Order 2010-4-18

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF THE SECRETARY 

WASHINGTON, D.C. 

Issued by the Department of Transportation 

on the 30th day of April, 2010 

 Served April 30, 2010 

 

Application of 

 

JETSTAR AIRWAYS PTY. LIMITED 

Docket DOT-OST-2006-24922 

 DOT-OST-2006-24923 

 

 

for a renewed and amended exemption under 49 U.S.C. 

§40109 and a foreign air carrier permit under 49 U.S.C. 

§41301 

 

ORDER GRANTING EXEMPTION AND TO SHOW CAUSE 

Summary 

By this order we (1) grant the application of the referenced foreign air carrier for a renewed and 

amended exemption under 49 U.S.C. §40109, subject to conditions;1 and (2) tentatively find that 

it is in the public interest to grant the applicant a foreign air carrier permit attached as Appendix 

B to this order. 

Background 

On August 23, 2005, the Department issued a Notice, in Docket OST-2005-22228, announcing 

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

carriers. Among other things, the Notice stated that: 

Assuming, based on the record and on the public interest/public convenience and 

necessity elements germane to our licensing decisions, that we were in a position to act 

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 certificate (or permit), again for the standard 

 

1

 The conditions are attached at Appendix A. 
2

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 reciprocity regimes, indefinite for agreement 

regimes). 

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

application involved in this proceeding. 

Applications 

By application filed August 29, 2008, in Docket DOT-OST-2006-24923, Jetstar Airways Pty. 

Limited (Jetstar), a foreign air carrier of Australia requests a renewal and amendment of its 

current exemption under 49 U.S.C. § 40109 to engage in:2

a. Foreign scheduled and charter air transportation of persons, property and mail from points 

behind Australia via Australia and intermediate points to a point or points in the United 

States and beyond; 

b. Foreign scheduled and charter transportation of property between any point or points in 

the United States and any other point or points; and 

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

On that date, Jetstar also amended its pending application in Docket DOT-OST-2006-24922, for 

a foreign air carrier permit, to conduct the operations described above. 

Responsive Pleadings 

On June 12, 2006, United Air Lines, Inc. (United) filed an answer in response to Jetstar’s 

original applications in the referenced Dockets. On June 21, 2006, Jetstar filed a reply. United 

withdrew its answer on September 8, 2008. 

The Hawaii Tourism Authority filed an answer in support of Jetstar’s request. 

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. 

 

2

 By Notice of Action Taken dated August 14, 2006, in Docket DOT-OST-2006-24923 and renewed by Notice of 

Action Taken dated August 30, 2007, the Department granted Jetstar authority to engage in (1) scheduled foreign 

air transportation of persons, property, and mail between Honolulu, Hawaii, on the one hand, and Sydney and 

Melbourne, Australia, on the other hand; (2) charter foreign air transportation of persons, property and mail between 

the United States and Australia; and (3) other charters in accordance with Part 212 of the Department’s rules. 
3

With respect to the applicant’s request for renewed and amended exemption authority, we find 

that grant of this authority is consistent with the public interest; that the applicant has 

demonstrated, based on the record, that it is financially and operationally qualified to perform the 

services authorized, and that it is substantially owned and effectively controlled by citizens of its 

claimed homeland.3

 We also find that the authority sought by the applicant is encompassed by 

the United States-Australia Air Transport Agreement. 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 earlier, is warranted. 

We also note that the applicant is properly licensed by its homeland to perform the proposed 

services. In addition, by memorandum dated September 24, 2008, 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 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.4

 In 

particular, we tentatively find and conclude that the factors which support our grant of renewed 

and amended 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 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 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; 

 

3

 The applicant states that Jetstar is wholly owned by Qantas Airways Limited, and that Qantas in turn continues to 

be owned and controlled by citizens of Australia. In addition, all of Jetstar’s executive management team are 

citizens of Australia. 

4

 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. 
4

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;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 

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 

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 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 Jetstar Airways Pty. Limited, for a renewed and amended exemption 

under 49 U.S.C. §40109 to engage in 

 a. Foreign scheduled and charter air transportation of persons, property and mail from points 

 behind Australia via Australia and intermediate points to a point or points in the 

United States and beyond; 

 b. Foreign scheduled and charter transportation of property between any point or points in the 

 United States and any other point or points; and 

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

2. The exercise of the privileges granted above is subject to compliance by Jetstar Airways Pty. 

Limited with the conditions listed in Appendix A; 

3. Our action granting the exemption authority described herein is effective immediately, for a 

period of two years from the issue date of this order, or until the attached permit becomes 

effective, whichever is earlier; 

4. We may amend, modify, or revoke the exemption authority set forth herein at our discretion 

at any time and without hearing; 

 

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. 
5

5. To the extent not acted upon above, we dismiss the applicant’s request for exemption 

authority in this docket (DOT-OST-2006-24923); 

6. 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 application, set 

forth above, should not be made final; 

7. Any interested person objecting to the issuance of an order making final our tentative findings 

and conclusions with respect to the applicant’s request for a foreign air carrier permit shall, no 

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

Department and serve on the parties to this proceeding, a statement of objections specifying the 

part or parts of the tentative findings and conclusions objected to, together with a summary of 

testimony, statistical data, and concrete evidence to be relied upon in support of the objections; if 

objections are filed, answers to objections are due no later than seven (7) calendar days 

thereafter; 

8. 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; 

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

the Department will enter an order which will (subject to Presidential review under §41307 of 

Title 49 of the U.S. Code) make final our tentative findings and conclusions set forth in this 

order; and 

10. We will serve a copy of this order on Jetstar Airways Pty. Limited, United Air Lines, Inc., 

the Embassy of Australia 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 Aviation 

(SEAL) 

Appendices 

An electronic version of this document is available on the World Wide Web at: 

http://www.regulations,gov
Foreign Air Carrier Exemption Conditions Appendix 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 authorization with the Department; 

(2) Comply with all applicable requirements of the Federal Aviation Administration, the Transportation Security 

Administration, and with all applicable U.S. Government requirements concerning security, including, but not 

limited to, 14 CFR Parts 129, 91, and 36 and 49 CFR Part 1546 or 1550, as applicable. To assure compliance with 

all applicable U.S. Government requirements concerning security, the holder shall, before commencing any new 

service (including charter flights) from a foreign airport that would be the holder’s last point of departure for the 

United States, contact its International Industry Representative (IIR) (formerly referred to as International 

Principal Security Inspector) to advise the IIR of its plans and to find out whether the 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, 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 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 "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 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 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
Appendix B 

Issued by 

Order 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF THE SECRETARY 

WASHINGTON, D.C. 

-------------------------------------------------------- 

PERMIT TO FOREIGN AIR CARRIER 

--------------------------------------------------------- 

JETSTAR AIRWAYS PTY. LIMITED 

A Foreign Air Carrier of Australia 

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: 

 Foreign scheduled and charter air transportation of persons, property and mail from points 

 behind Australia via Australia and intermediate points to a point or points in the United States 

 and beyond; 

 Foreign scheduled and charter transportation of property between any point or points in the 

 United States and any other point or points. 

The 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 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 pursuant 

to the terms of any applicable treaty, convention or agreement, this permit shall terminate (1) upon the 

dissolution or liquidation of the holder to whom it was issued; (2) upon the effective date of any treaty, 

convention, or agreement or amendment, which shall have the effect of eliminating the right for the service 

authorized by this permit from the service which may be operated by airlines designated by the 

Government of Australia (or, if the right is partially eliminated, then the authority 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 Australia, in lieu of the holder; or (4) upon the termination or 

expiration of the applicable air services agreement to which the United States and Australia are parties. 

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 Australia 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 Air Carrier Permit Conditions 

In the conduct of the operations authorized, the foreign carrier applicant shall: 

1) Not conduct any operations unless it holds a currently effective authorization from its homeland for such 

operations, and it has filed a copy of such authorization with the Department; 

2) Comply with all applicable requirements of the Federal Aviation Administration, the Transportation Security 

Administration, and with all applicable U.S. Government requirements concerning security, including, but not 

limited to, 14 CFR Parts 129, 91, and 36 and 49 CFR Part 1546 or 1550, as applicable. To assure compliance 

with all applicable U.S. Government requirements concerning security, the holder shall, before commencing any 

new service (including charter flights) from a foreign airport that would be the holder’s last point of departure for 

the United States, contact its International Industry Representative (IIR) (formerly referred to as International 

Principal Security Inspector) to advise the IIR of its plans and to find out whether the 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, 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 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 "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 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 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