	

                   UNITED STATES OF AMERICA

            DEPARTMENT OF TRANSPORTATION

                    OFFICE OF THE SECRETARY

                             WASHINGTON, DC



Docket: OST-2002-12683					Served: August 16, 2002  

NOTICE

In the Matter of the 2002 U.S.-Brazil All-Cargo Service Proceeding

SUMMARY

By this Notice, we have decided to deny the request of Amerijet
International that Gemini Air Cargo and Evergreen Airlines International
submit in this docket copies of any applications and supporting
documents filed with the Air Transportation Stabilization Board seeking
Federal loan guarantees.

DISCUSSION AND SUMMARY OF PLEADINGS

By Order 2002-6-20, the Department instituted the 2002 U.S.-Brazil
All-Cargo Service Proceeding to select a carrier for an authorization to
be designated to serve the U.S.-Brazil all-cargo market and for
allocation of four U.S.-Brazil all-cargo frequencies under the
U.S.-Brazil aviation agreement.  The instituting order established a
procedural schedule for the submission of evidentiary material needed by
the Department to make its selection(s), as follows: Applications by
July 19, 2002; Direct Exhibits by August 2; Rebuttal Exhibits by August
16; and Briefs by August 30.  Gemini Air Cargo, Evergreen International
Airlines, and Amerijet International filed applications for the
available authorization and an allocation of frequencies.  

On August 6, 2002, Amerijet filed a motion requesting that the
Department issue an order directing Gemini and Evergreen to produce
copies of their respective applications reportedly filed with the Air
Transportation Stabilization Board seeking Federal loan guarantees
pursuant to the Air Transportation Safety and System Stabilization Act,
together with copies of all other related or supportive documents. 
Evergreen and Gemini filed answers opposing Amerijet’s request and
Amerijet filed a reply.  

In its motion, Amerijet states that neither Gemini nor Evergreen
submitted any financial statements as part of their direct exhibits in
the 2002 U.S.-Brazil All-Cargo Service Proceeding.  In support of its
motion, Amerijet asserts that the Department and the applicants must
have access to this information if the proceeding is to be conducted
fairly and on the basis of a complete record.  Amerijet maintains that
the requested information is relevant because it relates to the fitness
determination that the Department must make prior to issuing
certificates pursuant to the award of new route authority.  Moreover,
Amerijet argues that it would be hard to imagine how the Department
could issue certificates to either applicant if the proposed operations
are in any way dependent upon receipt of Federally subsidized loan
guarantees.  

Evergreen states that Amerijet’s motion demonstrates a complete lack
of understanding of the rationale for the establishment of the Air
Transportation Stabilization Board (ATSB).  The ATSB, according to
Evergreen, is not a bankruptcy court, and the underlying purpose of the
law that created the ATSB is to foster and develop airlines that have
every intention of continuing safe and commercially viable operations. 
Evergreen argues that the fact that Evergreen is seeking loan guarantees
does not bring into question the financial health of the company and,
consequently, there is no basis for providing any of the ATSB filings
that Amerjiet has requested for the record of this proceeding. 
Evergreen notes that since the filing of its ATSB application, the
Department has twice found the company fit to conduct its operations. 
In addition, Evergreen states that neither the Department nor the
applicants in recent route cases have indicated a need for the type of
financial review that Amerijet has requested here.  

Gemini states that the information it has provided to the ATSB is
confidential and relates solely to ATSB matters and ATSB requirements,
distinct from the Department’s regulatory jurisdiction.    Gemini
maintains that the Department regularly takes notice of Form 41
information filed by carriers to update fitness determinations in route
proceedings such as the 2002 U.S.-Brazil All-Cargo Service Proceeding at
issue here.  In addition, Gemini argues that Amerijet’s motion seems
to be designed to obstruct rather than facilitate the proceeding at
hand, especially in light of the fact that Amerijet filed its motion
long after petitions for reconsideration were due in this docket.    

In its reply, Amerijet notes that both Evergreen and Gemini concede that
there is no information in their applications or direct exhibits
regarding their financial fitness.  Amerijet also notes that neither
Evergreen nor Gemini disputes that the production of such information
would not constitute a significant burden.  Amerijet argues that its
request for information is timely because it could not have known what
financial information Evergreen and Gemini would submit to the
Department until the direct exhibits were filed in this case.  It
further argues that financial fitness and ability are always a relevant
consideration in a certification proceeding and that the information
presented to the ATSB is well suited for the purposes of determining
fitness and ability.  Amerijet maintains that such information could
also shed light on an applicant’s ability to inaugurate and maintain
service as well as on possible structural changes that the applicant
might be required to undertake.  Finally, Amerijet argues that
Evergreen’s suggestion that earlier Department fitness findings make
submission of ATSB filings unnecessary is without merit because
Evergreen fails to explain whether the fitness findings were based upon
financial information similar to that provided to the ATSB.  

DECISION

We have decided to deny Amerijet’s request.  The mere fact that
Evergreen and Gemini have filed applications before the ATSB in no way
in and of itself calls into question the financial fitness of either
carrier.  Nor was the material requested to be submitted under the Air
Transportation Safety and System Stabilization Act intended to address
the question of an air carrier’s fitness to obtain or hold economic
authority under Section 41101 of our Act.  In these circumstances, we
believe that the evidence we have already required to be submitted in
this proceeding, along with data officially noticeable under rule 24(g)
of the Department’s regulations, will be adequate for us to make any
fitness findings that may be necessary.  Accordingly, we will not
require that Gemini and Evergreen submit copies of any applications and
supporting documents filed with the Air Transportation Stabilization
Board seeking Federal loan guarantees.              

We will serve this notice on Gemini Air Cargo, Inc.; Evergreen
International Airlines, Inc.; and Amerijet International, Inc.  

By:

						Paul L. Gretch

						Director, Office of International Aviation

(Seal)

Dated:  August 16, 2002

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

http://dms.dot.gov//reports/reports_ aviation.asp

Amerijet states that it did not mean to suggest in its motion that
applicants before a bankruptcy court and the ATSB are in the same
position.  However, Amerijet contends that the two situations are not
mutually exclusive either, as demonstrated by the case of U.S. Airways. 
Amerijet further indicates that its own reorganization was a public
process, and that the materials produced by Amerijet are publicly
available.  In addition, Amerijet notes that its direct exhibits were
not silent with respect to its reorganization or other pertinent
financial information.    

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