Order 2015

- 2

- 11

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C

.

Issued by the Department of Transportation

on the 25 th day of February, 2015

Served: February 25, 2014

Application o f

EUROATLANTIC AIRWAYS TRANSPORTES AEREOS, S.A. Docket DOT

- OST

- 200 8

- 0222

for a n exemption 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

Summary

By this orde r 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 air carrier permit a ttached as Appendix B to this order.

Background

By Notice dated May 3, 2007, we invited foreign air carriers of the European Union (EU) to apply for Department economic authority to conduct operations to and from the United States under the U.S.

- EU Air Transport Agreement. In that Notice, we stated that we anticipated handling these EU carrier requests on an expedited basis to ensure that affected EU carriers may receive the authority available to them under the Agreement as quickly as possible.

Appl ication

By application filed December 11, 2014

, euroAtlantic Airways Transportes Aer e os, S.A. (euroAtlantic) , a foreign air carrier of Portugal, requests a n exemption under 49 U.S.C.§40109 and an amended foreign air carrier permit under 49 U.S.C. §41301, to engage in: 2

1 The conditions are attached as Appendix A.

2 euroAt lantic currently holds a foreign air carrier permit from the Department that authorizes it to conduct : 1) f oreign charter air transportation of persons, property, and mail from any point or points behind any Member State of the European Union, via any poin t or points in any Member State and via intermediate points to any point or points in the United States and beyond; 2) foreig n charter air transportation of persons, property, and mail between any point or points in the United States and any point or p oint s in any member of the European Common Aviation Area; 3) foreign charter cargo air transportation between any point or points in t he United States and any other point or points; 4) other charters pursuant to the prior approval requirements set forth in 14 CFR Part 212 of the Department’s regulations; and 5) charter transportation authorized by any additional route rights made available t o European Community carriers in the future, subject to conditions

. See Order 2008

- 11

- 13, issued September 15, 2008 , in t he instant

Docket

.a. foreign scheduled air transportation of persons, property, and mail from any point or points behind any Member State of the European Union , via any point or points in any Member State and via intermediate points, to any point or points in the United States and beyond;

b. foreign scheduled air transportation of persons, property, and mail between any point or points in the United States and any point or points in any member of the European Common Aviation Area;

c. foreign scheduled cargo air transportation between any point or points in the United States and any point or points; and

d. transportation consistent with an y future, additional rights that may be granted to foreign air carriers

of the Member States of the European Union

.

The applican t provided evidentiary materials required by 14 CFR Part 211 of our regulations to support its request for authority.

No answers were filed to the application.

Decision

We have decided, consistent with our August 23, 2005 Notice referenced above, to g rant the applicant’s request for exemption authority, as described below and subject to conditions, and tentatively to grant, subject to show

- cause procedures, its request for a n amended foreign air carrier permit, also subject to

conditions.

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

With respect to the applicant’s request for exempt ion authority, we find that grant of this authority, as conditioned, is consistent with the public interest. We also find that the applicant is financially 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. 3 We also find that the authority sought by the applicant is encompassed by the U.S.

- EU Agreement.

Further, we note that the applicant is properly licensed b y its homeland to perform the proposed services. In addition, on February 3, 2015 , the Federal Aviation Administration advised us that it knew of no reason why we should act unfavorably on the applicant’s request. We have verified the applicant’s complia nce with 14 CFR Parts 203 (Warsaw liability waiver), and 205 (insurance requirements).

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 amended permit authority beco mes effective, whichever occurs earlier, is

warranted.

Tentative Findings and Conclusions

— Amended Foreign Air Carrier Permit Application

In view of the foregoing and all facts of record, and acting under authority assigned by the Department in its regula tions, 14 CFR Part 385, we tentatively find and conclude that:

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

3 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, 2010.2. The applicant is fit, willing and able properly to perform the foreign air transportation described in the attached permit and to conform to the provisions of Title 49 of the U.S. Code, and to our rules, regulations, and requirements;

3. The applicant is substantially owned and effectively controlled in a manner consistent with 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 reason able 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

Un ited 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 regulation s 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, we find that, with respect to the exemption authority we are conferring on the applicant, the appl icant 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. W e grant the request of euroAtlantic Airways Transportes Aereos, S.A. for an exemption under 49 U.S.C. §40109 for the services set forth below:

a. Foreign scheduled air transportation of persons

, property , and mail from any point or points behind any Member State of the European Union via any point or points in any Member State and via intermediate points to any point or points in the United States and beyond;

b. Foreign scheduled air transportation of persons

, property , and mail between any point or points i n the United States and any point or points in any member of the European Common Aviation Area;

c. Foreign scheduled cargo air transportation between any point or points in the United States and any other point or points; and

d. T ransportation authorized by a ny additional route rights made available to European Union carriers in

the future.

2

. euroAtlantic Airways Transportes Aereos, S.A. shall, before it commences any new service under subparagraph ( d ) of ordering paragraph 1 above, provide the Department i n Docket DOT

- OST

- 2008

- 0222 with evidence that it holds a homeland license for that new service, unless it has already provided such evidence to the Department;

4 Th is 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 . The exercise of the privileges granted above is subject to compliance by euroAtlantic Airwa ys Transportes Aereos, S.A. with the conditions listed in Appendix A;

4 . Our action granting the exemption authority described herein, subject to the provisions of the ordering paragraphs above, is effective immediately, for a period of two years from th e 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 herein 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 the referenced docket (DOT

- OST

- 20 08

- 0222 );

7

. With respect to the applicant’s request for a n amended foreign air carrier permit in this proceeding , w e direct all interested persons to show ca use why our tentative decision on the application of euroAtlantic Airways Transportes Aereos, S.A. for a foreign air carrier permit , set forth above, should not be made final;

8 . Any interested person objecting to the issuance of an order making final ou r 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 t his 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 o bjections 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, 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

11 . We will serve a copy of this order on euroAtlantic Airways Transportes Aereos, S.A. ; the Ambassador of Portugal in Washington, D.C. ; the Department of State ; and the Federal Aviation Adm inistration.

By:

PAUL L. GRETCH

Director

Office of International Aviation

(SEAL)

Appendix 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 operatio ns, 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 concern ing 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

s ervice (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) Confo rm 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 waive r 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 ter m "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 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 chart er 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 durin g 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.

EU carrier 01/2008Appendix B

Iss ued by

Order

_____ -

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C.



### -------------------------------------------------------- PERMIT TO FOREIGN AIR CARRIER (as amended)



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

### euroAtlantic Airways Transportes Aereos, S.A.

A Foreign Air Carrier of Portugal

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 from any point or points behind any Member State of the European Union, via any point or points in any Member State and via intermediate points to any point or points in the United States and beyond;

F oreign scheduled and charter air transportation of persons, property, and mail between any point or points in the United States and any point or points in any member of the European Common Aviation Area;

F oreign scheduled and charter cargo air transportation between any point or points in the United States and any other point or points;

O ther charters pursuant to the prior approval requirements set forth in 14 CFR Part 212 of the Department’s regul ations; and

T ransportation authorized by any additional route rights made available to European Union carriers in the future; provided , that the holder shall, before it commences any new service under such additional route rights, provide the Department w ith evidence that it holds a homeland license for that new service (unless it has already provided such evidence to the Department). Such evidence

shall be filed in Docket DOT

- OST

- 2008

- 0222.

This permit and the exercise of the privileges granted in it s hall 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 air2 transportation now in effec t, 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 dat e 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 amend ment, 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 its Member States (or, if the right is partially eliminated, then the authorit y 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 appl y 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 European Union and its Member States become parties.

The Depar tment of Transportation has executed this permit and affixed its seal on

_________.

By:

PAUL L. GRETCH

Director

Office of International Aviation



### (SEAL)Foreign Air Carrier Permit Conditions

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

(1) Not conduct any operations unless it holds a currently effective authorization from its homeland for such operations, and it has filed a copy of such authorization with the Department;

(2) Comply with all applicable require ments 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 departu re 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

det ermined 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) No t 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 internatio nal 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 unde r 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 o perations 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 defi ned 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 Sta tes 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 appl icable 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 conditi ons 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 1/2008