UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

Issued by the Department of Transportation on April 13, 2006

NOTICE OF ACTION TAKEN -- DOCKET OST-2006-23542

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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).

Applicant:  GLOBESPAN AIRWAYS LIMITED d/b/a FLYGLOBESPAN (Flyglobespan)	
	

Date Filed:  January 4, 2006

Relief requested:  Exemption from 49 USC § 40109 to engage in: 1)
scheduled foreign air transportation of persons, property, and mail
between any point or points in the United States and any point or points
in the United Kingdom, excluding London’s Heathrow and Gatwick
airports; and (2) charter foreign air transportation of persons,
property, and mail in accordance with 14 CFR Part 212 of the
Department’s economic regulations.  The applicant requests that the
exemption authority it seeks be granted for a term of one year.

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

Applicant representative:  Aaron A. Goerlich, 202-776-3970	      DOT
analyst:  Robert J. Finamore, 202-366-2405

Responsive pleadings:  On January 11, 2006, American Airlines, Inc.
(American) and United Air Lines, Inc. (United) filed a joint answer in
opposition to Flyglobespan’s application.  The carriers stated that
Flyglobespan’s request should be deferred until the United Kingdom,
Flyglobespan’s homeland, ends what American and United assert is a
discriminatory fuel allocation scheme imposed by BAA plc at London’s
Heathrow Airport.  American and United stated that they do not dispute
the need for fuel rationing in the wake of the U.K.’s Buncefield oil
depot fire on December 11, 2005.  However, they stated that BAA plc’s
fuel rationing arrangement gives U.K. carriers a higher percentage of
their fuel requirements than is given to U.S. carriers.  Consequently,
according to the carriers, U.S. carriers must tanker in extra fuel on
their U.S. to Heathrow flights, resulting in additional fuel expenses
because of the higher rate of fuel burn required to carry the extra
weight of the tankered fuel.  American and United stated that this
discriminates against them and is a direct violation of the U.S.-U.K.
Air Services Agreement.

On January 23, 2006, Flyglobespan filed a reply.  It stated that the
U.K. Government has not violated the Agreement.  It asserts that because
BAA plc is a private corporation, the U.K. Government cannot direct it
to take specific actions with respect to fuel allocation.  Flyglobespan
stated that the dispute is a private business matter between the U.S.
carriers and BAA plc, and that its application has nothing to do with
the fuel rationing situation at Heathrow.  Moreover, Flyglobespan is not
seeking authority here to operate at Heathrow.

	DISPOSITION

Action:  Approved.									Action date:  April 13, 2006

Effective dates of authority granted:  April 13, 2006, through April 13,
2007.

Basis for approval:  United States-United Kingdom Air Services
Agreement.

Except to the extent exempted/waived, this authority is subject to the
terms, conditions, and limitations of our standard exemption conditions
(attached). 

Special conditions/Remarks:  Flyglobespan submitted its application
pursuant to the May 25, 1989, Exchange of Notes (1989 Exchange of Notes)
between the United States and the United Kingdom under which the
aviation authorities of each country will normally accept, on a
reciprocal basis, the other government’s fitness and citizenship
determinations in regard to carriers seeking authority to conduct
certain bilateral services, including the authority sought by
Flyglobespan.  Based on the record in this case, we found that
Flyglobespan is operationally and financially qualified to conduct the
proposed services, and that it is substantially owned and effectively
controlled by homeland nationals.  We make this finding based on the
1989 Exchange of Notes.  We also note that the applicant is properly
licensed by its homeland to perform the proposed services.  In addition,
by memorandum dated March 7, 2006, the Federal Aviation Administration
advised us that it knew of no reason why we should act unfavorably on
the applicant’s requests.  

 

With respect to the concerns raised by American and United, we recognize
the importance of the issue regarding fuel rationing at Heathrow
Airport.  In the time since their pleading was filed in this case, U.S.
and U.K authorities have discussed this issue, and U.K. and non-U.K.
carriers are currently receiving the same percentage of their base
weekly fuel allocations for comparable services.  We are continuing to
monitor the situation. 

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) our action was consistent with Department
policy; (2) the applicant was qualified to perform its proposed
operations; (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                                    
                              ATTACHMENT

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; except
as otherwise provided for in the U.S.-U.K. Air Services Agreement;

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

 Flyglobespan’s exemption application also references its pending
foreign air carrier permit application in Docket OST-2006-23453.  We
will handle its permit application separately.

 

