation of persons, property and mail between any point or points in Costa Rica and any point or points in the United States;

b. Charter foreign air transportation of persons, property and mail between any point or points in the

t erritory of the United States and a ny point or points in a third country or countries, provided that, such service constitutes part of a continuous operation, with or without a change of aircraft, that includes service to Costa Rica for the purpose of carrying local traffic betwe en Costa Rica and the territory of the United States; and

c. Other charters pursuant to prior approval requirements under 14 CFR Part 212 of the Department’s Regulations

.

In the conduct of these operations authorized, the holder may only us e 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 t he 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 period this permit rema ins 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 treaty, convention or agreem ent, 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 f or the service authorized by this permit from the service which may be operated by airlines designated by the

Government of Costa Rica (or, if the right is partially eliminated, then the authority of this permit shallterminate in like part); (3) upon the effective date of any permit granted by the Department to any other carrier designated by the Government of Costa Rica in lieu of the holder; or (4) upon the termination or expiration of the applicable air services agreement between the United States and C osta Rica. 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 Cos ta Rica b ecome parties.

The Department of Transportation 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 appl icable 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 15 46 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 po int 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 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 insurance coverage contained in 14 CFR Part 205, and, prior to the commencement of any operations under this authority, file ev idence 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 requirements of its Government for internation al 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 auth ority 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 i n 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 Sta tes; 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 home land;

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 Departm ent'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 cannot be sold or otherwise transferred without explicit Department approval under Title 49 of the U.S. Code.

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