Order 2014-11-4

 

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

Issued by the Department of Transportation

 on the 7th day of November, 2014

Served: November 7, 2014

Application of

FLIGHTPATH CHARTER AIRWAYS INC. Docket DOT-OST-2014-0172

 

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 a 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 

 1 The conditions are attached at Appendix A.
2

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).

Our action in this Order serves to implement these streamlined regulatory procedures for the 

applications involved in this proceeding.

Application

By application filed September 26, 2014, Flightpath Charter Airways Inc. (Flightpath), a foreign

air carrier of Canada, requests an exemption under 49 U.S.C. §40109 and a foreign air carrier 

permit under 49 U.S.C. §41301 to engage in, using small aircraft: 1) charter foreign air 

transportation of persons, property and mail between any point or points in Canada 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 Canada for the purpose of carrying local traffic between Canada and the 

United States; and 2) other charters in accordance with 14 CFR 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.

No answers were filed to the 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 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. We also find that the applicant has demonstrated, 

based on the record, that it is financially and operationally qualified to perform the services 

authorized.

2 The record indicates that 60% of the Flightpath’s shares are held by Canadian 

citizens. Of the remaining 40% of the applicant’s shares, 20% are held by a citizen of Germany 

and 20% by a citizen of the United Kingdom (both of whom are Canadian permanent residents), 

who also serve as the applicant’s President and Secretary-Treasurer, respectively. The record 

further indicates that the applicant’s CEO and the remainder of its officers and key management 

personnel are Canadian citizens. To the extent a question may exist as to 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. 

 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.
3

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

the United States and Canada. We also note that the applicant is properly licensed by its 

homeland to perform the proposed services. In addition, on October 30, 2014, 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).

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 permit authority becomes effective, whichever occurs 

earlier, is warranted.

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, for operations with small aircraft;

4

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. 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;5

 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. As noted above, no answers to the 

application were filed.

4 The applicant specifically stated that it was applying to provide its services using small aircraft. 5 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.
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 Flightpath Charter Airways Inc. for an exemption under 49 U.S.C. 

§40109 to engage in, using small aircraft: 1) charter foreign air transportation of persons, 

property and mail between any point or points in Canada 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 

Canada for the purpose of carrying local traffic between Canada and the United States; and

2) other charters in accordance with 14 CFR Part 212 of the Department’s regulations.

2. In the conduct of these operations Flightpath Charter Airways Inc. may only use aircraft 

capable of carrying no more than 60 passengers and having a maximum payload capacity of no 

more than 18,000 pounds;

3. The exercise of the privileges granted above is subject to compliance by Flightpath Charter 

Airways Inc. with the conditions listed in Appendix A;

4. We grant the request of Flightpath Charter Airways Inc. for confidential treatment of its traffic 

and financial forecasts, consistent with the provisions of 14 CFR § 302.12;

5. 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;

6. We may amend, modify, or revoke the exemption authority set forth in ordering paragraph 1 

at our discretion at any time and without hearing;
5

7. To the extent not acted upon above, we dismiss all requests for exemption authority in Docket 

DOT-OST-2014-0172;

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 Canada 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.

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
Foreign 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 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
Appendix B

Issued by

Order 2014-

 UNITED STATES OF AMERICA 

 DEPARTMENT OF TRANSPORTATION 

 OFFICE OF THE SECRETARY

 WASHINGTON, D.C.

------------------------------------------------------------------------------

PERMIT TO FOREIGN AIR CARRIER

-------------------------------------------------------------------------------

FLIGHTPATH CHARTER AIRWAYS INC.

A Foreign Air Carrier of Canada 

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:

Charter foreign air transportation of passengers, property and mail between any point 

or points in Canada 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 any third country or countries, 

provided that, except with respect to cargo charters, such services constitute part of a 

continuous operation, with or without a change of aircraft, that includes service to 

Canada for the purpose of carrying local traffic between Canada 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.

In the conduct of these operations, the holder may only use aircraft capable of carrying no more 

than 60 passengers and having a maximum payload capacity of no more than 18,000 pounds.

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 Canada (or, if the right is 

partially eliminated, then the authority of this permit shall terminate in like part); (3) upon the
8

effective date of any permit granted by the Department to any other carrier designated by the 

Government of Canada in lieu of the holder; or (4) upon the termination or expiration of the 

applicable air services agreement between the United States and Canada. 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 Canada become parties.

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

 , 2013.

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 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