 

			  UNITED STATES OF AMERICA

		        DEPARTMENT OF TRANSPORTATION

			  OFFICE OF THE SECRETARY

			          WASHINGTON, D.C.

Issued by the Department of Transportation on July 22, 2005

NOTICE OF ACTION TAKEN -- DOCKET OST-2004-19971

________________________________________________________________________
________________________________________________________

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:  Transmile Air Services SDN BHD	.				Date Filed:  December
23, 2004

Relief requested:  Exemption from 49 U.S.C. § 41301 to engage in  (1)
scheduled all-cargo service between the United States and any point or
points; and (2) charter all-cargo service between Malaysia and the
United States and any point or points in third countries.

If renewal, date and citation of last action:  New authority

Applicant representatives:  Aaron A. Goerlich & Erin M. Tallardy  (202)
776-3970 

                                                                    

DOT Analyst:  Shelita A. Smith  (202) 366-1226

Responsive pleadings:  None filed

DISPOSITION

Action:  Approved							Action date:  July 22, 2005

Effective dates of exemption authority granted:  July 22, 2005 - July
22, 2007

Basis for approval (bilateral agreement/reciprocity):  U.S.-Malaysia Air
Transport Agreement

 

Except to the extent exempted/waived, this authority is subject to the
terms, conditions, and limitations indicated:

  X    Standard exemption conditions (attached)         

Special conditions/Partial grant/Denial basis/Remarks:  Based on the
record in this case, we found that Transmile is operationally and
financially qualified to perform the services authorized above, and that
it is properly licensed by the Government of Malaysia to perform the
proposed services.  With respect to the ownership and control of the
carrier, the applicant stated that it is owned by Transmile Group Berhad
(70%) and POS Malaysia Berhad (30%).  While both are Malaysian
companies, Transmile noted that the ownership of these companies is
diffuse, with the ultimate ownership of the applicant being 68.23%
Malaysian and 31.77% non-Malaysian.  However, all of its key management
personnel are citizens of Malaysia.  In light of this situation, to the
extent a question may exist as to whether the applicant is substantially
owned and effectively controlled by citizens of Malaysia, we found that
waiver of our ownership and control standard is warranted in this
instance, to the extent necessary, as there is nothing in the ownership
of the applicant that would be inimical to U.S. aviation policy or
interests.  Finally, by memorandum dated July 5, 2005, the FAA advised
us that it knew of no reason why we should act unfavorably on
Transmile’s application.

We grant Transmile a waiver under CFR § 212.12 from the requirement of
14 CFR § 212.9 (b)(1) that the carrier obtain prior Department approval
before operating Fifth Freedom cargo charter flights encompassed under
the Agreement.

Action taken by:  Paul L. Gretch, Director	

		   Office of International Aviation	

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________________________________________________________

Under authority assigned by the Department in its regulations, 14 CFR
Part 385, we found that (1) the applicant is qualified to perform the
proposed operations; (2) our action was consistent with Department
policy; (3) grant of the authority was consistent with the public
interest; and (4) 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 seven (7) 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:

  HYPERLINK "http://dms.dot.gov//reports/reports_aviation.asp" 
http://dms.dot.gov//reports/reports_aviation.asp 

Foreign Carrier Exemption Conditions

In the conduct of the operations authorized, the foreign carrier
applicant(s) 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, including, but not limited to, 14 CFR Parts 129, 91, and
36, and with all applicable U.S. Government requirements concerning
security, including, but not limited to, 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 Principal Security Inspector (IPSI) to advise
the IPSI 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.

05/2004

