Order 201 3

- 5

- 17

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C

.
Issued by the Department of Transportation

on th e 30 th day of May

, 20 1 3

Served : May 30 , 201 3

Application of

AE RONEXUS CORPORATE (PTY) LTD Docket DOT

- OST

- 201 3

- 0 073

for a n exemption under 49 U.S.C. §40109 and a f oreign 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 OST

- 2005

- 22228, announcing several steps designed to streamline our regulatory procedures for licensing U.S. and foreign air carriers. Among o ther 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 ord er (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 re gimes, indefinite for agreement regimes).

1 The conditions are attached at Appendix A.2

Our action in this Order serves to implement these streamlined regulatory procedures for the application involved in this proceeding.

Application

By application filed April 11

, 201 3 (as supplemented May 9, 2013)

, Aeronexus Corporate (PTY) Ltd (Aeronexus)

, a foreign air carrier of South Africa

, r equests an exemption under 49 U.S.C. §40109 and a foreign air carrier permit under 49 U.S.C. §41301, to engage in the following

services: (1) charter f oreign air transport ation of persons, property and mail between any point or points in South Africa and any point or points in the United States and ; 2) o ther charters pursuant to prior approval requirements set forth in 14 CFR Part 212 of the Department’s regulations.

The a pplicant requested that its foreign air carrier permit be granted for an indefinite duration.

T he applicant provided 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 Notice referenced above, to grant the applicant’s request for e xemption authority, subject to conditions

. We have also tentatively decided to grant

, subject to show

- cause procedures, its request for a foreign air carrier permit, also subject to conditions and as further discussed below

.

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 authorized ; 2 and that it is substantially owned and effectively controlled by citizens of its c laimed homeland. 3

While the U.S.

- South Africa Air Transport Agreement does not encompass the operation of charter services, we find that reciprocity and the overall state of our aviation relationship with South Africa warrant grant o f the requested exemp tion authority, for a one

- year term, or until the requested permit authority becomes effective, whichever occurs earlier. 4

We also note that the applicant is properly licensed by its homeland to perform the proposed services. In addition, on May 23, 2013

, t he Federal Aviation Administration advised us that it knew of no reason why we should act unfavorably on the applicant’s requests. We have verified

2 The ap plicant has requested confidential treatment of its financial and traffic forecast submissions, under the provisions of 14 CFR§30 2 .12. Good cause having been shown, we will grant this request.

3 Aeronexus states that 50% of its shares are held by Sven Pet erson, and the other 50% by Gavin Harrison, both of

whom are citizens of South Africa. The applicant’s board members, officers, and key management personnel are all

citizens of South Africa.

4 While the applicant requested that its foreign air carrier p ermit be granted for an indefinite duration, the five

- year duration of the permit authority we are granting is consistent with our usual policy of granting permit authority in the circumstances presented. We, therefore, are tentatively dismissing the perm it request to the extent that it seeks authority

for a longer period.3

the applicant’s compliance with 14 CFR Parts 203 (Warsaw liability waiver), and 205 (insurance requireme nts).

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. 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 the 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 f oreign air carrier permit in the form

attached ;

2. The applicant is fit, willing and able properly to perform the foreign air tran sportation 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 by citizens of its claimed

home land;

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 regulati ons; 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, 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 dis approve 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 wi th Department policy; and (2) with

5 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. As noted above, no answers to the application were filed.

6 This finding is based on the fact that the grant of this permi t 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 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 Aeronexus Corporate (PTY) Ltd for an exemption under 49 U.S.C. §40109 to engage in (1) charter foreign air transportati on of persons, property and mail between any point or points in South Africa and any point or points in the United States and; 2) other charters pursuant to prior approval requirements set forth in 14 CFR Part 212 of the Department’s regulations ;

2

. The exercise of the privileges granted above is subject to compliance by Aeronexus Corporate (PTY) Ltd w ith the conditions listed in Appendix A;

3 . We grant the request of Aeronexus Corporate (PTY) Ltd for confidential treatment of its financial submissions, consistent with the provisions of 14 CFR Part 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 the attached permit becomes effective, wh ichever 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 3

- 0 073 );

7 . With respect to the applicant’s request for a foreign air carrier permit in this proceeding, we direct all interested persons to show cause why our tentative decision on that application, set forth above, should not be mad e 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, 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, sta tistical 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 wil l 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 of5

Title 49 of the U.S. Code) make final our tentative findings and conclusions set forth in this order; and

1 1

. We will serve a copy of this order on the applicant, the Embassy of S outh Africa 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 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

Direct or 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 operati ons authorized, the foreign carrier applicant shall:

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

(2) Comply with all applicable requirements of the Federal Aviation Administration, the Transportation Security Administration, and with all applicable U.S. Government requirements concerning security, including, but not limited to, 14 CFR Parts 129, 91, and 36 and 49 CFR Par t 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 las t 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

Admi nistration 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, fil e 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 offi ce);

(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 interna tional 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 operatio ns 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 Dep artment'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 regulat ions 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 SECRETARY WASHINGTON, D.C.

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



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



### AERONEXUS CORPORATE (PTY) LTD

A F oreign Air Carrier of South Africa

is authorized, subject to the following provisions, the pro visions of Title 49 of the U.S. Code, and the orders, rules, and regulations of the Department of Transportation, to engage in :

C harter foreign air transportation of persons, property and mail between any point or points in South Africa and any point or p oints in 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 exer cise 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 interna tional 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 , and shall te rminate five years thereafter; provided, that if during said period the operation of the foreign air transportation authorized becomes the subject of any treaty, convention or agreement to which the United States and the applicant’s homeland are or shall

b ecome parties, then this permit is continued in effect during the period provided in such treaty, convention, or agreement.The Department of Transportation has executed this permit and affixed its seal on

By:

PAUL L. GRETCH

Director

Office of Inter national 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

o perations, 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 an y 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 Ins pector) 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

Sta ndards 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, concernin g 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 agai nst 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 destinati on, 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 aut horized 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 aut horized, 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 th e 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 hold er 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