BEFORE THE UNITED STATES DEPARTMENT OF TRANSPORTATION WASHINGTON, D.C.

Transcription

1 BEFORE THE UNTED STATES DEPARTMENT OF TRANSPORTATON WASHNGTON, D.C. Application of AEROLNEAS REGONALES, d/b/a REGONALCARGO S.A. de C.V. Docket OST for a exemption to operate charter cargo services between points in Mexico and the United States MOTON AND ANSWER OF AMERJET NTERNATONAL, NC. Communications with respect to this document should be served upon: David G. Bassett President Amerijet nternational, nc S. Andrews Avenue Ft. Lauderdale, Florida (954) John L. Richardson John L. Richardson, P.L.L.C Calvert Street, N.W. Washington, D.C PH : (2 02 ) FAX: (540) jrichardson@johnl richardson. com Counsel for Amerijet nternational, nc. April 24, 2009

2 BEFORE THE UNTED STATES DEPARTMENT OF TRANSPORTATON WASHNGTON, D.C. Application of AEROLNEAS REGONALES, d/b/a REGONALCARGO S.A. de C.V. Docket OST for a exemption to operate charter cargo services between points in Mexico and the United States MOTON AND ANSWER OF AMERJET NTERNATONAL, NC. On December 9, 2008, Aerolineas Regionales, S.A. de C.V. d/b/a Regionalcargo ("Regionalcargo") filed an application for an exemption authorizing it to provide cargo charter air transportation between points in Mexico and points in the United States using Boeing 737 and ATR 42 aircraft it leases and operates with its own crews. On April 16, 2009, Regionalcargo filed an amendment to its application requesting authority to operate other than third and fourth freedom cargo charter flights to and from the United States. No party answered in opposition to Regionalcargo's application, and the Department has not taken any action on it during the four-month period it has been pending.

3 - 2 - Amerijet respectfully moves that it be permitted to file an answer in opposition to Regionalcargo's application even at this late date. 1/ At the time Regionalcargo's application was filed, Amerijet was not aware of any reason why it should have any concern about Regionalcargo or its application. Accordingly, it assumed the Department would dispose of the application in a routine manner. Since that time, however, and especially during the last few days, Amerijet has become aware of circumstances that lead it to believe that the Department should not treat this application in anything approaching a routine manner. On the contrary, those circumstances should convince the Department that the Regionalcargo application should be denied. As will become apparent, it is very important that the Department be made aware of these new circumstances and have all relevant information before it as it considers how it should react to the Regionalcargo application. No party will be unduly disadvantaged by the Department's consideration of the evidence set forth in Amerijet's answer or the delay that might be occasioned by the Department's consideration of it. ~/ t is certainly arguable that a motion to file late is not necessary in light of the fact that Regionalcargo filed an amendment to its application on April 16, 2009, only eight days ago. Although it appears that the amendment was not served on parties served with the original application, answers to the amendment should certainly be permitted, and this answer could be treated as an answer to the amendment which would not require special authorization from the Department.

4 - 3 - For these reasons, it is clearly in the public interest for the Department to permit Amerijet to file this answer and for the Department to consider its contents. t is axiomatic that an applicant for economic operating authority from the Department is required to demonstrate that it has and will continue to have a favorable regulatory compliance disposition. The Department simply should not and will not license a new entrant in a market if it has reason to believe that the applicant cannot be expected to comply with laws, regulations and policies of the u.s. Government. Operating lawfully and in full compliance with all the Department's regulations and policy pronouncements has always been a licensing requirement of the highest order, and that requirement should not be relaxed or overlooked now. On the contrary, it is especially important that the Department enforce this requirement at this time with respect to air carrier applicants seeking permission to serve the U.S.-Mexico cargo market. There perhaps has never been a time when so much U.S. Government attention has been focused on a transborder market anywhere in the world as the attention that is being focused on the U.S.-Mexico market today. And that enhanced attention is altogether appropriate. The international drug trade in the market with its related weapons trafficking, violence and other criminal activity has warranted the personal attention and presence in Mexico of President Obama and at least

5 - 4 - three u.s. Government cabinet members within the last few weeks alone. t would be inappropriate to suggest that this major law enforcement effort should necessarily be directed against Regionalcargo, and Amerijet makes no such suggestion. Amerijet does contend, however, that a reasonable degree of attention toward new carrier applicants seeking authority to serve this market is appropriate and that any evidence of possible irregularity on the part of the applicant warrants very serious investigation and remedial attention. Regionalcargo has no authority from the Department to serve the U.S.-Mexico all-cargo market in any way, and the operating authority it has received from the Government of Mexico to serve the market expressly prohibits it from serving the market unless and until it has been awarded operating authority by the Department and has supplied a copy of that operating authority to the Mexican DGAC. See translation of Regionalcargo's Mexican license attached to its exemption application, at Paragraph XV. Without authority to serve the market, under the law of the United States, Regionalcargo is not permitted to hold out service in the market or to solicit all-cargo business from the shippers that patronize the market. Yet, that is exactly what Regionalcargo has been doing for several weeks. As is apparent

6 - 5 - from Amerijet Exhibit, attached hereto, 1 Regionalcargo and its affiliates have very clearly been offering regularly scheduled all-cargo service at fixed rates in the Merida-Miami market. This holding out and solicitation of regularly scheduled all-cargo service 11 is clearly unlawful. But Regionalcargo and its affiliates are doing more than violating the Department's precedents regarding the premature holding out of air transport services and the solicitation of cargo traffic in the Miami-Merida market. n fact, since last Friday, Regionalcargo and its affiliates are actually providing regularly scheduled all-cargo services in the market in accordance with a published schedule of service for the market. Regionalcargo's regularly scheduled operation in the Merida-Miami market using aircraft leased to it il by Capital Cargo 2/ The ATA air carrier designation 720 has been assigned by ATA to Regionalcargo. l/ Regionalcargo is not authorized to provide -- and is prohibited from providing -- regularly scheduled service by the Mexican DGAC, and it is not applying for that authority in this docket. See, translation of Regionalcargo's Mexican license attached to its exemption application at Paragraph b). See, also, Paragraph a) which provides that Regionalcargo shall not operate any flight pursuant to the license unless and until the flight has been authorized by the DGAC. Amerijet has not been able to find any evidence that such approvals have been sought or received. ~/ Regionalcargo is only authorized by the Mexican DGAC to use Boeing 737 and ATR freighter aircraft it leases and operates with its own crews. See, translation of Regionalcargo's Mexican license attached to its exemption application at Paragraph V.

7 - 6 - nternational Airlines, nc. ("Capital) ~/ is a clear violation of the law and such a flagrant and contemptuous violation that the Department should conclude that Regionalcargo does not possess the necessary favorable compliance disposition which must be shown before any application can be approved. Accordingly, the Department should not license Regionalcargo to serve the United States. This harsh conclusion would be warranted in any similar situation in any market at any time. t is certainly even more compelling here when the carrier involved is seeking to serve the highly sensitive U.S.-Mexico cross-border cargo market, a market of such high concern to the Governments of Mexico and the United States. Therefore, for all these reasons, Amerijet respectfully urges the Department to investigate thoroughly the circumstances described above and, if Amerijet's contentions are proven to be 2/ Amerijet has not been able to locate any documentary evidence regarding the lease between Capital and Regionalcargo and therefore does not know if the agreement between the two carriers is a long-term wet lease requiring Department approval. Since Capital does not have authority from the Department to hold out or provide regularly scheduled service in the Miami-Merida market, it is also in violation of the law.

8 - 7 - correct r to deny Regionalcargo the exemption for which it has applied. April 24 r 2009 Respectfully submitted r ~:-L: c.~ John L. Richardson John L. Richardson r P.L.L.C Calvert Streetr N.W. Washington r D.C PH: (202) FAX: (540) jrichardson@johnl richardson. com Counsel for Amerijet nternational r nc.

9 -- Exhibit 1 o o Smart Cargo Alliance ().. :11 :

10 -! AERO TARFAS L.AMOL EXPORTAC6N DE PESCADO FRESCO CONCEPTO TARFA TARFA DE CARGA AEREA USD $0.63 x KG CARGO POR COMBUSTBLE USD $0.35 x KG CARGO POR SEGURDAD USD $0.02 x KG Smart Cargo Alliance.. CAPTAL CARGO!NTERN.i\T:')NALAlRllNE3 ARCARGOREPS Hltta-'!tl~ :t~'. ; ''''1f,,"M Cm '.1' Calk 96 N x 79-(' y 79-0 Clll. Sambula c.p Merida, Yucatan, Mexico

11 T NERARO EN HORAS LOCALES \'icl'ncia dt'l 17 de ahril al 08 de ma\,o 200l) Martes Miami Merida Salida 08:00AM Uegada 08:40AM Martes Merida Miami salida 10:10 AM Uegada 12:50 PM JUEVES Miami - Merida salida 00:20AM AER() _.- Uegada 01:00AM JUEVES Merida Miami Salida 03:00AM Uegada 05:40AM SABADO Miami. M~rida Salida 00:20AM Uegada 01:00AM SABADO Merida Miami Salida 03:00 AM Llegada 05:40AM Calle 96 N x 79 C y 79-D Col. Sambul<i c.p Merida, Yucatan, Mexico

12 Direccion de nuestro almacen en Miami Recepcion y entrega

13 AERO CONTACTOS MERDA ", RGOBERTO MORENO PNZON Director de Operaciones Tel. (999) 930.()8-10 Fax. (999) Nextel. 72*73867*42 Cel. (999) );. MARO GALLARETA ALCOCER Gerente de Operaciones Tel. (999) 93()"()8 10 Fa?,. (999) L.i\MOL Calle 96 N 670~D x 79-C y 79~D Col. Sambuhi c.p, Merida, Yucatan, Mexico

14 AERO" L.A 1\10L. Estimados Amigos Agentes de Carga: Nos com place anunciar el inicio de operaciones aereas de Aero Lamol en Merida el proximo 17 de Abril de 2009 en la ruta Merida - Miami - Merida. Les informamos que podran utilizar las guias aereas con prefijo lata 720 que corresponden a Regional Cargo. E procedimiento para la asignaci6n de dichas Qufas es el ya utilizado por ustedes para la sollcitud ante lata Mexico de Quias aereas internacionales virtuales. Nuestro compromiso es el de ofrecer un selvlco confiable que supere las expectativas de los exportadores e importadores de Yucatan. Sin otro particular por el momento, nos despedimos de usted, no sin antes enviandotes un cordial saluda y esperando nos brinden la oportunidad de pader servirles Atentamente AeroLamol Calle 96 N 670-[) x 79.f: y 79-0 Col, Sambula c.p Merida. Yucatan, Mexico

15 CERTFCATE OF SERVCE hereby certify that have, this 24th day of April, 2009, transmitted a copy of the foregoing document by or U.S. mail upon the following parties: Robert Silverberg william Evans Mark Atwood Marshall Sinick Carl Nelson Jonathan Blank R. Bruce Keiner Hershel Kamen Jonathan Echmalian Sascha Van der Bellen Herbert Rosenthal John Palo John Allen Angeline Bird Charles Donley James Tello Kevin Montgomery Joanne Young John R. Byerly Bruce Rabinovitz Julie Oettinger David Vaughan Howard Kass Malcolm Benge ABX/Kitty Hawk Aeromexico/ Centurion AA/TCA Alaska/FWA Mexicana American Capital Continental Continental Delta Delta/Northwest Estafeta/ Regionalcargo Evergreen FAA FedEx Mexicana Miami Air Polar Spirit DOS United United UPS USAir World rsilverberg@sgbdc.com bill@mietuslaw.com matwood@sherblackwell.com msinick@ssd.com carl.nelson@aa.com jonathan.blank@klgates.com rbkeiner@crowell.com hershel.kamen@coair.com jechmalian@hhlaw.com sascha.vanderbellen@delta.com herbert@herbertrosenthal.com john.palo@evergreenaviation.com john.allen@faa.gov anbird@fedex.com cdonley@ssd.com jamestello@earthlink.net kevin.montgomery@polaraircargo.com jyoung@yklaw.com byerlyjr@state.gov bruce.rabinovitz@wilmerhale.com julie.oettinger@united.com dvaughan@kelleydrye.com howard kass@usairways.com mlbenge@zsrlaw.com Mr. Nick Reyes (PO) DFW nternational Field Office Federal Aviation Administration Trinity Boulevard, #300 Forth Worth, Texas Julie Ellis Federal Express 2005 Corporate Avenue Memphis, Tennessee ~\;<.~~ John L. Richardson