Order 20 11

- 8

- 2

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C.

Issued by the Department of Transportation

on the 2 nd day of August , 20 11

Served: August 2

, 2 0 11

Application of

EXEC DIRECT AVIATION SERVICES LTD. Docket DOT

- OST

- 20 11

- 0088

for an exemption under 49 U.S.C. § 4 0109 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 the foreign air carrier permit attached as Appendix B t o 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 Not ice 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 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 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 April 27, 2011, as amended May 24

, 20 11

, and May 31, 2011

, Exec Direct Aviation Services Ltd. (Exec Direct) , a foreign air carrier of Jamaica

, requests an exemption

under 49 U.S.C. § 40109 and a foreign air carrier permit under 49 U.S.C. § 41301 to engage in

, using small aircraft : 2 charter foreign air transportation of property and mail between any point or points in Jamaica and any point or points 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. The applicant reque sts 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 request for authority.

Responsive Pleadings

On May 12, 2011, Amerijet International, Inc. (Amerijet) filed an answer in opposition to Exec Direct’s application

. It also stated that it was concerned with the state of Jamaican reciprocity. Amerijet noted that it has conducted scheduled all

- cargo service to Jamaica for more than a dozen years and has been successful, but that it has been unable to get additional car go facilities from airport authorities at Kingston and has not been permitted access to Montego Bay. It stated that an equal opportunity for it to compete must exist before Exec Direct can hold Department operating authority; and that its lack of adequate access to cargo facilities at the airport in Kingston and lack of authority to serve Montego Bay shows a failure of reciprocity. Amerijet also stated that Exec Direct did not provide certain evidence needed to support its application.

Exec Direct filed a reply on May 24, 2011, stating that Amerij et has admitted that it does have access to Jamaica; and that if it is having trouble obtaining additional warehouse sp a ce, that is neither a reciprocity issue nor a basis for denying Exec Direct’s application. It stated that the

Government of Jamaica has not breached the U.S.

- Jamaica Agreement, as Amerijet has not been denied any authority by that Government. Exec Direct further stated that it does not have warehouse facilities at either Jamaican airport, but u ses an independent ground handler providing the limited space it needs. Exec Direct noted that it would be operating with one Saab 340A aircraft; that it was looking to perform express package/cargo service as opposed to Amerijet’s general cargo service; and that it would be Jamaica’s first and only all

- cargo carrier, while numerous U.S. cargo carriers are in the market. With respect to Amerijet’s assertions about its evidentiary submissions, Exec Direct stated that it would supplement its application to address

that issue.

Amerijet responded to Exec Direct’s reply on June 3, 2011, reiterating that because its recent requests for additional operational space had not been approved, the Department should not grant Exec Direct’s request until the Government of Jamaica meets its obligations under the

2 Exec Direct states in its application that it intends to operate with a Saab 340A aircraft.3

Agreement. It stated that the Agreement gives carriers of both sides a fair and equal opportunity to compete, and stated that it was denied this right because it has been denied adequate facilities.

Also on June 3, 2011, Exec Direct replied, asking that we take no notice of Amerijet’s response, as it contained, in its view, no new arguments. It stated that its application was now complete, and that Amerijet should not be allowed to further delay the proceeding. 3

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 respect to the applicant’s request for exemption authority, we find that grant of this authority is consistent with the public interest; that the applicant has demo nstrated, 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

The authority sought by the applic ant is encompassed by the Air Transport Agreement between

the United States and Jamaica

. 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 ea rlier, is warranted.

We also note that the applicant is properly licensed by its homeland to p erform the proposed services. In addition, on June 8 , 20 11 , t he Federal Aviation Administration a dvised 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).

With respect to the concerns raised by Amerijet

, we first note that Exec Direct has su pplemented its application, and we now have a n adequate record on which to base our decision. W e have furthermore taken note of Amerijet’s asserted difficulties in contracting for additional warehouse

space at the airport in Kingston

, and in obtaining aut hority to serve Montego Bay. However , w e do not see specific evidence on the record that would warrant withholding the bilaterally

authorized authority Exec Direct seeks to provide with its proposed small

- aircraft all

- cargo services. 6

3 Amerijet and Exec Direct accompanied their June 3 responsive pleadings with motions for leave to file. In order that we may have a complete record in this case, we will grant these motions. We will continue to monitor Amerijet ’s efforts to secure the access it seeks, and reserve the right to take appropriate action in the future as necessary.

4 The applicant has requested confidential treatment of its initial capitalization and revenue forecasts, under the provisions of 14 CFR 302.12. Good cause having been shown, we will grant these requests.

5 The record indicates t hat Exec Direct is owned by Jamaican citizens , and that Exec Direct’s Directors, Officers, and key management personnel are all Jamaican citizens

. 6 For example, Amerijet did not provide evidence of its having formally requested Montego Bay auth ority from the Jamaican Government (including the specific date of any such application) or of the Jamaican Government’s having denied such a request. Furthermore, in response to our inquiries, the Jamaican civil aviation authorities indicated4

Tentative Findings and Conclusions

-- Foreign Air Carrier Permit Application

We tentatively find and conclude that the p ublic 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 factors 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 public interest to issue the applicant a f oreign air carrier permit in the form

attached , for operations with small aircraft ;

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 granted by t he 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 a ir 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 applic ation ; 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 review, or upon the date of receipt of advice from the President or his designee under Executive Order 12597 and implementing regulations that he

that they h ave not received an application from Amerijet to serve Montego Bay. Similarly, the information provided by Amerijet regarding its efforts to secure more warehouse space in Kingston does not provide a persuasive basis to withhold bilaterally

- authorized aut hority from Exec Direct. If we were to learn that the Jamaican aviation authorities were not honoring duly filed requests by Amerijet to secure bilateral rights, we would certainly be prepared to pursue the matter through diplomatic channels.

7 The applic ant’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 a ward of this foreign air carrier permit authority.

8 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.5

or she does not intend to disapprove this portion of the Department’s decision under that section,

whichever occurs ea rlier.

In view of the above, an d acting under authority assigned by the De partment in its regulations,

14 CFR Part 385, we find that (1) our actions are consistent with Department policy; (2) with respect to the exemption authority we are conferring on the applicant, the applicant is qualified to perform those operation s; and (3) that grant of the exemption authority is consistent with the public interest and would not constitute a major regula tory action under the Energy Policy and

Conservation Act of 1975.

ACCORDINGLY,

1. We grant the request of Exec Direct Aviation Services Ltd. for an exemption under 49 U.S.C. §40109 to permit it to engage in charter foreign air transportation of property and mail between any point or points in Jamaica and any point or points 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;

2. In the conduct of these operations, Exec Direct Aviation Services Ltd. 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 ; 9

3. We grant the motions of Exec Direct Aviat ion Services Ltd. for confidential treatment of its initial capitalization and projected revenue forecasts, consistent with the provisions of 14 CFR §302.12 , and also grant all motions for leave to file ;

4

. The exercise of the privileges granted above is subject to compliance by Exec Direct Aviation

Services Ltd. with the conditions listed in Appendix A;

5

. Our action granting the exemption authority described herein is effective immediately, for a period of two year s 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 the applicant’s request for exemption authority in Docket DOT

- OST

- 20 11

- 0088 ;

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 cause 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 a ir carrier permit shall, no later than twenty

- one (21) calendar days after the date of service of this order, file with the

9 In its application, the app licant specifically stated that it was applying to provide its services using small aircraft.6

Department and serve on the parties to this proceeding , a statement of objections specifying the part or parts of the tentative find ings 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) calendar days

the reafter;

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 step s 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 2

. We will serve a copy of this order on Exec Direct Aviation Services Ltd.

, Amerijet International, Inc., the Embassy of Jamaica 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 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 , 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 Carrier Exemption Conditions Appendix A

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 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 b e 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 Transporta tion 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 requireme nts 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 defense s;

(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 St ates 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 "inte rnational 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 al l 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 th e 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

condi tions imposed above. 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 20 11

-

_ -

_

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C.



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



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



### Exec Direct Aviation Services Ltd.

A Foreign Air Carrier o f Jamaica

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 charter foreign air transportation of property and mail as follows:

Between any point or points in Jamaica and any point or points in the United States

, and

b etween any point or points in the United States and any point or points in a third country or countries

.

In the conduct of these operations, the holder 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.

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 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

pur suant 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 Jamaica (or, if the right is partially eliminated, then the authori ty of this permit shall terminate in like part); (3) upon the effective date of any permit granted by the Department to any other carrier designated by the

Government of Jamaica in lieu of the holder; or (4) upon the termination or expiration of the applic able air services agreement between the United States and Jamaica . However, clause (4) of this paragraph shall not apply if prior to such termination or expiration, the foreign air9

transportation authorized herein becomes the subject of another treaty, co nvention or agreement

to which the United States and Jamaica become 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 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 co py 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, a nd 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 I IR 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 u nder 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 with operational safety requirements at least equivalent to Annex 6 of the Chicago Convention;

(5) Conform to the airworthiness and airman competency requiremen ts 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 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 "inter national 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 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

condit ions 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 / 2007