Order 20 1 3

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UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF THE SECRETARY WASHINGTON, D.C.
Issued by the Department of Transportation on the 22 nd day of November

, 20 13

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 (JF K), and Georgetown, Guyana. O n review , we affirm the action taken by the Director, Office of International Aviation.

Background

By application filed July 16, 2013, Fly Jamaica request ed 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 state d that it is a flag carrier of Jamaica and holds a foreign air carrier permit issued by Order 2013

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- 25, authori zing 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 state d 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
assert ed 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 assert ed In the Matter of

Application of

FLY JAMAICA AIRWAYS LIMITED

for an exemption under 49 U.S.C. §4 0109 Docket DOT

- OST

- 20 13

- 01362 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 c ombination 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

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- 22, denying the reque sts 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
gran ted 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 conc lude 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 neces sary public interes t 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 th o se 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 we re unable to find that the CAL and Fly Jamaica seventh

- freedom turn around proposals satisf ied 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 tha t the re is a clear need for service in the market

, as demonstrated by the fact s that the United States and Guyana entered into an Open

- Skies agreement, and that a number of U.S. carriers have served the nonstop Georgetow n

- New York market in the

1 See Docket DOT

- OST

- 2013

- 0140.
2 In the order, we noted that CAL currently provid es 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 Georgetown

Port 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 Jamai ca 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 Feder al Aviation Administration’s International Aviation Safety Assessment (IASA) Program prohibits carrier s of Guyana from conduct ing U.S. services , which should be taken into consideration.

Answer s 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 exi st in the market, c alling attention to the existing one

- stop and non stop 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 dir ection , 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 analysi s 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 vie wed 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

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- 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.

A mong those criteria is a demonst rable need for such service , and the Director found that

n either of the applicants provi ded compelling evidence to show that such a need exist s in the Georgetown

- New York market

. As noted in th at order

, CAL and Fly Jamaica collectively provide various nonstop and one

- stop Georgetown

- New York service s

. 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

.

W e 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

- New4 Yo rk market. Furthermore, notwithstanding the lack of services provided by U.S. carriers, Fly Jamaica has not provide d any new evidence that demonstrate s unmet demand in the market.

In that regard, w e 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. T he mere existence of an Open

- Skies Agreement does not demonstrate unme t 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 Cat egory 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

ex traordinary 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

- O ST

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- 0136 , as reflected in Order 2013

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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 Jamaic a 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

. Se rvices of this nature routinely exist in cases involving f oreign air carriers from IASA Category 2 countries.