 

			  UNITED STATES OF AMERICA

		        DEPARTMENT OF TRANSPORTATION

			  OFFICE OF THE SECRETARY

			          WASHINGTON, D.C.

Issued by the Department of Transportation on December 15, 2005

NOTICE OF ACTION TAKEN -- DOCKET OST-2005-22726

________________________________________________________________________
________________________________________________________

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:  MSN Airlines (Guyana) Inc.						Date Filed: October 13, 2005


Relief requested:  Exemption from 49 U.S.C. § 41301 to engage in (1)
scheduled foreign air transportation of persons, property and mail
between the co-terminal points Miami, Florida and New York, New York, on
the one hand; via Port-of-Spain, Trinidad & Tobago; and Georgetown,
Guyana, on the other hand; (2) charter foreign air transportation
between a point or points in the United States and a point or points in
Guyana; and (3) other charters in accordance with Part 212 of the
Department’s rules.  The applicant would conduct these services only
by wet leasing from a duly authorized and properly supervised U.S. or
foreign air carrier.

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

Applicant representative: Moffett B. Roller  (202) 331-3300 

                                                                    

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

Responsive pleadings:  North American Airlines, Inc. (North American), a
U.S. certificated carrier and Laparkan Airways Inc. (Laparkan), a U.S.
freight forwarder filed answers to MSN’s application.  North American
states that it opposes grant of an exemption to MSN pending
clarification of the status of MSN’s Guyanese license, in view of the
fact that that correspondence dated September 29, 2005 from the Guyana
Civil Aviation Authority (GCAA) appears to revoke the license of MSN. 
Laparkan states that the license issued to MSN by the GCAA was revoked
shortly after its issuance; that the Civil Aviation Authority of
Trinidad and Tobago has not approved any application on behalf of MSN to
serve that country; that MSN does not appear to have a discernable
business structure in Guyana; and that, in light of the services
currently being offered in the markets MSN proposes to serve (markets
Laparkan describes as “overserved”) it questions the economic
viability of the proposed services.  MSN filed a consolidated reply
attaching correspondence from the Director General, GCAA, to MSN, dated
October 31, 2005, stating that the Guyanese licenses issued to MSN on
September 26, 2005, “have been continuously valid and are in good
standing.”  In its reply MSN states that it would not operate via
Trinidad and Tobago or any other intermediate point without obtaining
operating authority from the relevant aviation authorities; that MSN is
properly constituted and in good standing in Guyana; and that, while
economic viability is not a standard that DOT applies in considering
applications such as this, MSN has evaluated the passenger and cargo
markets between the United States and Guyana and is confident of the
economic viability of the competitive services it plans to operate.

DISPOSITION

Action:  Approved							Action date:  December 15, 2005

Effective dates of exemption authority granted:  December 15, 2005 –
December 15, 2006

Basis for approval (bilateral agreement/reciprocity): Reciprocity with
Guyana

 

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   (          )

Special conditions/Partial grant/Denial basis/Remarks:  Based on the
record in this case, we found that MSN is financially and operationally
qualified to perform the services authorized above.  In addition, we
found that MSN is substantially owned and effectively controlled by
citizens of Guyana.  

MSN may not conduct U.S. operations with its own aircraft and crews
without further order of the Department. 

With respect to the concerns raised by the respondents, we note that the
record now indicates that MSN holds the requisite license from its
homeland to conduct the services it proposes.  In addition, we do not
find that the concern raised by Laparkan over the potential economic
viability of MSN’s proposed services is relevant to our decision to
grant this authority.  While Laparkan may argue that the markets
involved are “overserved,” we believe, as a matter of policy, that
questions of appropriate service levels are best left to the decisions
of carrier management and to the competitive marketplace.  Under these
circumstances, we find that the objectors have raised no arguments that
would cause us to find that approval of MSN’s request would not be
consistent with the public interest.

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.

 MSN Airlines is currently a Category 2 country under the FAA’s
International Aviation Safety Assessment Program (IASA).

05/2004

