Order 201 2

- 9

- 5

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C

.
Issued by the Department of Transportation

on th e 6 th day of September, 20 1 2

Served : September 6, 2012

Applicatio n of

TAMPA CARGO S.A. Docket DOT

- OST

- 2012

- 0110

for a n exemption under 49 U.S.C. §40109 and an amended foreign air carrier permit under 49 U.S.C. §41301

ORDER GRANTING EXEMPTION AND TO SHOW CAUSE

Sum mary

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 amended foreign ai r 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

c arriers. 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 i ssue 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 correspon ding 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

1 The conditions are attached at Appendix A.2

permits, five years for comity a nd 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.

Application

By application filed July 10, 2012, Tampa Cargo S.A. (Tampa), a foreign air carrier of Colombia, r equests an exemption under 49 U.S.C. §40109, and a n amended foreign air carrier permit under 49 U.S.C. §41301, 2 to engage in : 1) s cheduled and charter f oreign air transportation of property and mail from po ints behind Colombia via Colombia and intermediate points to any point or points in the United States and beyond; and 2) o ther charters pursuant to prior approval requirements set forth in 14 CFR Part 212 of the Department’s regulations.

T he applicant pro vided evidentiary materials required by 14 CFR Part 211 of our regulations to support its requests for authority.

No answers were filed to this application.

Decision

We have decided, under assigned authority and consistent with our August 23, 2005 Notic e referenced above, to grant the applicant’s request for e xemption 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; that the applicant has demonstrated, based on the record, that it is financially and operationally qualified to perform the services a uthorized ; 3 and that it is substantially owned and effectively controlled by citizens of its claimed homeland. 4

The authority sought by the applicant is encompassed by the Air Transport Agreement between

the United States and Colombia. W e therefore fin d that grant of the requested exemption authority, for a one

- 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 July 24, 2012, t he Federal Aviation Administration advised us that it knew of no reason why we should act unfavorably on the applicant’s requests.

2 Tampa’s current foreign air carrier permit was issued on March 9, 1981, by Order 81

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- 94 in Docket 34426 , and permits it to engage in foreign air transportation of property between Med ellin and Bogota, Colombia and the terminal point Miami, Florida , and to engage in charter trips in foreign air transportation.

3 The applicant has requested confidential treatment of its financial submissions, under the provisions of 14 CFR § 302.12. Go od cause having been shown, we will grant this request.

4 The applicant states that Tampa is a privately

- held company and is an indirect wholly

- owned subsidiary of Aerovias del Continente Americano S.A. (Avianca) , a licensed foreign air carrier of Colombia that is substantially owned and effectively controlled by citizens of Colombia. See Order 86

- 9

- 36.3

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 car rier permit, in the form attached as Appendix B and subject to the conditions attached. 5 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 t he amended f oreign 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 n amended f oreign 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 applican t 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 t he 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 Pol icy and Conservation Act of 1975, as defined in 14 CFR §313.4(a)(1) of our regulations; 6

6 . The public interest does not require an oral evidentiary hearing on the application; and

7 . Our action with respect to this foreign air carrier permit should, u nless 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 Execu tive 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

5 The applicant’s request for an amended foreign air carrier permit was summarized in the Department’s published weekly list of applications filed. Th is notice described the authority sought and gave interested persons an opportunity to submit evidence and objections to the award of this foreign air carrier permit authority. As noted above, no answers to the application were filed.

6 This finding is ba sed on the fact that the grant of this permit will not result in a near

- term net annual change in aircraft fuel consumption of 10 million gallons or more.4

respect to the exemption authority we are conferring on the applicant, the applicant is qualified to perform those operations; and that gr ant 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 Tampa Cargo S.A. for an exemption under 49 U.S.C. § 40109 to permit it to engage in : 1) scheduled and charter foreign air transportation of property and mail from points behind Colombia via Colombia and intermediate points to any point or points in the United States and beyond; and 2) other cha rters pursuant to Part 212 of the Department's regulations ;

2

. The exercise of the privileges granted above is subject to compliance by Tampa Cargo S.A.

w ith the conditions listed in Appendix A;

3. We grant the motion of Tampa Cargo S.A. for confidenti al treatment of its financial submissions, consistent with the provisions of 14 CFR § 302.12;

4 . Our action granting the exemption authority described herein is effective immediately, for a period of one year f

rom the issue date of this order, or until t he attached permit becomes effective, whichever is earlier;

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

6 . To the extent not acted upon above, we dismiss the applicant’s request for exemption authority in this docket ( DOT

- OST

- 20 1 2

- 0110 );

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

8 . Any interested person objecting to the issuance of an order making final our tentative findings and conclusions with respect to the applicant’s request for a foreign air carrier permit shall, n o 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 objec ted to, together with a summary of testimony, statistical data, and concrete evidence to be relied upon in support of the objections; if objections are filed, answers to objections are due no later than seven (7) calendar days thereafter;

9 . If 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;

10 . In the event no objections are filed, all further procedural steps shall be deemed waived, a nd 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; and5

1 1 . We will serve a copy of this order on the applic ant, the Embassy of Colombia 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 pet itions 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,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 holds a currently effective authorization from its homeland for such operations, and it has filed a copy of such authoriza tion 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 for eign 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 o ut 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, i nsurance 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 d efenses;

(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 contr act 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 al l 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 applica ble 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 Depart ment, 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.

12/2007Appendix B

Issued by

Order



### UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRE TARY WASHINGTON, D.C.

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

(as amended)



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



### TAMPA CARGO S.A.

A F oreign Air Carrier of Colombia

is authorized, subje ct 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 and charter f oreign air transportation of property and m ail from points behind

Colombia via Colombia and intermediate points to any point or points in the United States and beyond

.

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 app licable 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 sh all 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 op erated by airlines designated by the

Government of Colombia (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 C olombia in lieu of the holder; or (4) upon the termination or expiration of the applicable air services agreement between the United States and Co lombia

. However, clause (4) of this paragraph shall not apply if prior to s uch termination or expiration, the foreign airtransportation authorized herein becomes the subject of another treaty, convention or agreement to which

the United States and Co lombia b ecome parties.

The Department of Transportation has executed this per mit 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 un less 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. Gover nment 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 Repr esentative (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 Fed eral 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 cogni zable 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 Contr acting 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 reportin g 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) Compl y 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 o f the U.S. Code.

1 2 /200 7