Order 20 1 2

- 7

- 24

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C.

Issued by the Department of Transportation

on the 20 th d ay of July , 2012

Served: July 20 , 2012

Application of

AEROENLACES NACIONALES, S.A. de C.V. d/b/a

VIVAAEROBUS Docket s DOT

- OST

- 2 011

- 0148

for a n amended foreign air carrier permit under 49 U.S.C. §41301

ORDER TO SHOW CAUSE

Summary

By this order we tentative ly find that it is in the public interest to grant the applicant the amended foreign air carrier permit attached as the Appendix to this order.

Application

By ap plication filed August 9, 2011 1 ( as supplemented May 11, 2012 and June 1 1 , 2012 )

, Aeroenlaces Nacionales, S.A. de C.V. d/b/a vivaAerobus (vivaAerobus) , a foreign air carrier of Mexico , requests an amended foreign air carrier permit under 49 U.S.C. §41301 2 to engage i n scheduled foreign air transportation of persons, property , and mail in the follo wing Mexico

- U.S. markets: Monterrey

Orlando; Monterrey

- Miami; Guadalajara

- Houston; Guadalajara

- San Antonio; Monterrey

- Las Vegas; Monterrey

- Houston; Monterrey

- San Antonio; Monterrey

- Chicago; and Guadalajara

- Las Vegas. 3

1 We note that in this same application vivaAerobus requested exe mption authority and we have previously acted on that portion of its request. See Notice of Action Taken dated August 17, 2011, in the above referenced Docket.

2 vivaAerobus’ current foreign air carrier permit, issued in Docket DOT

- OST

- 2007

- 28919 o n Janua ry 24, 2008, by Order

2008

- 1

- 23 , authorizes it to engage in : 1) scheduled foreign air transportation of persons, property and mail between the Mexican points of Monterrey, Guadalajara, Puebla, Leon, Queretaro, and Cancun, on the one hand, and Austin, Texas , on the other hand; 2) charter foreign air transportation of persons, property and mail between Mexico and the United States; and 3) other charters subject to 14 CFR Part 212 of the Department’s regulations.

3 We note that vivaAerobus currently holds exem ption authority to conduct services in these markets. See Notices of Action

taken in Dockets DOT

- OST

- 2011

- 0148, DOT

- OST

- 2008

- 0095, DOT

- OST

- 2010

- 0082, and DOT

- OST

- 2011

- 0060. vivaAerobus also holds exemption authority to serve the Hermosillo

- Las Vegas mark et in Docket DOT

- OST

- 2009

- 0298 but states that it does not request integration of that route into its foreign air carrier permit. In addition, in its June 11, 20122 The applicant provided evidentiary ma terials required by 14 CFR Part 211 of our regulations to support its requests for authority.

No answers were filed to the application.

Tentative Findings and Conclusions

We tentatively find and conclude that the public interest warrants granting the ap plicant an amended foreign air carrier permit, in the form attached as the Appendix to this order, subject to the conditions

attached and the charter prior approval conditions previously placed on the applicant by Order s 2007

- 11

- 3 and 2008

- 1

- 23

. 4 In parti cular, we tentatively find that grant of this auth ority is in the public interest, and that the applicant has demonstrated, based on the record, that it is financially and operationally fit to perform the services authorized

. 5

With respect to the ownersh ip and control of the applicant, vivaAerobus states in its May 11, 2012

s upplement that it s ownership and control are substantially unchanged from that described in its initial foreign air carrier permit application filed in Docket DOT

- OST

- 2007

- 28919 on Au gust 2, 2007

. In our previous action that granted vivaAerobus’ initial exemption authority and tentatively granted it a foreign air carrier permit , we noted certain non

- homeland involvement (UK and Irish) in the control of the applicant and found that, to the extent a question might exist as to the control of the applicant, a waiver of our ownership and control policy was warranted. 6 In the circumstances presented here, we again find that grant of such a waiver is warranted , as there is nothing in the own ership and control of the applicant that would be inimical to U.S. aviation policy or interests

.

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

between the United States and Mexico. We also note that the appl icant is properly licensed by its homeland to perform the proposed services. In addition, on June 18, 2012, the Federal Aviation Administration advised us that it knew of no reason why we should act unfavorably on the applicant’s requests. We have verifi ed the applicant’s compliance with 14 CFR Parts 203 (Warsaw liability waiver), and 205 (insurance requirements).

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 applic ant a n amended foreign air carrier permit in the form attached;

supplemental filing, vivaAerobus requests that the authority it held in its existing permit to serve Austin, Texas from various Mexican points be removed from its amended permit.

4 The applicant’s request for an amended foreign air carrier permit was summarized in the Department’s published weekly list of applications filed. This notice describ ed 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 applicant has requested confide ntial treatment of its financial submissions, under the provisions of 14 CFR§302.12. Good cause having been shown, we will grant this request.

6 See Order 2007

- 11

- 3, issued on Novembe r 5, 2007 in Dockets DOT

- OST

- 2007

- 28919 and DOT

- OST

- 2007

- 28926

.3 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, a nd to our rules, regulations, and requirements;

3. A waiver of our ownership and control policy is warranted in the circumstances presented ;

4. The public interest requires that the exercise of the privileges granted by the amended permit should

be sub ject 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 of 1975, as defined in 14 CFR §313.4(a)(1) of our regulations; 7

6. The public interest does not require an oral evidentiary hearing on the application; and

7. Our act ion with respect to this amended 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 dat e 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 occurs earlier.

In view of the above, and acting under authority assigned by the Department in its regulations, 14 CFR Part 385, we tentatively find that our actions are consistent with Department policy.

ACCORDINGLY,

1. We direct all interested persons to show cause why o ur tentative decision on the application of Aeroenlaces Nacionales, S.A. de C.V. d/b/a vivaAerobus , set forth above, should not be made final ;

2 . We grant the request of Aeroenlaces Nacionales, S.A. de C.V. d/b/a vivaAerobus for confidential

treatment of its financial submissions, consistent with the provisions of 14 CFR §302.12;

3. 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 car rier 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 tentative findings a nd 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 thereafte r; 8

4

. 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;

7 This f inding 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.

8 Because we are providing for the filing of objections to our tentative decision in this order, we will not entertain petitions

for review of this order.4 5

. In the event no objections are filed, all further procedural steps sha ll 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

6

. We will serve a copy of th is order on Aeroenlaces Nacionales, S.A. de C.V. d/b/a vivaAerobus , the Embassy of Mexico in Washington, D.C., the Federal Aviation Administration, and the U.S. Department of State.

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

Issued by

Order 201 2

-

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C.



### ------------- ------------------------------------------- PERMIT TO FOREIGN AIR CARRIER (as amended)



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



### Aeroenlaces Nacionales, S.A. de C.V. d/b/a vivaAerobus

A F oreign Air Carrier of Mexico

is authorized, subjec t 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 the following :

Scheduled foreign air transportation of persons, property
, and mail between : 1) Monterrey, Mexico and Orlando, Florida; 2) Monterrey, Mexico and Miami, Florida; 3) Guadalajara, Mexico and Houston, Texas; 4) Guadalajara, Mexico and San Antonio, Texas; 5) Monterrey, Mexico and Las Vegas, Nevada; 6) Monterrey, Mexico and Houston, Te xas; 7) Monterrey, Mexico and San Antonio, Texas; 8) Monterrey, Mexico and Chicago, Illinois ; and 9) Guadalajara, Mexico and Las Vegas, Nevada ; and

Charter foreign air transportation of persons, property and mail between Mexico and the

United States

.

Th e 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.

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 i n 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

________ , 20 12 . 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 agreeme nt 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 Mexico (or, if the right is partially eliminated, t hen the authority of this permit shall terminate in like part); (3) upon the effective date of any permit granted by the Department to any othercarrier designated by the Government of Mexico in lieu of the holder; or (4) upon the termination or expiration of the applicable air services agreement between the United States and Mexico . 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 anoth er treaty, convention or agreement to which

the United States and Mexico become parties.

The Department of Transportation has executed this permit and affixed its seal on

______ , 20 1 2

.

By:

PAUL L. GRETCH

Director

Office of International Aviation 

### (SEA L)Attachment 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, a nd 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 s ecurity, 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

servic e (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 ad vise 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 Pa rt 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 Servic e (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 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 W arsaw 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 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 "in ternational 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 th e 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, exce pt 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 inte rest 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.

12/2007