Order 2013

- 5

- 16

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY
WASHINGTON, D.C.

Issued by the Department of Transportation

on the 29 th day of May , 2013

Served: May 29 , 2013

Application of

INSEL AIR ARUBA N.V. 1 Docket DOT

- OST

- 2013

- 0035

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; 2 and (2) tentatively find that it is in the public

interest to grant the applicant the 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

, announcin g 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 g ermane 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 certificate (or permit), again for the standard duration we would normally have imposed (such as, in the case of certificates, five

1 The applicant originally filed its request in the name of Insel Air International N.V. d/b/a InselAir Aruba. On April 16, 2013, the applicant provided evidence in the referenced Docket that its legal trade name had been changed to

InselAir Aruba N.V.

2 The conditions are attached as Ap pendix A.years for limited

- entry markets, indefinite for open

- entry markets, and in the case of permits, five years for comity and reciprocity regimes, indefinite for agreement regimes).

Our action in this Order serves to implement these streamlined regulatory procedures for the

ap plication involved in this proceeding.

Application

By application filed February 20, 2013 (as supplemented)

, InselAir Aruba N.V. (InselAir Aruba)

, a foreign air carrier of Aruba

, requests an exemption under 49 U.S.C. § 40109

, and a

f

oreign air carrier permit under 49 U.S.C. § 41301, to engage in scheduled foreign air transportation of persons, property and mail from points behind Aruba via Aruba and intermediate points to a point or points in the United States and beyond, as well as ch arter air transportation pursuant to Part 212 of the Department’s Economic Regulations.

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

On April 11, 2013, the applicant provided supplemental information summarizing the experience of its key personne l. On April 16, 2013, it provided evidence of a change in its legal trade name

.

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

the r ecord, that it is financially and operationally qualified to perform the services aut horized. 3

However, due to the involvement of non

- Aruban residents in the ownership and control of

InselAir Aruba , the record in this case does not permit us to make definitive findings that the

carrier is substantially owned and effectively controlled by nationals

, as defined in the Air Transport Agreement between the United States o f America and the Kingdom of the Netherlands in respect of Aruba relating to Air Trans port between Aruba and t he United States Of America

, signed September 18, 1997 (the “Agreement”) 4

. With re gard to the ownership of the applicant,

InselAir Aruba states that 70% of it s shares are held by the Aruban entity CFS Aruba N.V. (CFS

3 The applicant has requested confidential treatment of its traffic and financial forecasts , under the provisions of

14 CFR §30 2 .12. Good cause having been shown, we will grant this request.

4 Per the Agreement, “nationals” is defined as, “... i n the case of the United States... nationals of the United States, and in the case of the Kingdom of the Netherlands its nationals who are permanent residents of Aruba .”Aruba) and 30 % are held by InselAir International B.V., a foreign air carrier of Curacao. The

record indicates that CFS Aruba is owned by Mr. Albert Kluyver and Mr. Niko Kluyver, both of

whom are Dutch permanent residents of Curacao. The record further indicates that InselAir International B.V.’s reported stock is ultimately held, through various companies, by a number of entities of Dutch nationality. With respect to the control of the applicant, Mr. Albert Kluyver

and one other individual are Dutch permanent residen ts of Curacao, and serve as the applicant’s

President and Chief Maintenance Officer , respectively. The remainder of the applicant’s key management personnel consists entirely of nationals as defined in the Agreement

.

In spite of the fact that we are un able to find that InselAir Aruba is substantially owned and effectively controlled by nationals as defined in the Agreement , we find it appropriate to waive

our own ership and control requirements

, as there is no evidence on the record which would suggest that the ownership and control of InselAir Aruba would be inimical to U.S. aviation policy or interests.

We also note that the applicant is properly licensed by its homeland to perform the proposed services. In addition, on March 22, 2013 , the 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 requi rements).

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. 5 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 foreign air carrier permit in the form

attached ;

2. The applicant is fit, willing and able properly to perform the forei gn 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. 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 permit should be subject to the terms, conditions, and limitations contained in the attached permit, and to such

5 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, n o answers

to the application were filed.other reasonable terms, conditions, and limitat ions required by the public interest as we may prescribe;

5

. The issuance of this f oreign 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; 6

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 Tit le 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

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

whichever occurs 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 consi stent 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 Insel Air Aruba N.V. for an exemption under 49 U.S.C. §40109 to permit it to engage in : 1) scheduled foreign ai r transportation of persons, property and mail from points behind Aruba via Aruba and intermediate points to a point or points in the United States and beyond ; 2) charter foreign air transportation of persons, property, and mail b etween any point or points in Aruba 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, provided that, except with respect to cargo charters, such service constitutes part of a c ontinuous operation, with or without a change of aircraft, that includes service to Aruba for the purpose of carrying

local traffic between Aruba and the United States; and 3) other charters pursuant to the prior approval requirements set forth in part 212 of the Department’s Economic Regulations;

2

. The exercise of the privileges granted above is subject to compliance by Insel Air Aruba N.V.

with the conditions listed in Appendix A;

3

. We grant the request of InselAir Aruba N.V. for confidential treatment of its traffic and financial forecasts, consistent with the provisions of 14 CFR §302.12;

6 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

. 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 ;

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 applicant’s request for exemption authority in this Docket (DOT

- OST

- 2013

- 0035 ) ;

7

. 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;

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 s hall, 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 and conclusion s 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 thereafter;

9

. If ti mely 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;

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. In the event no objections are filed, all further procedural steps shall be deemed w aived, 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 conc lusions set forth in this order; and

1 1

. We will serve a copy of this order on the applicant, the Embassy of Aruba in Washington, D.C., the Federal Aviation Administration, and the U.S. Department of State

.

Persons entitled to petition the Department for review of this order under the Department’s regulations, 14 CFR §385.30, may fi le 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 authorityunder 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.govAppendix A

F oreign Carrier Exemption 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 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, 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 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 c hanges 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 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 i t 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 te rm "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 author ized 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 a re 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 req uired 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 wh en 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 2/2007Appendix B

Issued by

Order 20 1 3

- X

- X

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C.



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



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



### INSELAIR ARUBA N .V.

A F oreign Air Carrier of Aruba

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 foreign air transportation of persons, property and mail from points behind Aruba via Aruba and intermediate points to a point or points in the United States and beyond; and

Charter foreign air transportation of persons, property, and mail between any point or points in Aruba 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, provided that, except with respect to cargo charters, such service constitutes part of a

c ontinuous operation, with or without a change of aircraft, that includes service to Aruba for the purpose of carrying local traffic between Aruba and the United States.

The holder shall also be authorized to engage in other charter trips in foreign air tr ansportation, 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 i ssuing 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 eff ect, to which the United States and the holder’s homeland are or shall become parties.

This permit shall be effective on

, 20 1 3 . Unless otherwise terminated at an earlier date pursuant to the terms of any applicable treaty, convent ion 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 bila teral right for the service authorized by this permit from the servicewhich may be operated by airlines designated by the Government of Aruba (or, if the right is partially eliminated, then the authority of this permit shall terminate in like part); (3) u pon the effective date of any permit granted by the Department to any other carrier designated by the

Government of Aruba in lieu of the holder; or (4) upon the termination or expiration of the applicable air services agreement between the United States an d Aruba . 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 Aruba become parties.

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

______ , 20 1 3

.

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(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 und er 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 b e 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 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 State s 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 "interna tional 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 b y 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 conditi ons 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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