 

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, DC

Issued by the Department of Transportation on November 9, 2005

   NOTICE OF ACTION TAKEN -- DOCKET OST-2005-22637       

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_________________________________

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).

Application of   Brendan Airways, LLC, d/b/a USA 3000 (USA 3000) filed 
9/30/05 for:

XX  Exemption for two years under 49 U.S.C. 40109 to provide the
following service:

Scheduled foreign air transportation of persons, property, and mail
between (1) the terminal point Chicago, Illinois, and the terminal point
Puerto Vallarta, Mexico; (2) the terminal point Milwaukee, Wisconsin,
and the terminal point Cancun, Mexico; (3) the terminal point Cleveland,
Ohio, and the terminal point Cancun, Mexico; (4) the terminal point St.
Louis, Missouri, and the terminal point Cancun, Mexico; and (5) the
terminal point Detroit, Michigan, and the terminal point Cancun, Mexico.
 USA 3000 proposes to begin serving these markets on or about December
12, 2005.  USA 3000 states that the Milwaukee-Cancun services will be
offered initially on a seasonal basis, and all other services will be
offered on a year-round basis.

Applicant rep: Pierre Murphy (202) 776-3980   DOT Analyst: Linda Lundell
(202) 366-2336

           

D I S P O S I T I O N

XX  Granted Cleveland-Cancun portion of the application (subject to
conditions, see below)

XX  Deferred on the Chicago-Puerto Vallarta, Milwaukee-Cancun, St.
Louis-Cancun and Detroit-Cancun

        portions of the application (see remarks, below)

The above action granting Cleveland-Cancun exemption authority was
effective when taken:  

November 9, 2005, through November 9, 2007.

The above action deferring on the remainder of the application was
effective when taken:  November 9, 2005. 

Action taken by:   Paul L. Gretch, Director	

		    Office of International Aviation

XX  The authority granted is consistent with the aviation agreement
between the United States and Mexico.

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

   

XX Holder’s certificates of public convenience and necessity 

XX Standard exemption conditions (attached)  

Conditions:  The U.S.-Mexico exemption authority granted is subject to
the dormancy notice requirements set forth in condition 7 of Appendix A
of Order 88-10-2.  Consistent with our standard policy, the dormancy
notice period will begin December 12, 2005, the carriers’ startup date
for the proposed service. 

Remarks:   With respect to USA 3000’s request for authority to serve
the Chicago-Puerto Vallarta market, American Airlines, Inc. (American)
is already designated to serve the market, leaving one designation
opportunity available.  However, United Air Lines, Inc. (United), has
filed a competing application to USA 3000’s request here.  

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United also filed a consolidated answer to USA 3000’s application,
urging the Department to determine expeditiously the availability of
designations in this market to facilitate action on the pending
applications for Chicago-Puerto Vallarta authority.  (United suggests
that ATA, the other designated carrier in the market, holds authority
that may be dormant.)  We note that recent U.S.-Mexico consultations
have resulted in an ad referendum amendments to the aviation agreement,
which would expand the number of designations available for U.S.
carriers to provide scheduled services in certain city-pair markets,
including the Chicago-Puerto Vallarta market.  The agreed amendments are
not yet effective.  In these circumstances, we defer action on USA
3000’s request for authority to serve the Chicago-Puerto Vallarta
market until such time as the amendments are effective.  We will
consider subsequently the requests of USA 3000 and United for
Chicago-Puerto Vallarta authority. 

With respect to USA 3000’s requests for authority to serve the
Milwaukee-Cancun, St. Louis-Cancun, and Detroit-Cancun markets, two U.S.
carriers are already designated and serve each of these markets.  Thus,
no designation opportunities are currently available.  At present, USA
3000 is the only U.S. carrier that has filed an application for new
authority to serve these routes and no answers have been filed with
respect to those portions of its application.  As discussed, above, the
recent ad referendum amendment to the U.S.-Mexico aviation agreement
would expand the number of designations available for U.S. carriers to
provide scheduled services in certain city-pair markets, including the
Milwaukee-Cancun, St. Louis-Cancun, and Detroit-Cancun markets. 
However, the agreed amendments are not yet effective.  In these
circumstances, we defer action on USA 3000’s requests for authority to
serve the Milwaukee-Cancun, St. Louis-Cancun, and Detroit-Cancun markets
until such time as the amendments are effective.  

With respect to USA 3000’s request for authority to serve the
Cleveland-Cancun market, Continental Airlines, Inc. (Continental) filed
an answer stating, among other things, that it does not oppose USA
3000’s request for Cleveland-Cancun authority so long as
Continental’s own authority to serve the Cleveland-Cancun market
remains effective and Continental can continue to serve the route. 
Continental currently is the only U.S. carrier designated and serving
the Cleveland-Cancun route.  Thus, one designation opportunity is
available.   Under those circumstances, and in light of the fact that no
other applications were filed for Cleveland-Cancun authority and no
other responses were received with respect to USA 3000’s request for
Cleveland-Cancun authority, we have granted that portion of the
application.   

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On the basis of data officially noticeable under Rule 24(g) of the
Department's regulations, we found the applicant qualified to provide
the exemption services authorized.

Under authority assigned by the Department in its regulations, 14 CFR
Part 385, we found that (1) our action 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 or deferred, 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.

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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 

U.S. Carrier Exemption Conditions

In the conduct of the operations authorized, the U.S. carrier
applicant(s) shall:

(1)  Hold at all times effective operating authority from the government
of each country served;

(2)  Comply with applicable requirements concerning oversales contained
in 14 CFR 250 (for scheduled operations, if authorized);

(3)  Comply with the requirements for reporting data contained in 14 CFR
241;

(4)  Comply with requirements for minimum insurance coverage, and for
certifying that coverage to the Department, contained in 14 CFR 205;

(5)  Except as specifically exempted or otherwise provided for in a
Department Order, comply with the requirements of 14 CFR 203, concerning
waiver of Warsaw Convention liability limits and defenses;

(6)  Comply with all applicable requirements of the Federal Aviation
Administration and with all applicable U.S. Government requirements
concerning security, including, but not limited to, 49 CFR Part 1544. 
To assure compliance with all applicable U.S. Government requirements
concerning security, the holder shall, before commencing any new service
(including charter flights) to or from a foreign airport, 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; and

(7)  Comply with such other reasonable terms, conditions, and
limitations required by the public interest as may be prescribed by the
Department of Transportation, with all applicable orders and regulations
of other U.S. agencies and courts, and with all applicable laws of the
United States.

The authority granted shall be effective only during the period when the
holder is in compliance with the conditions imposed above.

										  

05/2004

   Currently, under the Air Transport Agreement between the United
States and Mexico, up to a total of two U.S. carriers may be designated
to provide direct-carrier (own-aircraft) services in a given city-pair
market.  

   See United application, Docket OST-2005-22767.  

   Northwest Airlines, Inc. (Northwest), and Ryan Airways, Inc., are
designated to serve the Milwaukee-Cancun market; American and Frontier
Airlines, Inc., are designated to serve the St. Louis-Cancun market; and
Northwest and Spirit Airlines, Inc., are designated to serve the
Detroit-Cancun market.

   On October 20, 2005, United filed a consolidated motion, including in
the present docket, to, among other things, urge the Department to act
expeditiously (1) to grant the requests of United, as well as those of
other U.S. carriers, for city-pair authorizations for which sufficient
designations will be available under the Memorandum of Consultations
between the United States and Mexico dated September 21, 2005, and (2)
to streamline the process for granting exemption authority where carrier
selection procedures will be required.  ExpressJet Airlines, Inc.
(ExpressJet) and Delta Air Lines, Inc. (Delta) each filed answers to
United’s motion.  Both respondents state that, while prompt
consideration of the competing U.S.-Mexico applications is important, it
is vital for the Department to have a sufficient record on which to base
its public interest selection decisions in these matters.  As previously
stated, the amendments agreed on September 21, 2005, are not yet
effective.  Because our action here grants authority consistent with the
current effective aviation agreement only, such action does not reach
the issues raised in United’s October 20 motion, nor the answers to
that motion.  Thus, we will not address those issues here.  

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