Order 95-9-34

UNITED STATES OF AMERICA
DEPARTMENT OF TRANSPORTATION
OFFICE OF THE SECRETARY
WASHINGTON, D.C.

SERVED SEPTEMBER 29, 1995

EXECUTIVE AIRLINES 			|
					|
Violations of 14 CFR 212.4 and		|
            49 U.S.C. § 41301		|

CONSENT ORDER

This consent order concerns violations of the Department requirements for approval of Fifth Freedom charter flights under 14 CFR 212.4 and 49 U.S.C. § 41301 by Executive Airlines (Executive). This order directs Executive tocease and desist from future violations and to pay compromise civilpenalties.

As a foreign air carrier, Executive is subject to the Department's regulations for Fifth Freedom flights as defined in 14 CFR Part 212. Section 212.4 (14 CFR 212.4) requires that air carriers receive a statement of authorization prior to performing any Fifth Freedom flights. Section 212.2 defines a Fifth Freedom charter as "a charter carrying traffic that originates and terminates in countries other than the country of the carrier's nationality, regardless of whether the flight operates via the home country" (14 CFR 212.2). In addition, section 41301, the statutory provision, requiresforeign carriers to obtain permits prior to conducting flights to, from, or within the United States.

Between December 22, 1994, and January 20, 1995, Executive operated twelve flights on six different dates between the United States and Honduras; however, Executive did not have proper authority from the Department to conduct these flights. Six of these flights were undertaken before Executive had applied for Department approval,and the other six were operated after it had applied for but prior to it having received the appropriate authority.

In mitigation, Executive states that it did not realize that it needed authority to fly the first six flights which were flown for B.T.A. Cargo Ltd., under a wetlease arrangement. In addition, Executive claims that it understood that it had received verbal authrity from the Department to fly the six flights between January 13 and January20, 1995. Based on our investigation into this matter, we have determined that Executive needed to obtain prior authorization for the pre-January 12 wetlease flights, and would not confirm the verbal approval of the six flights between January 13-20.

The Enforcement Office has considered the information provided by Executive regarding its interpretation of the facts surrounding these flights but continues to believe that enforcement action is warranted. In this regard,the Enforcement Office and Exective have reached a settlement of this matter. Executive consents to the issuance of this order to cease and desist from future violations of section 212.4 of the Department's regulations (14 CFR 212.4) andsection 41301 of Title 49 (49 U.S.C.§ 41301) and to the assessment of $8,000 in compromise of potential civilpenalties as described below. Of this amount, $4,000 shall be paid within 30days of the date of issuance of this order. The remaining $4,000 shall be suspended for one year following the service date of this order and shall be forgiven unless Executive fails to comply with the payment provisions of this order or commits other violations of 49 U.S.C. §41301, or this order during the year following issuance of this order, in which case the entire unpaid portion of the $8,000 assessed penalty shall become due and payable immediately. The Enforcement Office believes that the assessment of a civil penalty of $8,000 is warranted in light of the nature and circumstances of the violations at issue here and the mitigating circumstances described by Executive. This order and the penalty it assesses will provide an adequate deterrence to future noncompliance by Executive, as well as by other domestic and foreign air carriers.

This order is issued under the authority contained in 49 CFR 1.57a and 14 CFR385.22.

ACCORDINGLY,

1. Based on the above discussion, we approve this settlement and the provisions of this order as being in the publicinterest;

2. We find that Executive violated 14 CFR 212.4 by failing to seek and obtain prior Department approval for Fifth Freedom flights between the United States and Honduras;

3. We find that Executive also violated 49 U.S.C.§ 41301 by failing to seek and obtain prior Department approval for Fifth Freedom flights between the United States and Honduras;

4. Executive, and all other entities owned or controlled by or under common ownership with Executive, and their successors and assignees, are ordered to cease and desist from violations of 14 CFR 212.4 and 49 U.S.C. § 41301;

5. Executive is assessed $8,000 in compromise of potential civil penalties that might otherwise be assessed for the violations found in paragraphs 2 and 3 of this order. Of this amount,$4,000 shall be paid within 15 days of the date of issuance of this order. The remaining $4,000 shall besuspended for one year following the issuance date of this order and shall be forgiven unless Executive fails to comply with the payment provisions of this order during the year following issuance of this order or commits other violations of Part 212, 49U.S.C. §41301, or this order during the year following issuance of this order, in which case the entire unpaid portion of the $8,000 assessed penalty shall become due and payable immediately and Executive will be subject to further enforcement action; and

6. Payment shall be made by wire transfer through the Federal Reserve Communications System, commonly known as "Fed Wire," to the account of the U.S. Treasury. The wire transfer shall be executed in accordance with the instructions contained in the Attachment to this order. Failure to pay the penalty as ordered will subject Executive to the assessment of interest, penalties, and collection charges under the Debt Collection Act, and possible enforcement action for failure to comply with this order.

BY:

			ROSALIND A. KNAPP
			 Deputy General Counsel

(SEAL)