Order 20 12

- 11

- 38

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY
WASHINGTON, D.C.

Issued by the Department of Transportation

on the 30 th day of November

, 20 1 2

Served: November 30 , 2012

Application of

FLY JAMAICA AIRWAYS LIMITED Docket DOT

- OST

- 2012

- 0171

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 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 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).

1 The conditions are attached as Appendix A.Our action in this Order serves to implement these streamlined regulatory procedures for the

ap plication involved in this proceeding.

Application

By application filed October 11 , 2012 (as amended October 15, 2012)

, Fly Jamaica Airways Limited (Fly Jamaica) , a foreign air carrier of Jamaica

, 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 : 1) scheduled foreig n air transportation of persons and property from a point or points behind Jamaica, via Jamaica and intermediate points, to a point or points in the United States and beyond; 2) charter

service s pursuant to Part 212 of the Department’s regulations.

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

Responsive Pleadings

On October 25, 2012, Mr. John Gilmore filed an answer in support of Fly Jamaica ’s request.

In addition to expressing his support for Fly Jamaica ’s application, Mr. Gilmore asserts that Caribbean Airlines Ltd. (CAL), a foreign air carrier serving the Jamaica

- U.S. market, is subsidized by the Government of Trinidad and Tobago, and suggests that we monitor the

activities of CAL to assure that it does not engage in predatory pricing in competing with Fly

Jamaica

. Mr. Gilmore also states that the application of Fly Jamaica does not contain flight schedule information that would allow the Department to assess the level of sixth

- freedom traffic

that the carrier would transport; and questions whether certain fitness information regarding capital requirements, that is required of U.S. carrier applicants, is also required of foreign carrier applicants.

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 requ est 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 record , that it is financially and operationally qualified to perform the services authorized

. 2

With respect to the ownership and control of the applicant, t he record indicates that 60% of Fly Jamaica’s shares are held by citizens of Jamaica, with the remaining 40% held by Mr. Paul Ronald Reece, a citizen of Guyana who also serves as the applicant’s Chairman, Managing

2 The applicant has requested confidential treatment of its financial submissions under the provisions of 14 CFR §302.12. Good cause having been shown, we will grant this request.Director , and Director of Operations. Of the remaining personnel identified as Board Members and key management personnel of Fly Jamaica , four are Jamaican citizens, one is a Guyanese citizen, one is a dual Jamaica

- U.S. citizen, and one is a dual Canada

- Guyana citizen. Given the

non

- homeland involvement in the ownership and control of the applicant

, we find that a waiver

of our ownership and control policy is warranted in the circumstances presented, a s there is nothing in the ownership and control of the applicant that would be inimical to U.S. aviation policy or interests

.

The authority sought by the applicant is enc ompassed by the U.S.

- Jamaica 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 have taken note of the subsidy and pricing concerns raised by Mr. Gilmore with respect to

CAL and have determined that those issues are not germane to this licensing proceeding. A s to his concerns over the evidentiary submissions of Fly Jamaica, we note that the fitness information we require for U.S. and foreign air carriers is set forth in detail in 14 CFR Parts 204 and 211, respectively, and that the information provided by Fly Jamaica in this proceeding is, in the circumstances presented, sufficient to support our finding concerning its operational and financial qualifications.

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

services. In addition, by memorandum dated November 2, 2012, the Federal Aviation

Administr ation 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 Co nclusions

-- 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

. 3 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 foreign air transportation

described in t he 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 ’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 awar d of this foreign air carrier permit authority.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 other reasonable terms, conditions, and limitations 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; 4

6 . The public interest d oes 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 Depa rtment’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 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 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 Fly Jamaica Airways Limited f or an exemption under 49 U.S.C.
§40109 to permit it to engage in : 1) scheduled foreign air transportation of persons and property from a point or points behind Jamaica, via Jamaica and intermediate points, to a point or points in the United States and beyond; 2) charter foreign air transportation of persons and property between any point or points in Jamaica and any point o r 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 continuous operation, with or without a change of aircraft, that includes service to Jamaica for the purpose of carrying local traffic between Jamaica and the United States; and 3) other charter operations pursuant to Part 212 of the Department’s regulations ;

2

. The exercise of the privileges granted above is subject to compliance by Fly Jamaica Airways

Limit ed with the conditions listed in Appendix A;

4 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.3. 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 ;

4 . We grant the request of Fly Jamaica Airways Limited for confidential treatment of its

financial statements and balance sheets , consistent with the provisions of 14 CFR § 302.12;

6

. We may amend, modify, or revoke the exemption authority set forth herein 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 this Docket (DOT

- OST

- 20 12

- 0171 ) ;

8

. With respect to the applicant’s request for a fore ign 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 air carrier permit shall, no later than twenty

- one (21) calendar days after the date of se rvice 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;

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 steps shall be deemed waived, and the Department will enter an order which will (subject to P residential 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 2

. We will serve a copy of this order on the applicant, the Embassy of Jamaica in Washington, D.C., the Federal A viation 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 file their petitions within seven (7) days after the date ofissuance 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.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 Admini stration, 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

w ith 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 it s 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

comp leted 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 authorit y 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 specif ically 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 s overeign 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 transportat ion 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

un der 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 govern ing 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.

1 2/2007Appendix B

Issued by

Order 20 1 2

- X

- X

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C.



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



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



### Fly Jamaica Airways Limited

A F oreign Air Carrier of 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 :

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

Charter foreign air transportation of persons and property 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, provided that, except with respect to cargo charters, such service constitutes part of a continuous operation, with or without a change of aircraft, that includes service to Jama ica for the purpose of carrying local traffic between Jamaica and the United States

.

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 wh om it was issued; (2) upon the effective date of any treaty, convention, or agreement or amendment, which shall have theeffect 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 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

G overnment of Jamaica in lieu of the holder; or (4) upon the termination or expiration of the applicable air services agreement between the United States and the Government of Jamaica

. 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 the Government of Jamaica become parties.

The Department of Transportation has execut ed 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(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 Aviati on 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 com pliance 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, c ontact 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 /200 7