BEFORE THE DEPARTMENT OF TRANSPORTATION WASHINGTON, D.C. Application of Pullmantur Air, S.A. Docket OST-2003-16831 for a Foreign Air Carrier Permit pursuant to 49 U.S.C. 41301 and for an Exemption pursuant to 49 U.S.C. 40109 (US-EU Open Skies Authority) FIRST AMENDED APPLICATION OF PULLMANTUR AIR, S.A. FORA Communications with respect to this document should be sent to: George Mencio, Jr. HOLLAND & KNIGHT LLP 701 Brickell Avenue, Suite 3000 Miami, FL 33131 (305) 274-8500 george.mencio@hklaw.com Anita M. Mosner Sophy Chen HOLLAND & KNIGHT LLP 2099 Pennsylvania Avenue, N.W., Suite 100 Washington, D.C. 20006-6801 Phone: (202) 955-3000 Fax: (202) 955-5564 anita.mosner@hklaw.com sophy.chen@hklaw.com Attorneys for PULLMANTUR AIR, S.A. Dated: November 13, 2007 NOTICE: ANY PERSON MAY FILE AN ANSWER TO THIS APPLICATION. ANSWERS MUST BE FILED IN THIS DOCKET AND SERVED UPON THE PERSONS LISTED ABOVE, ON OR BEFORE NOVEMBER 28, 2007 FOR THE EXEMPTION APPLICATION AND DECEMBER 5, 2007 FOR THE PERMIT APPLICATION.
BEFORE THE DEPARTMENT OF TRANSPORTATION WASHINGTON, D.C. Application of Pullmantur Air, S.A. Docket OST-2003-16831 for a Foreign Air Carrier Permit pursuant to 49 U.S.C. 41301 and for an Exemption pursuant to 49 U.S.C. 40109 (US-EU Open Skies Authority) FIRST AMENDED APPLICATION OF PULLMANTUR AIR, S.A. FOR A Pursuant to 49 U.S.C. 40109 and 41301, section 211 of the Department's regulations, subparts B and C of the Department's Rules of Practice, and the Department's streamlined licensing procedures, Pullmantur Air, S.A. ("Pullmantur Air") submits this Amended Application 1 for a Foreign Air Carrier Permit and for an exemption so that Pullmantur Air will be able to exercise new rights made available to European air carriers pursuant to the Air Transport Agreement between the United States and the European Community and the Member States of the European Union ("US-EC Agreement"). Pullmantur Air also requests that the Department amend its existing exemption from 49 U.S.C. 41301 2 to the extent necessary to enable it to provide the services covered by this Amended Application (described below) while the Department evaluates this application. 1 Pullmantur Air submitted its initial application for a Foreign Air Carrier Permit on December 29, 2003 (Docket OST-2003-16831), which remains pending before the Department. 2 Notice of Action Taken in Docket OST-2003-16832, dated Aug. 15, 2007.
Pullmantur Air requests that the Department process this application pursuant to its streamlined regulatory procedures 3 and issue a single order that (a) grants the requested exemption authority for a two-year period or until the requested permit authority becomes effective, and (b) approves this Foreign Air Carrier Permit Application under the Department's show-cause procedures, unless the Department determines that proceeding directly to a final order issuing a Foreign Air Carrier Permit is appropriate. Pullmantur Air further requests that the Department grant the requested authority and make it effective on March 30, 2008, or on any other date on which the US-EC Agreement takes effect. In support of this application, Pullmantur Air states as follows: 1. Under the newly-signed US-EC Agreement, both US and European carriers gained rights to offer new service in the US-EC market. Pullmantur Air is filing this Amended Application so that it may exercise these new rights directly upon their entry into force. Specifically, Pullmantur Air requests that the Department grant it the right to provide the following: Foreign air transportation of persons, property, and mail from any point or points behind any Member State of the European Union via any point or points in any Member State and via intermediate points to any point or points in the United States and beyond; Foreign air transportation of persons, property, and mail between any point or points in the United States and any point or points in any member of the European Common Aviation Area; Foreign cargo air transportation between any point or points in the United States and any other point or points; 3 Notice in Docket OST-2005-22228 (Aug. 26, 2005) (In the Matter of Streamlining Regulatory Procedures for Licensing US and Foreign Air Carriers).
Other charters pursuant to the prior approval requirements set forth in Part 212 of the Department's Economic Regulations; and Transportation authorized by any additional route rights made available to European Community carriers in the future. 2. Approval of the foregoing rights is squarely provided for under the new US-EC Agreement. On March 2, 2007, the United States and the European Community successfully concluded negotiations for the first phase of a new air transport agreement. The European Council approved that agreement on March 22, 2007. The agreement was signed on April 30, 2007, and it begins to apply on a provisional basis on March 30, 2008. Pullmantur Air asks that the Department grant the requested authority to the full extent provided by the existing US-EC Agreement and automatic application of additional rights made available to European Community carriers in the future. 3. Although the US-EC Agreement does not become effective until March 30, 2008, the Department already has granted prospective blanket certificate authority to several US carriers, which will enable them to serve future open skies partners (including Member States) once an agreement between the United States and those partners is being applied. 4 The Department invited all other US air carriers who hold certificate authority to conduct foreign scheduled air transportation to apply for similar authority. 5 In the April 3rd Notice, the Department stated that this expanded blanket authority "will enhance operational flexibility and administrative convenience for the certificate holder." The Department further authorized all US air carriers that 4 See Order 2007-4-2 in Docket OST-2000-8546, issued Feb. 23, 2007; Order 2007-4-19 in Dockets OST-2006-25917 and 26037, issued Mar. 20, 2007; and Order 2007-4-20 in Docket OST-2005-22578, issued Mar. 23, 2007. 5 See Notice in Docket OST-2007-27790, dated Apr. 3, 2007.
currently hold or subsequently receive blanket open-skies certificate authority to accept payment and issue tickets for services to points within the European Union where such services may not commence until March 30, 2008. 6 4. The equal opportunity provisions set forth in Article 2 of the US- EC Agreement require similar treatment for this Application. 7 Such similar treatment is necessary to enable Pullmantur Air to develop schedules, conduct marketing and promotional activities, and complete other preparations required to implement the authority requested in this Application immediately upon effectiveness of the new US-EC Agreement. 5. Pullmantur Air is a Spanish corporation (a sociedad anonima) organized and existing in good standing under the laws of the Kingdom of Spain. Its principal place of business is at Calle Mahonia, 2 - Edificio Portico - Planta 6a, Avenida de los Andes - Campo de las Naciones, 28043 Madrid, Spain. 6. Pullmantur Air is licensed by the Direccion General de Aviacion Civil, which has regulatory jurisdiction over the carrier. The DGAC's address is Paseo de Castellana, 67 28071 Madrid, Spain. 7. Information on all directors, officers, and key management personnel was provided with Pullmantur Air's initial application for a Foreign Air Carrier Permit. That list of executives has changed as follows: a. Enrique Bretos - Managing Director 6 See Notice dated May 1, 2007 (In the Matter of Blanket Open-Skies Certificate Authority). 7 By Notice dated May 3, 2007, the Department invited foreign air carriers from the European Union to apply for authority to conduct operations pursuant to the US-EC Agreement.
b. Salvador Escriva - Operations Director c. Aleixandre Schudeck - Technical Director d. Justo Hernandez - Operations and Maintenance Quality Manager. All are Spanish citizens, and none are related by blood or marriage. 8. The names and citizenship of all persons holding five percent or more of the capital stock in Pullmantur Air has changed from the information provided with Pullmantur Air's initial application for a Foreign Air Carrier Permit. At the time of its original application, Pullmantur Air was a wholly owned subsidiary of Pullmantur, S.A., a Spanish corporation, which was, in turn, owned by two Spanish corporations, Teinver, S.A. and Travel Bus, S.A. In August 2006, both Teinver, S.A. and Travel Bus, S.A. entered into a stock purchase agreement with Royal Caribbean Cruises Ltd. ("RCCL") to sell their entire interest in Pullmantur, S.A., to RCCL (the "Agreement"). As a condition to closing, Pullmantur S.A. transferred 51% of its interest in Pullmantur Air to Teinver, S.A. The sale of Pullmantur, S.A. to RCCL closed in November 2006 pursuant to the Agreement. Thus, Pullmantur Air remains a Spanish airline that is majority owned and controlled by Spanish nationals with Teinver, S.A. owning 51% of the company and Pullmantur S.A. owning the remaining 49%. Neither Pullmantur Air nor any of its officers or managers hold an interest in any (i) US air carrier; (ii) any other foreign carrier; (iii) any person engaged in the business of aeronautics; (iv) or any air carrier or any person whose principal business is the holding of stock in, or control of, any air carrier. Pullmantur Air is not owned in whole or in part by its homeland government.
9. Pullmantur Air's insurance coverage meets or exceeds the liability limits of Part 205 of the Department's rules. 10. Pullmantur Air's current Air Operator Certificate(s) are attached. 11. At this time, under exemption authority from the Department, 8 Pullmantur Air conducts charter foreign air transportation of persons, property, and mail between Spain and the United States. The exemption also permits Pullmantur Air to conduct other charters in accordance with Part 212 of the Department's rules. 9 12. Spain is a signatory to the Convention on International Civil Aviation. Pullmantur Air's maintenance programs continue to comply with ICAO Annexes 1, 6 (Part 1), and 7. 13. Pullmantur Air does not have any agreement or cooperative working arrangements with any U.S. or foreign air carrier affecting the services covered by this Amended Application. 14. Since its inception, Pullmantur Air has not been involved in any safety or tariff violations or any fatal accidents. 15. Pullmantur Air will continue to conform to the statutory provisions and the Department's rules, regulations, and requirements and will accept and abide by all terms, conditions, and limitations that the Department normally attaches to Foreign Air Carrier Permits. See Notice of Action Taken in Docket OST-2003-1683, dated Aug. 15, 2007. 9 See id.
16. Issuance of this authority will not constitute a major regulatory action under the Energy Policy and Conservation Act of 1975, as defined in Part 313 of the Department's regulations. 17. Given that the rights requested herein are consistent with the new US-EC agreement, there can be no question that approval of this Application would be consistent with the public interest. The authority requested here will provide consumers with additional choices in air transportation, expand the transatlantic service options currently available, and increase competition, and therefore benefit the traveling public.
WHEREFORE, for the foregoing reasons, Pullmantur Air respectfully requests that the Department grant the requested Foreign Air Carrier Permit and corresponding exemption authority. Pullmantur Air further requests any different or additional relief that the Department may deem necessary. Respectfully submitted, Anita M. Mosner Sophy Chen HOLLAND & KNIGHT LLP 2099 Pennsylvania Avenue, N.W., Suite 100 Washington, D.C. 20006-6801 Phone: (202) 955-3000 Fax: (202) 955-5564 anita.mosner@hklaw.com sophy.chen@hklaw.com George Mencio, Jr. HOLLAND & KNIGHT LLP 701 Brickeli Avenue, Suite 3000 Miami, FL 33131 (305) 274-8500 george.mencio@hklaw.com Attorneys for PULLMANTUR AIR, S.A.
CERTIFICATE OF SERVICE I hereby certify that I have this date served the foregoing "Amended Application for a Foreign Air Carrier Permit and an Exemption" on the persons identified below by causing a copy to be sent by electronic mail. RECIPIENT Carl B. Nelson Hershel 1. Kamen Dan Weiss Robert E. Cohn Patrick R. Rizzi Shannon Edwards Prashanth Athreya John Riggs John Palo James J. Ballough Angeline Bird Alexander van der Bellen Russell E. Pommer Kevin P. Montgomery Jeffrey Manley Julie Oettinger David L. Vaughan Howard Kass Benjamin T. Slocum COMPANY American Airlines Continental Airlines Hogan & Hartson for Delta Air Lines Evergreen International Airlines, Inc. Federal Aviation Administration FedEx Northwest Airlines, Inc. Polar Air Cargo Inc. and Atlas Air, Inc. Polar Air Cargo, Inc. United Airlines Kelley, Drye & Warren for UPS US Airways carl.nelson@aa.com E-MAIL hkamen@coair.com dan.weiss@coair.com recohn@hhlaw.com prrizzi@hhlaw.com shannon.edwards@evergreenaviation.com prashanth.athreya@everqreenairlines.com iohn.riqqs@everqreenairlines.com iohn.palo@everqreenairlines.com iim.ballouqh@faa.qov anbird@fedex.com sllunsford@fedex.com sascha.vanderbellen@nwa.com rpommer@atlasair.com kevin.montqomerv@dolaraircarqo.com jeffrey.manlev@united.com julie.oettinqer@united.com dvauqhan@kellevdrve.com howard kass@usairwavs.com beniamin.slocum@usairways.com
RECIPIENT Malcolm L. Benge COMPANY Zuckert Scoutt & Rasenberger LLC for World Airways, Inc. E-MAIL mlbenge@zsrlaw.com #4743713 v3 Sophy Chen, Esq. November 13,2007