Order 2013-11-18

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C. 

Issued by the Department of Transportation

on the 22nd day of November, 2013

 

Served: November 22, 2013

ORDER ON REVIEW

Summary

By this Order, we grant the petition of Fly Jamaica Airways Limited (Fly Jamaica) for 

review of staff action with respect to the denial of its request for an exemption under 49 

U.S.C. §40109 for extrabilateral authority to conduct seventh-freedom combination 

turnaround service between New York, New York (JFK), and Georgetown, Guyana. On 

review, we affirm the action taken by the Director, Office of International Aviation.

Background

By application filed July 16, 2013, Fly Jamaica requested an exemption under 49 U.S.C. 

§ 40109 for a period of one year to engage in scheduled foreign air transportation of 

persons, property, and mail between New York (JFK), and Georgetown, Guyana. Fly 

Jamaica stated that it is a flag carrier of Jamaica and holds a foreign air carrier permit 

issued by Order 2013-2-25, authorizing it to engage in scheduled foreign air 

transportation of persons and property from a point or points behind Jamaica via Jamaica 

and intermediate points, to a point or points in the United States and beyond. Fly Jamaica 

further stated that it currently provides scheduled combination services between New 

York (JFK) and Kingston, Jamaica, using B-757 aircraft. 

Fly Jamaica stated that comity and reciprocity between Jamaica and the United States 

supports approval of its New York (JFK)-Georgetown service request, even though such 

service is not provided for under the U.S.-Jamaica Open Skies agreement. Fly Jamaica 

asserted that there is sufficient demand for New York-Guyana services and that no U.S. 

carrier currently serves the New York-Georgetown market. Fly Jamaica also asserted

In the Matter of

Application of 

FLY JAMAICA AIRWAYS LIMITED

for an exemption under 49 U.S.C. §40109

 Docket DOT-OST-2013-0136
2

that it has been designated as a flag carrier of Guyana, and submitted as part of its 

application a letter from the Government of Guyana confirming its claim.

The Air Line Pilots Association (ALPA) and Airlines for America (A4A) each filed an

answer objecting to the application of Fly Jamaica. ALPA and A4A’s answers also 

objected to an application of Caribbean Airlines Limited (CAL), a foreign air carrier of 

Trinidad and Tobago, for similar authority to conduct seventh-freedom combination 

turnaround service between New York, New York (JFK), and Georgetown, Guyana.1 

On September 30, 2013, the Director, Office of International Aviation, acting for the 

Department under assigned authority, issued Order 2013-9-22, denying the requests of 

Fly Jamaica and CAL for extrabilateral exemption authority to serve between 

Georgetown and New York. In reaching that decision, the Department noted that such 

requests for seventh-freedom turnaround service are extraordinary and have only been 

granted when the circumstances presented show compelling public interest 

considerations. We further noted the criteria established by the Department to determine 

whether such authority would be in the public interest. Specifically in such cases, we 

must conclude that (1) a demonstrable need for the service exists, (2) there would be a 

negligible impact on U.S. flag carriers, and (3) the proposed operation is limited in scope.

Against that background, the Department determined that it could not make the necessary 

public interest findings to grant the applications of Fly Jamaica and CAL. We noted that

the Open-Skies Agreements that we have in place both with Jamaica and with Trinidad 

and Tobago provide rights for licensed carriers of both countries to conduct fifth-freedom 

services with full traffic rights on all segments, and that such rights are currently being 

exercised by CAL on a nonstop and one-stop basis, and by Fly Jamaica on a one-stop 

basis.2

 In light of those existing Georgetown-New York services and the lack of a 

showing by the applicants on the record that there is a truly demonstrable need for 

additional Georgetown-New York services, we were unable to find that the CAL and Fly 

Jamaica seventh-freedom turnaround proposals satisfied our public interest test for

granting the type of extraordinary authority at issue.3

 

Petition for Review of Staff Action

Fly Jamaica filed a Petition for Review of Staff Action on October 4, 2013. Fly Jamaica

argues that there is a clear need for service in the market, as demonstrated by the facts

that the United States and Guyana entered into an Open-Skies agreement, and that a 

number of U.S. carriers have served the nonstop Georgetown-New York market in the 

 1 See Docket DOT-OST-2013-0140. 2 In the order, we noted that CAL currently provides New York-Georgetown service (with Georgetown as 

an authorized intermediate/behind point) on two flights, with the first flight operating four times weekly 

over a Port of Spain-Georgetown-New York routing, and the second operating daily over a GeorgetownPort of Spain-New York routing. We further noted that Fly Jamaica serves the Georgetown-New York 

market on a one-stop basis via Kingston, Jamaica. 3 Because we did not find that Fly Jamaica and CAL established that a demonstrable need for the services 

exists, we did not reach the question of whether the CAL and Fly Jamaica requests satisfied the additional 

criteria referenced above.
3

past. Fly Jamaica further argues that the service it provides between Georgetown and 

New York, on a one-stop basis over Kingston, is not an equivalent substitute for non-stop 

service. Finally, Fly Jamaica contends the Category 2 rating assigned to Guyana under 

the Federal Aviation Administration’s International Aviation Safety Assessment (IASA) 

Program prohibits carriers of Guyana from conducting U.S. services, which should be 

taken into consideration.

Answers of A4A and Delta Air Lines, Inc. (Delta)

A4A and Delta filed answers in opposition to Fly Jamaica’s petition. A4A states that Fly 

Jamaica has not provided any new information on the record that would justify a reversal 

of the Department’s decision. It contends that a service deficiency does not exist in the 

market, calling attention to the existing one-stop and nonstop services being provided 

between Georgetown and New York (JFK). Delta also asserts that the Georgetown-New 

York market is in fact served with four nonstop flights per week in each direction, and 

that Fly Jamaica is simply seeking the extrabilateral relief at issue here for its own 

commercial benefit. A4A and Delta both contend that the Department should stand by its 

decision to deny Fly Jamaica’s seventh-freedom turnaround request.

Decision

We have decided to grant Fly Jamaica’s petition for review, and, on review, to affirm the 

action of the staff. After reviewing the record before us, we fully endorse the Director’s 

statement of the applicable standards and his decisional analysis and public interest 

determination.

In the order denying the applications of Fly Jamaica and CAL, the Director said that 

“[w]ith respect specifically to requests for extrabilateral seventh-freedom turnaround 

service, [the Department has] historically viewed such requests as extraordinary and [has]

granted such authority only when the circumstances presented on the record in individual 

cases show compelling public interest considerations.” Order 2013-9-22 at 3. He

expressly defined the criteria the Department weighs to determine whether the public 

interest warrants approval of extrabilateral seventh-freedom turnaround services. 

Among those criteria is a demonstrable need for such service, and the Director found that 

neither of the applicants provided compelling evidence to show that such a need exists in 

the Georgetown-New York market. As noted in that order, CAL and Fly Jamaica 

collectively provide various nonstop and one-stop Georgetown-New York services. In 

light of those existing services and absent any evidence on the record indicating a

compelling need for additional services, he was unable to find that the Fly Jamaica and 

CAL proposals met our public interest criteria necessary to support grant of the 

extraordinary authority requested. 

We do not find now that Fly Jamaica in its petition has demonstrated a compelling need 

for additional Georgetown-New York services. The record shows that Fly Jamaica and 

CAL continue to provide various nonstop and one-stop services in the Georgetown-New 
4

York market. Furthermore, notwithstanding the lack of services provided by U.S. 

carriers, Fly Jamaica has not provided any new evidence that demonstrates unmet 

demand in the market. 

In that regard, we do not find persuasive Fly Jamaica’s arguments that the existence of

the U.S.-Guyana Open-Skies Agreement, or the prior service pattern of U.S. carriers in 

the Georgetown-New York market, represent a demonstrable need for service. The mere 

existence of an Open-Skies Agreement does not demonstrate unmet demand; indeed, we 

have often reminded our bilateral partners that Open Skies in no way guarantees service, 

and we have many Open-Skies partners in whose markets there is no direct service to the 

United States. In addition, the status of Guyana as a Category 2 country under the FAA’s 

IASA program is irrelevant, in the absence of any showing of a need for additional 

service because of that status.

4

 

In view of the above, we do not find that it is in the public interest to grant the 

extraordinary seventh freedom turnaround authority sought by Fly Jamaica.

ACCORDINGLY,

1. We grant the petition of Fly Jamaica Airways Limited filed October 4, 2013, for 

review of staff action in denying the application of Fly Jamaica Airways Limited, in 

Docket DOT-OST-2013-0136, as reflected in Order 2013-9-22;

2. We affirm, on review, the action of the Director, Office of International Aviation, 

denying the application of Fly Jamaica Airways Limited, described above; and

3. We will serve this order on Fly Jamaica Airways Limited; Airlines for America; Delta 

Air Lines, Inc.; the Embassy of Jamaica in Washington, D.C., the Department of State; 

and the Federal Aviation Administration.

By:

SUSAN L. KURLAND

Assistant Secretary for Aviation

and International Affairs

(SEAL)

An electronic version of this document is available on the World Wide Web at:

http://www.regulations.gov

 4 We note that notwithstanding Guyana’s Category 2 status, a properly licensed carrier of Guyana could 

still hold out service to the United States, provided that services were operated by a properly licensed U.S. 

or foreign carrier under a wet-lease or code-share arrangement. Services of this nature routinely exist in 

cases involving foreign air carriers from IASA Category 2 countries.