Order 20 14

- 5

- 1

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 May

, 201 4

Served: May 2 , 201 4

Applica tion of

COMPAGNIE A E RIENNE INTERR E GIONALE EXPRESS (CAIRE) dba AIR GUYANE EXPRESS /

AIR ANTILLES EXPRESS Docket DOT

- OST

- 20 13

- 0200

for an 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 an exemption under 49 U.S.C. §40109, subject to conditions; 1 and (2) tentatively find that it is in the public interest to grant the applicant a foreign air carrier permit attached as Appendix B to this order.

Application

By application filed November 1 4 , 2013

, Compagnie A é rienne Interr é gionale Express (CAIRE) dba Air Guyane Express / Air Antilles Express (CAIRE)

, a foreign air carri er of France

, 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, scheduled and charter foreign air transportation of persons
, property , and mail between Guadeloupe, Mar tinique

, and St. Martin, on the one hand, and San Juan, Puerto Rico , on the other hand

. 2

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

1 The conditions are attached as Appendix A.

2 On February 18, 2014, CAIRE filed a document indicating that we could defer action on the St. Martin

- San Juan

route request included in its application. In the interest of administrative convenience, we have decided to proceed

on the entirety of the appl icant’s bilaterally

- authorized request.2

Responsive Pleadings

We receive d no answers within the prescribed regulatory time period for responsive pleadings.

On February 3, 2014, Mr. Serge Barder filed an objection to CAIRE’s application and urged the Department to require additional information from the carrier before granting t he requested authority

. 3 Mr. Barder claims to be a former employee of the applicant and raises a number of

issues question ing the completeness and accuracy of the fitness and other information submitted by CAIRE in its application . Mr. Barder also makes various assertions regarding CAIRE’s compliance disposition

.

CAIRE filed a response on February 6, 2014. CAIRE states that Mr. Barder was never a CAIRE employee and argues that he has provided no basis for his late

- filed and otherwise unauthorized obje ction

. CAIRE states that it has provided all information required under DOT’s U.S.

- EU Reciprocal Recognition Procedures Notice dated February 19, 2009. It further states that i t s application contains no misleading or inaccurate information. CAIRE notes that it is an airline

based in a French overseas territory , it is requesting authority covered by the EU

- U.S. “Open

Skies” Air Transport Agreement, and it is duly licensed by the DGAC of France. In sum, CAIRE

argues t hat its application is complete and sh ould be granted without further delay.

On February 18, 2014, Mr. Barder filed an additional pleading in opposition, responding to certain points in CAIRE’s February 6 submission and addressing many of the same points raised in his February 3 filing. CAIR E filed an additional response on February 25, 2014, responding further to the assertions made by Mr. Barder.

Decision

We have decided to grant the applicant’s request for exemption authority, subject to conditions, and tentatively to grant, subject to s how

- cause procedures, its request for a foreign air carrier permit, also subject to conditions.

Specifically, we will grant CAIRE exemption authority for the services set forth in ordering paragraph 1 below. We will tentatively grant CAIRE a foreign air carrier permit for these services, as discussed below.

With respect to the applicant’s request for exemption authority, we find that grant of this authority, as conditioned, is consistent with the public interest . We also find that the applicant is

finan cially and operationally qualified to perform the services authorized

, and that it is substantially owned and effectively controlled in a manner consistent with the provisions of the

U.S.

- EU Agreement

. 4 We also find that the authority sought by the applic ant is encompassed by

the U.S.

- EU Agreement.

3 We will accept all late

- filed and otherwise unauthorized pleadings.

4 We make this finding based on Article 2 ( Reciprocal Recognition of Regulatory Determinations with Regard to Airline Fitness and Citizenship ) of the Protocol to amend the U.S.

- EU Air Transport Agreement, signed June 24,

2010.3

Further, we note that the applicant is properly licensed by its homeland to perform the proposed services. In addition, by memo dated November 19, 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 requirements).

With respect to Mr. Barder ’s request that we requi re CAIRE to provide additional information pri or to acting on its application

, we have determined that CAIRE has provided in its application

the information required for us to determine that grant of its request is in the public interest

. 5

Nor do we find in the additional matters raised by Mr. Barder a persuasive basis to reach a

different ou t come

. As noted above

, CAIRE is pr operly licensed by its homeland, and we see no basis to withhold from CAIRE the bilaterally

- authorized authority it seeks. 6

In view of the above, we find that grant of the requested exemption authority, as conditioned, for

a two

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

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

In view of the foregoing and all facts of record, we tenta tively find and conclude that:

1. It is in the public interest to issue the applicant a foreign air carrier permit in the form

attached , for operations with small aircraft ; 8

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;

5 See Notice dated February 19, 2009

, in the matter of Application Procedures for Foreign Air Carriers of the European Union

. 6 We note that Mr. Barder made assertions on th e record that CAIRE had advertised and sold service to San Juan without Department authority

. In response, CAIRE states that its website briefly listed San Juan flights but that is no longer the case and no sales of San Juan flights have been registered w ith the company. While we do not view this

as a matter that rises to a level that warrant s withholding of the requested authority, we have nonetheless referred this matter to the Assistant General Counsel for Aviation Enforcement and Proceedings, for cons ideration and such action, if any, as may be deemed appropriate

. 7 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.

8 The record shows that the applicant will provide the service requested using small aircraft.4

3. The applicant is substantially owned and effectively controlled in a manner consistent wit h the provisions of the U.S.

- EU Agreement ;

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 reasonabl e 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; 9

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 Unite d 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 t hat 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, we find that (1) our actions are consistent with Department policy; and (2) with respect to the exemp tion 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 Compagnie Aérienne Interrégionale Express (CAIRE) dba Air Guyane Express / Air Antilles Express for an exemption under 49 U.S.C. §40109 to engage in foreign scheduled and cha rter air transportation of persons

, property , and mail between Guadeloupe, Martinique, and St. Martin, on the one hand, and San Juan, Puerto Rico , on the

other hand

.

2. In the conduct of these operations, Compagnie Aérienne Interrégionale Express (CAIRE) dba Air Guyane Express / Air Antilles Express may only use aircraft capable of carrying no more than 60 passengers and having a maximum payload capacity of no more than 18,000 pounds;

3

. The exercise of the privileges granted above is subject to complia nce by Compagnie Aérienne Interrégionale Express (CAIRE) dba Air Guyane Express / Air Antilles Express with the conditions listed in Appendix A;

9 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

4 . Our action granting the exemption authority described herein

, subject to the provisions of ordering paragr aph s 1 through 3 above, 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;

5. We may amend, modify, or revoke the exemption authority set forth here in at our discretion at any time and without hearing;

6 . To the extent not acted upon above, we dismiss all requests for exemption authority in this

Docket ( DOT

- OST

- 20 13

- 0200 ) ;

7 . With respect to the applicant’s request for a foreign air carrier permit in this proceeding, we direct all interested persons to show cause why our tentative decision on that application, set forth above, should not be made final;

8

. Any interested person objecting to the issuance of an order making final our tentative findi ngs 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 fil ed, answers to objections are due no later than seven (7) calendar days thereafter;

9

. 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 act ion;

1 0

. 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 find ings and conclusions set forth in this order; and6

1 1 . We will serve a copy of this order on Compagnie Aérienne Interrégionale Express (CAIRE) dba Air Guyane Express / Air Antilles Express

, Mr. Serge Barder, the Embassy of France in Washington

, D.C., the Department of State, and the Federal Aviation Administration.

By:

SUSAN L. KURLAND Assistant Secretary for Aviation

and International Affairs

(SEAL)

Appendices

An electronic version of this document is available on the World Wide Web at: http://www.regulations.govForeign 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 hol ds 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

Ad ministration, 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 requi rements 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) Co mply 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 Aviati on 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 req uirements 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 Departmen t 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), bu t 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 Parti es 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 a Member State of the European Union;

(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 applicab le 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

app roval under Title 49 of the U.S. Code.

EU carrier 0 1 /200 8Appendix B

Issued by

Order 20 1 4

-

__ -

__

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C.



### -------------------------------------------------------- PER MIT TO FOREIGN AIR CARRIER



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

### Compagnie Aérienne Interrégionale Express (CAIRE) dba Air Guyane Express / Air Antilles Express

A Foreign Air Carrier of France

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:

F oreign scheduled and charter air transportation of persons
, property , and mail

between Guadeloupe, Martini que, and St. Martin, on the one hand, and San Juan,

Puerto Rico , on the other hand

.

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 1 8,000 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, co nvention 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 sha ll 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 of the European Union and i ts Member States (or, if the right is partially eliminated, then the authority of this permit shall terminate in like part); or (3) upon the termination or expiration of the applicable air services agreement between the United States and the European Union and its Member States. However, clause (3) 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 S tates and the European Union and its Member States become parties.The Department of Transportation has executed this permit and affixed its seal on

By:

SUSAN L. KURLAND Assistant Secretary for Aviation

and International Affairs



### (SEAL)Foreign Ai r 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 n ot 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 flig hts) 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 plan s 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 th e 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 te rmination 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 ai rman 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 liabili ty 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 transport ation" 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 o r terminate all flights to/from the United States

in a Member State of the European Union;

(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 pu blic 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 i s 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.

EU carrier 01/2008