Annex B
NOTICE OF ACTION TAKEN—DOCKET OST-98-4292
This serves as notice to the public of the action
described below, taken by the Department official indicated (no
additional confirming order will be issued in this matter).
Applicant: Aero Continente, SA Date Filed: 7
August 1998, as clarified 12 May 1999
Relief requested: Exemption from 49 USC 41301
to conduct scheduled foreign air transportation of persons, property
and mail between Lima, Peru, and Miami, FL; and charters pursuant
to 14 CFR 212 of the Department's regulations.
On 12 May 1999, Aero Continente filed a pleading
to clarify that the requested relief includes authority that would
be limited to wet-lease operations conducted by a duly authorised
and properly supervised US or foreign air carrier, pending action
on its application for a foreign air carrier permit (Docket OST-98-4291)
and/or the full relief requested in this proceeding.[25]
If renewal, date and citation of last action:
New authority
Applicant representative: Lawrence Wasko 202-862-4370
Responsive pleadings: Fine Air Services, Inc.,
filed pleadings in opposition, which it subsequently withdrew
on 22 July 1999.
DISPOSITION
Action: Approved in part; Remainder deferred.
Action date: October 6, 1999
Effective dates of authority granted: 6 October
1999—6 October 2001
Remarks: We are granting Aero Continente authority
to conduct, using wet-leased aircraft only, scheduled service
between Lima, Peru, and Miami, Florida; and charters pursuant
to 14 CFR 2 12. We are deferring action on that portion of Aero
Continente's application requesting authority to conduct these
operations using its own aircraft and crew.
Grant of this authority is consistent with the
provisions of the US-Peru Air Transport Agreement. We found, based
on the record[26]
that the carrier is substantially owned and effectively controlled
by citizens of Peru, properly designated and licensed, and operationally
and financially qualified to undertake the proposed operations.[27]
We note that certain allegations were introduced
into the record by Fine concerning Aero Continente. Notwithstanding
Fine's withdrawal of its opposition, we nevertheless believe that
the public interest requires that we address these allegations.
Specifically, although Fine did not claim to have any knowledge
of and took no position on the accuracy of certain newspaper reports
which it placed in the record, it requested that the Department
defer action on the application and investigate reports of involvement
of the prior owner of Aero Continente and brother of its president,
and of Aero Continente itself, in drug trafficking.
The Department has decided to approve Aero Continente's
application after receiving a considerable amount of evidence
on the subject. That evidence includes, inter alia, an
affidavit from Aero Continente's counsel in Peru which states
that there has been no Peruvian court decision that involves Aero
Continente, and that a Peruvian court-ordered audit of Aero Continente
did not reveal any involvement with illegal drug trafficking.
The Department views the war against the drug
trade in transportation as critical to the Administration's fight
to disrupt the means by which drugs are brought to the United
States. It is thus only after the careful consideration of the
particular circumstances and record evidence in this case that
we decided to approve this application.
Except to the extent exempted/waived, this authority
is subject to the terms, conditions, and limitations indicated:
X Standard exemption conditions (attached) Foreign air carrier
permit conditions (Order) X Special conditions: In the conduct
of the services authorised, Aero Continente shall use only aircraft
wet-leased from a duly authorised and properly supervised US or
foreign air carrier that receives requisite authority under the
provisions of 14 CFR 212 of the Department's regulations.
ACTION TAKEN
BY: DIRECTOR,
OFFICE OF
INTERNATIONAL AVIATION
Under authority assigned by the Department in
its regulations, 14 CFR Part 385, we found that (1) immediate
action was required and was consistent with Department policy;
(2) grant of the authority was consistent with the public interest;
and (3) grant of the authority would not constitute a major regulatory
action under the Energy Policy and Conservation Act of 1975. To
the extent not granted/deferred/dismissed, we denied all requests
in the referenced Docket. We may amend, modify, or revoke the
authority granted in this Notice at any time without hearing at
our discretion.
Persons entitled to petition the Department
for review of the action set forth in this Notice under the Department's
regulations, 14 CFR $385.30, may file their petitions within ten
(10) days after the date of issuance of this Notice. This action
was effective when taken, and the filing of a petition for review
will not alter such effectiveness.
An electronic version of this document is available
on the World Wide Web at: http://dms.dot.gov/reports/reports_aviation.asp
FOREIGN AIR CARRIER CONDITIONS OF AUTHORITY
In the conduct of the operations authorised, the
holder shall:
(1) Not conduct any operations unless it
holds a currently effective authorisation from its homeland for
such operations, and it has filed a copy of such authorisation
with the Department;
(2) Comply with all applicable requirements
of the Federal Aviation Administration, including, but not limited
to, 14 CFR Parts 129, 91, and 36;
(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 defences;
(7) Agree that operations under this authority
constitute a waiver of sovereign immunity, for the purposes of
28 USC 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:
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 authorised 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 2 17, concerning the reporting of scheduled, non-scheduled,
and charter data;
(10) If charter operations are authorised,
comply (except as otherwise provided in the applicable bilateral
agreement) with the Department's rules governing charters (including
14 CFR Parts 2 12 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 US 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 US Code (formerly the Federal Aviation Act of 1958, as
amended).
25 On 9 July 1999, Aero Continente filed a further
clarification of relief requested, which it subsequently withdrew
on 24 September 1999. Back
26
Aero Continente incorporated by reference into this proceeding
its application for a foreign air carrier permit contemporaneously
filed in Docket OST-98-4291. Back
27
We have been advised by the Federal Aviation Administration that
it knows of no reason why we should act unfavourably on Aero Continente's
application so long as its operations are specifically limited
to the use of wet-lease carriers from the US or a country that
has been found by the FAA to meet ICAO standards regarding safety
oversight. Back
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