Order 2012-11-38

 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 November, 2012

 Served: November 30, 2012

Application of

FLY JAMAICA AIRWAYS LIMITED Docket DOT-OST-2012-0171

 

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 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,

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 

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 

application 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 foreign air carrier permit under 49 U.S.C. §41301, 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 

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

2

With respect to the ownership and control of the applicant, the 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, as 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 encompassed 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. As 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 perform the proposed 

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

Administration advised us that it knew of no reason why we should act unfavorably on the

applicant’s requests. We have 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.

3

 In

particular, we 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 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’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. 
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 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;4

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 Fly Jamaica Airways Limited for 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 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 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 

Limited 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 years 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-2012-0171);

8. 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;

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 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;

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;

11. 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

12. We will serve a copy of this order on the applicant, the Embassy of Jamaica 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 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
Appendix A 

Foreign 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, 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 (AFS260), 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 2012-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 Foreign 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 Jamaica 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 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 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 

Government 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 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(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 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