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OST Docket Filings for March 22, 2005
Updated:
| Applications and Renewals:
Continental - Withdrawal of Tripoli Codeshare - Redundant Custom Air Transport - US-Costa Rica/Dominican Republic Scheduled Cargo Renewal EAS at Clarksburg/Fairmont, WV - Notice of Air Midwest to Terminate Service EAS at Morgantown, WV - Notice of Air Midwest to Terminate Service EAS at Parkersburg, WV - Notice of Air Midwest to Terminate Service Mexicana - Mexico City-Las Vegas / San Luis Potosi-San Antonio Renewals Answers and Replies: Carriers v. Port Authority of NY & NJ - Joint Complainants' Motion for Leave to File Unauthorized Documents Charter Rules for Foreign Direct Air Carriers - Comments of ACI-NA, AFL-CIO, Air Atlantic Icelandic, Amerijet, Antonov, Apple Companies, ATA, Atlas, Condor, First Choice, GWV Travel, Skyservice, TACA Carriers, Thomas Cook, TNT Vacations, Vacations Express Ryan International - Letters in Support of Milwaukee-Cancun Route Small Community Air Service - Newport News/Williamsburg Letters in Support Notices of Action Taken: Volga-Dnepr - Denver-Cape Canaveral Notices and Orders: Allegheny Airlines d/b/a US Airways Express - Order Cancelling Certificate Authority Participation by Disadvantaged Business Enterprises in Airport Concessions - Final Rule / Supplemental Notice of Rulemaking SkyLink Airways - Final Order |
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Allegheny Airlines, Inc. d/b/a US Airways Express Order 2005-03-29 Issued March 22, 2005 | Served March 25, 2005 Order Cancelling Certificate Authority Allegheny Airlines, Inc. d/b/a US Airways Express, a wholly owned subsidiary of US Airways Group, Inc., holds certificates of public convenience and necessity to engage in interstate and foreign scheduled air transportation of persons, property, and mail. By letter dated August 3, 2004, US Airways, Inc. informed the Department that, on July 1, 2004, Allegheny merged with Piedmont Airlines, Inc. d/b/a US Airways Express. In that letter, US Airways also noted that Allegheny had surrendered its Operations Specifications to the Federal Aviation Administration on July 27, 2004, and that the carrier’s interstate and foreign certificates would be surrendered to the Department for cancellation. In light of the above, we will cancel the interstate and foreign certificate authority held by Allegheny. By: Randall Bennett Brendan Airways, LLC d/b/a USA 3000 Airlines, British Airways PLC, Scandinavian Airlines System, Societe Air France, Swiss International Airlines, Virgin Atlantic Airways Limited, Deutsche Lufthansa, AG, TAP Air Portugal, Alitalia-Linee Aeree Italiane-S.p.A., EL AL Israel Airlines Limited, Air Jamaica Limited, Singapore Airlines Limited and KLM Royal Dutch Airlines v. The Port Authority of New York and New Jersey and Newark International Airport March 22, 2005 Joint Complainants' Motion for Leave to File Unauthorized Documents Respectfully request that the presiding Administrative Law Judge permit Complainants to take the deposition of David Kagan or other document custodian of Respondent, and modify Attachment 1 to the Instituting Order to add additional categories of documents and information to be produced, to the extent that the additional information and documents are not already required to be produced by Attachment 1. Counsel: Pierre Murphy, 202-776-3980, pmurphy@lopmurphy.com for USA 3000 / Garofalo Goerlich, Don Hainbach, 202-776-3976, dhianbach@hhg-airlaw.com for British and Swiss / Silverberg Goldman, 202-944-3305, mgoldman@sgbdc.com for Scandinavian and Air France / Vijendran Alfreds, vijendran_alfreds@singaporeair.com.sg for Singapore Air / Arthur Molins, 516-296-9234, arthur.molins@dlh.de for Lufthansa / Vanessa Tamms, 44-1293-448-507, vanessa.tamms@fly.virgin.com for Virgin Atlantic / Steptoe & Johnson, William Karas, 202-429-6223, wkaras@steptoe.com for TAP Air Portugal / Paul Mifsud, 202-955-7993, pmisfudklm@earthlink.net for KLM / McBreen & Kopko, 516-364-1095, lkirsch@mklawnyc.com for El Al / Hogan & Hartson, George Carneal, 202-637-6546, gucarneal@hhlaw.com for Air Jamaica / Zuckert Scoutt, Richard Mathias, 202-298-8660, rdmathias@zsrlaw.com for Alitalia-Linee Charter Rules for Foreign Direct Air Carriers
March 22, 2005 Re: Comments of AFL-CIO Transportation Trades Department The first of the proposed changes would require applicants for a statement of authorization pursuant to Part 212 to provide evidence that it has verified that its home country accords reciprocal treatment to comparable U.S. earner requests. This proposal will facilitate DOT's decision making process by ensuring that evidence of a key decisional element, reciprocity, is placed in the record as an initial matter. The second change, the provision of information about the number of third and fourth freedom operations of the applicant in the preceding calendar year, ensures that evidence that will permit the DOT to assess another key decisional criteria ‑ the degree of reliance of the applicant on 7th freedom operations ‑ is in the record at the outset. The Department's proposed changes appropriately require the party that has the best access to this critical information to provide it. By: AFL-CIO
March 22, 2005 Re: Comments of Air Atlantic Icelandic Although the proposed modifications to the Form 4540 are less egregious, AAI respectfully submits that these changes would serve no useful purpose and would create unnecessary administrative burdens. With respect to the reciprocity statement, there is no basis for assuming that U.S. carriers would have any hesitation in alerting the Department to instances where the home country of a foreign applicant has failed to accord full reciprocity to U.S. carrier applicants. On those relatively rare occasions where reciprocity may have been lacking that information has been provided to the Department promptly and the Department has taken appropriate action. The existing system works and there is no reason to change it. There also is no reason to amend the existing form to require submission of historical U.S-homeland flight data. To the extent the Department requires additional or supplemental data, the Department could require the applicant to provide any necessary information if and when the need arose. Counsel: Garofalo Goerlich, Don Hainbach, 202-776-3970, dhainbach@ggh-airlaw.com
March 22, 2005 Re: Comments of Airports Council International - North America | Word Strongly urges DOT to confirm in its final order that it will not adopt a right of first refusal for U.S. carriers. Indeed, the U.S. has pursued provisions in its air service agreements, which prohibit the right of first refusal in ways that would be inconsistent with the purposes of the agreement. As stated in our previous comments, ACI-NA opposes the creation of such a protectionist mechanism which would be detrimental to many U.S. interests by circumscribing the flexibility of charterers to negotiate the best deals for their customers, damage U.S. Government credibility and leverage in eliminating similar practices by other countries and undermine U.S. ability to implement its liberalization objectives. All of these results would be injurious to U.S. airports and their communities. By: Diane Peterson, 202-293-8500, dpeterson@aci-na.aero
March 22, 2005 Re: Comments of Air Transport Association of America The Department has correctly concluded that considerations such as reasonable balance and right‑of‑first refusal should not be part of its evaluation of foreign air carrier charter authorization applications. Inclusion of those concepts in Part 212 would represent a retreat from the marketplace principles that the U.S. Government has championed for many years. Moreover, they would subject U.S. air carrier operations to retaliatory actions by foreign governments. Finally, as noted above, some of the technical changes that the NPRM has proposed would benefit from the further refinements that we describe in these comments. Counsel: James Casey, 202-626-4211, jcasey@airlines.org
March 22, 2005 Re: Comments of Amerijet International Amerijet welcomes and supports the procedural modifications the Department is proposing to impose on the application process. It also supports the Department's reaffirmation that foreign air carriers will not be permitted to rely unduly on fifth, sixth or sevent freedom operations. Amerijet believes that his renewed declaration could have a very disciplining force on the market and can be an important disciplining force on those carriers which have relied unreasonably on other third and fourth freedom operations in the past. Counsel: John Richardson, 202-371-2259
March 22, 2005 Comments of Antonov Design Bureau Antonov commends the Department for taking a relatively limited regulatory approach in addressing NACA's petition for rulemaking, and declining to adopt NACA's highly protectionist "right of first refusal" and "substantially equivalent reciprocity" proposals. However, Antonov urges the Department to reconsider its proposal to require four annual reciprocity verifications to be submitted by a foreign applicant's homeland government, especially if the applicant operates only occasional cargo charter flights. In the context of making reciprocity and "undue reliance" determinations, Antonov also urges the Department to continue to recognize and take into account the unique nature of Antonov's outsized cargo service and the valuable contributions such services have made in responding to emergencies and advancing other U.S. interests over the years. Finally, Antonov urges the Department to reject NACA's proposals with respect to additional application requirements for cargo operators. Counsel: Hogan & Hartson, Robert Cohn, 202-637-4999, recohn@hhlaw.com
March 22, 2005 Re: Comments of Apple Companies Apple submits that the regulatory changes originally proposed by NACA were intended to eliminate competition in the U.S. passenger charter market and, if adopted, would have had the result sought by NACA. Adoption of the proposed changes would not only have been contrary to the overall interests of all U.S. air carriers and their employees, but the anti-competitive and protectionist approach advocated by NACA would have been particularly damaging to other interested parties, including U.S. indirect air carriers such as Apple and its employees. In addition, adoption of NACA' s changes would have violated existing U.S. bilateral treaty obligations. Counsel: Pierre Murphy, 202-776-3980, pmurphy@lopmurphy.com
March 22, 2005 Atlas strongly supports the Department's tentative decision not to adopt the specific measures proposed by NACA. Were the Department to adopt a newly restrictive reciprocity standard or give U.S. carriers a right of first refusal, for instance, it would be turning the clock backwards on air transport liberalization. Establishment of a strict reciprocity standard would add rigidity to the foreign carrier charter licensing process and encourage other governments to retaliate against U.S. carriers. Creation of a right of first refusal would provide undesirable precedent to support requests by other govern ments in bilateral negotiations for more unilateral controls over charter services. Counsel: Atlas, Russell Pommer, 202-822-9121
March 22, 2005 Re: Comments of Condor Flugdienst Given DOT's ongoing efforts to liberalize international air service markets, it is puzzling why the Department would use its scarce resources to impose a new regulatory requirement at this time. Indeed, by imposing new regulatory obligations, the Department appears to be signaling its intent to be less flexible, not more, in its review of charter services. In fact, by focusing quite intensively on the precise number of Third/Fourth Freedom services operated by a foreign carrier within a given period of time (and presumably limiting that carrier's Fifth Freedom services on that basis), DOT appears to be adopting a "tit for tat" stance toward air service that may have adverse implications for US carriers elsewhere in the world. Thus, this initiative appears to be at odds at least with the spirit, if not the letter, of settled US international aviation policy. Counsel: Garfinkle Wang, Anita Mosner, 703-294-5890
March 22, 2005 Re: Comments of First Choice Airways The Proposed Reciprocity Verification Requirements Are Unduly Burdensome and Should Be Modified. First Choice Airways urges the Department to modify the proposed requirements related to block 12 on OST Form 4540 in two respects: first, an applicant should be permitted to rely on its previous verification of reciprocity absent evidence or objections raising doubts about the continuance of such reciprocity; second, an applicant should be permitted to reference and rely upon a verification submitted by another carrier from the same homeland and previously accepted by the Department. There is no reason to require updating of verifications every 90 days, since once a country establishes reciprocity for U.S. carriers, it rarely reverses that policy so quickly. As a result, there should be a rebuttable presumption that reciprocity continues. Counsel: First Choice
March 22, 2005 Comments of GWV Travel on Notice of Proposed Rulemaking Altering the definitional treatment of charters presently categorized as fifth freedom in Part 212, as the Department proposes, would invite confusion about the nature of these flights. The definition of fifth-freedom charters, which the Department proposes to leave unchanged, currently applies to flights originating and terminating in Indeed, defining these charters in scheduled service terms could raise needless questions about the basis for such charters in U.S. bilateral treaties. Counsel: Wilmer Cutler, Bruce Rabinovitz, 202-663-6960
March 22, 2005 Re: Comments of Skyservice Airline Takes issue with certain proposed modifications to the charter rules contained in the NPRM. These include requiring each carrier applying for fifth-freedom authority under Part 212 to (a) provide evidence of reciprocal treatment by the carrier's home country and (b) provide additional information regarding the extent of its third/fourth-freedom versus fifth-freedom charter services. For the Department to require such additional information of carriers from nations such as Canada, which has a liberal "open skies" agreement with the U.S., would serve no useful purpose. To Skyservice's knowledge, charter reciprocity has never been an issue under the U.S.-Canada open-skies agreement; and, statistical data are reported regularly to the Department's Office of Airline Information. Counsel: Garofalo Goerlich, Aaron Goerlich, 202-776-3970
March 22, 2005 NACA seeks nothing less than to codify protectionism through regulation even as the United States continues to expand and solidify the concept of open skies throughout the world. Although the Department rejected several NACA proposals, Grupo TACA believes the proposed rule (and the associated proposed amendments to Form 4540) still contains unreasonable, inappropriate and counterproductive components that should be withdrawn, especially with regard to carriers based in open skies countries such as those of Central America. Indeed, the Department's own findings and conclusions support Grupo TACA's belief that additional and burdensome regulations in the form of amendments to Part 212 are neither necessary nor justified. Counsel: Squire Sanders, Charles Donley, 202-626-6840
March 22, 2005 Re: Comments of Thomas Cook Airlines UK Thomas Cook wonders why the change to DOT's rules is necessary at this time. As a practical matter, DOT has not had any known difficulty in determining whether or not an airline is or is not "unduly reliant" on Fifth Freedom charters. Moreover, the Department always has required carriers to demonstrate that approval of their services would be warranted on the basis of reciprocity. Counsel: Garfinkle Wang, Anita Mosner, 703-294-5890
March 22, 2005 TNT applauds the Department for preserving a liberal charter operating environment by turning down the majority of NACA's proposal, including a right of first refusal to U.S. carriers. TNT Vacations, however, is concerned that the NPRM proposes to make certain changes to the rules. These changes would include requiring fifth freedom applicants to file reciprocity information and statistics concerning the number of their U.S.-homeland versus U.S.-non-homeland services. TNT believes these requirements would be an unnecessary burden and may discourage foreign air carriers from entering the fifth freedom market, to the detriment of the traveling public. Counsel: Garofalo Goerlich, Aaron Goerlich, 202-776-3970
March 22, 2005 Re: Comments of Vacation Express Both of the proposed requirements seek information already available to the Department from other sources. Experience shows that U.S. carriers do not hesitate to object to fifth-freedom applications on the basis that the home country fails to provide reciprocal rights or that the applicant relies unduly on fifth-freedom charters. Further, the ratio of the applicant's third/fourth-freedom versus fifth-freedom charters is readily available to the Department from traffic reports on file with the Office of Airline Information. Given these circumstances, the Department should avoid the introduction of new procedures or burdens that may have a chilling effect on the willingness of eligible carriers to compete for U.S.-originating business. Counsel: Garofalo Goerlich, Aaron Goerlich, 202-776-3970 Compania Mexicana de Aviacion, S.A. de C.V. OST-1997-2272 - Exemption - Mexico City-Las Vegas March 22, 2005 Application for Renewal of Exemptions Mexicana holds authority in Docket OST‑1997‑2272 to operate scheduled combination services between Mexico City and Las Vegas, and currently operates frequent service between the two cities. In accordance with its exemption in Docket OST‑1999‑5006, Mexicana also offers twice‑weekly service between San Luis PotosI and San Antonio under its codeshare agreement with Transportes Aeromar by placing the MX* designator code on flights operated by Aeromar. Counsel: Squire Sanders, Charles Donley, 202-626-6840 OST-2004-19165 - US-Libya Codesharing March 22, 2005 Re: Withdrawal of Exemption Application Continental withdraws its exemption application for authority to serve Tripoli, Libya in this docket since Continental now holds blanket exemption authority for codesharing purposes which will allow it to serve Tripoli in conjunction with its codeshare partners. (See Notice of Action Taken, Docket OST-2005-20122, March 1, 2005) Counsel: Crowell & Moring, Bruce Keiner, 202-624-2615 OST-2003-15206 - Exemption - US-Costa Rica/Domonican Republic Scheduled Cargo Service March 22, 2005 Application for Renewal of Exemption Authority CAT has operated scheduled cargo service to Costa Rica and the Dominican Republic pursuant to the authority at issue, though it is not currently operating this service due to market conditions. However, it desires to maintain its authority, both from the U.S. and foreign governments, to enable it to reenter these markets should conditions warrant. Counsel: Sher & Blackwell, Mark Atwood, 202-463-2513 Essential Air Service at Clarksburg/Fairmont, West Virginia OST-2005-20736 March 22, 2005 Notice of Air Midwest to Terminate Scheduled Air Service Order 84‑11‑62 set forth the essential air service determination at Clarksburg/Fairmont, WV to require two daily nonstop roundtrips each day to Pittsburgh or Washington, with a minimum of 62 inbound and outbound seats per day with 15‑seat or larger equipment. Air Midwest is currently operating four weekday roundtrips; two Saturday and three Sunday roundtrips to Pittsburgh, Pennsylvania using Beech 1900D aircraft. Though Air Midwest would prefer to continue providing scheduled air service in Clarksburg/Fairmont, West Virginia the substantial costs resulting from increased federal regulations for regional carriers, the escalating price of jet fuel and the continuing downward pressure on passenger yield make it impossible to continue without Essential Air Service subsidy. The absence of this subsidy requires Air Midwest to advise the Department that scheduled air service will be discontinued. At present, Air Midwest is the sole provider of certificated scheduled air service at Clarksburg/Fairmont, West Virginia. By: Mesa Air, Mickey Bowman, 602-685-4130 Essential Air Service at Morgantown, West Virginia OST-2005-20735 March 22, 2005 Notice of Air Midwest to Terminate Scheduled Air Service Order 84‑11‑62 set forth the essential air service determination at Morgantown, WV to require two daily nonstop roundtrips each day to Pittsburgh or Washington, with a minimum of 62 inbound and outbound seats per day with 15‑seat or larger equipment. Air Midwest is currently operating five weekday roundtrips; two Saturday and four Sunday roundtrips to Pittsburgh, Pennsylvania using Beech 1900D aircraft. Though Air Midwest would prefer to continue providing scheduled air service in Morgantown, West Virginia the substantial costs resulting from increased federal regulations for regional carriers, the escalating price of jet fuel and the continuing downward pressure on passenger yield make it impossible to continue without Essential Air Service subsidy. The absence of this subsidy requires Air Midwest to advise the Department that scheduled air service will be discontinued. At present, Air Midwest is the sole provider of certificated scheduled air service at Morgantown, West Virginia. By: Mesa Air, Mickey Bowman, 602-685-4130 Essential Air Service at Parkersburg, West Virginia OST-2005-20734 March 22, 2005 Notice of Air Midwest to Terminate Scheduled Air Service Order 84‑11‑62 set forth the essential air service determination at Parkersburg, WV to require two daily nonstop roundtrips each day to Pittsburgh, with a minimum of 62 inbound and outbound seats per day with 15‑seat or larger equipment. Air Midwest is currently operating five weekday roundtrips and three Saturday and Sunday roundtrips to Pittsburgh, Pennsylvania using Beech 1900D aircraft. Though Air Midwest would prefer to continue providing scheduled air service in Parkersburg, West Virginia the substantial costs resulting from increased federal regulations for regional carriers, the escalating price of jet fuel and the continuing downward pressure on passenger yield make it impossible to continue without Essential Air Service subsidy. The absence of this subsidy requires Air Midwest to advise the Department that scheduled air service will be discontinued. At present, Air Midwest is the sole provider of certificated scheduled air service at Parkersburg, West Virginia. By: Mesa Air, Mickey Bowman, 602-685-4130 Participation by Disadvantaged Business Enterprises in Airport Concessions March 22, 2005 Supplemental Notice of Proposed Rulemaking By: Robert Ashby Ryan International Airlines, Inc. OST-04-19887 - Milwaukee-Cancun
January 24, 2005 Re: Congressman Mark Green Letter in Support of Milwaukee-Cancun Route By: Mark Green
January 21, 2005 Re: Congressman Paul Ryan Letter in Support of Milwaukee-Cancun Route By: Paul Ryan Order 2005-3-28 Issued January 24, 2005 | Served March 25, 2005 By Order 2005-1-1, issued January 5, 2005, we directed all interested persons to show cause why we should not make final our tentative findings and conclusions stated in it and award a certificate of public convenience and necessity to SkyLink Airways, Inc., authorizing it to engage in foreign scheduled air transportation of persons, property, and mail between the United States, on the one hand, and Aruba, Austria, Belgium, Canada, Chile, Costa Rica, the Czech Republic, the Dominican Republic, Germany, France, Italy, the Netherlands, Slovakia, Taiwan, and the United Kingdom (excluding London's Heathrow and Gatwick Airports), on the other hand. We also proposed to defer action on the remainder of SkyLink's request for foreign authority and on its application for interstate authority. No objections to the show-cause order were received. By: Karan Bhatia Small Community Air Service Development Program
February 22, 2005 The application seeks $800,000 to improve air service choices available to the 600,000 residents of the Virginia Peninsula region to attract nonstop low‑fare airline service to multiple new destinations. By: EDA
February 22, 2005 James City County Board of Supervisors in Support of Newport News/Williamsburg Grant Application Newport News/Williamsburg International Airport has a superior record of success in partnering with airlines to implement new air service. Recent examples include a community initiative to secure New York service in 2002. Similar success was achieved in the mid 1990's when the region used incentives to secure the airport's first Atlanta service. Today, two airlines provide Virginia citizens with eleven daily jet flights to Atlanta. I am confident that if awarded funding under the Small Community Air Service Program in 2005, Newport News/Williamsburg International Airport and the Virginia Peninsula will repeat the success achieved with both their New York and Atlanta programs, again‑improving the airline choices available to the regions air travelers. By: James City Council
February 8, 2005 York County Letter in Support of Newport News/Williamsburg Grant Application We are confident that if awarded funding under the Small Community Air Service Program in 2005, Newport News/Williamsburg International Airport and the Virginia Peninsula will repeat the success achieved with both the New York and Atlanta programs, again improving the airline choices available to the region's air travelers. By: York County, James McReynolds Volga-Dnepr J.S. Cargo Airlines OST-2005-20713 - Denver-Cape Canaveral Filed March 21, 2005 | Issued March 22, 2005 Exemption from 49 U.S.C. section 40109(g) to permit the applicant to operate two, one-way cargo charter flights, using its AN-124-100 aircraft, carrying outsized cargo on behalf of Lockheed Martin, from Denver, Colorado, to Cape Canaveral Air Force Station, Florida, during the period March 28-April 5, 2005. The applicant states that the first of these flights would carry an AVC007 Centaur Tank, and the second flight would carry an Atlas V AVB007 Booster. The applicant asserts that Lockheed Martin urgently needs the subject lift to complete aggressive integration and launch schedules; that the cargo is too large for transportation on US.-carrier aircraft; and that surface transportation is not feasible because of the cargo’s delicate nature and extremely high value. By: Karan Bhatia |
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