 

			  UNITED STATES OF AMERICA

		        DEPARTMENT OF TRANSPORTATION

			  OFFICE OF THE SECRETARY

			          WASHINGTON, D.C.

Issued by the Department of Transportation on March 26, 2004

NOTICE OF ACTION TAKEN -- DOCKETS OST-2003-16315 & 16314

________________________________________________________________________
________________________________________________________

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(s):  Air-India Limited & Asiana Airlines, Inc.			

Background:  On October 10, 2003, Air-India Limited (Air-India) and
Asiana Airlines, Inc. (Asiana) filed requests in these Dockets for
authority that would enable them to conduct certain code-share services.
 United Airlines, Inc. (United) responded to those filings, stating that
it had filed a request with the Indian authorities seeking similar
authority to code-share on Asiana’s services between the United States
and India, via Seoul.  United further stated that India had approved its
code-share request through December 31, 2003, and added that it would
not oppose our granting the Air-India/Asiana requests, for a similar
term, through December 31.  On November 6, 2003, we approved in part,
and deferred in part, action on Air-India/Asiana requests. 
Specifically, we approved both requests through December 31, 2003, and
deferred action on the requests beyond that date.

On December 12 and December 15, 2003, respectively, Air-India and Asiana
filed applications to extend their code- share services beyond December
31, 2003.  Air-India noted that India’s DGAC had extended United’s
authority to code-share with Asiana until March 27, 2004, and added that
United authorized Air-India to represent that United would not object to
an extension of Air India’s exemption authority until March 27, 2004
(commensurate with United’s authority to code-share with Asiana).  On
December 23, 2003, we approved in part and deferred in part, action on
the requests.  We approved both request through March 27, 2004, and
deferred action on the requests beyond that date.

Current Requests:  On March 18, 2004, Air-India requested that we extend
its exemption authority for a term of one year.  On the same date,
Asiana requested that we extend its statement of authorization through
October 30, 2004 (commensurate with the term of authority it anticipated
that the Government of India would grant United to continue its
code-share services with Asiana).

Responsive Pleadings:  On March 23, United filed a consolidated answer
noting that it had previously received temporary approvals from the
Government of India to conduct code-share services between the U.S. and
India, via Korea with Asiana.  United stated that while it expected to
continue to receive seasonal approvals from the Government of India, it
has no objection to our granting the requests of Air-India and Asiana
for longer terms, consistent with Department practice.  United further
stated that any approvals of the instant requests be made with the
understanding that should the Government of India not be forthcoming
with United’s seasonal approvals, United reserves the right to request
that we withdraw code-share approvals awarded Air-India and Asiana.  

Revised Application:  On March 25, Asiana filed supplemental comments in
response to United’s consolidated answer.  Asiana stated that in light
of United’s position, Asiana was revising its application by asking
that we approve its request for an indefinite period.

Asiana subsequently advised us that it had polled the interested parties
and could confirm that no further comments would be filed.

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Applicant representative:  Marshall S. Sinick--(202) 626-6600
(Air-India)

			     Gregory S. Walden--(202) 457-6135 (Asiana)

DOT Analyst:  Gordon H. Bingham (202) 366-2404

	DISPOSITION

Action:  Approved 								Action date:  March 26, 2004

(We acted on these applications without awaiting expiration of the
prescribed answer period with the consent of all parties served with
both carriers’ requests)

With respect to United’s comments, we note that our actions here, as
stated below, are taken based on the understanding that we may amend,
modify, or revoke the authority granted in this Notice at any time
without hearing at our discretion.

Effective dates of the exemption authority granted Air-India---March 26,
2004-March 26, 2005

Effective dates of the statement of authorization granted
Asiana--Indefinite

Basis for approval (bilateral agreement/reciprocity):  1995 Memorandum
of Consultations between the United States and India (1995 MOC) and
U.S.-Korea Air Transport Agreement.

Except to the extent exempted/waived, this authority is subject to the
terms, conditions, and limitations indicated:

X  Air-India’s Foreign Air Carrier permit (Order 95-4-36), the 1995
MOC, and standard exemption conditions (attached) 

X  Asiana Foreign Air Carrier permit (Order 2000-11-10) and standard
exemption conditions (attached)

The code-share operations authorized here are subject to the following
conditions:

(a)  The statement of authorization will remain in effect only as long
as (i) Asiana and Air-India continue to hold the necessary underlying
authority to operate the code-share services at issue, and (ii) the
code-share agreement providing for the code-share operations remains in
effect.

(b)  Asiana and/or Air-India must promptly notify the Department if the
code-share agreement providing for the code-share operations is no
longer effective or the carriers decide to cease operating any or all of
the approved code-share services.  Such notices should be filed in
Dockets OST-2003-16314 and 16315.

(c)  The code-sharing operations conducted under this authority must
comply with 14 CFR Part 257 and with any amendments to the
Department’s regulations concerning code-share arrangements that may
be adopted.  Notwithstanding any provisions in the contract between the
carriers, our approval here is expressly conditioned upon the
requirements that the subject foreign air transportation be sold in the
name of the carrier holding out such service in computer reservation
systems and elsewhere; that the carrier selling such transportation
(i.e., the carrier shown on the ticket) accept responsibility for the
entirety of the code-share journey for all obligations established in
its contract of carriage with the passenger; and that the passenger
liability of the operating carrier be unaffected.

(d)  The authority granted here is specifically conditioned so that
neither carrier shall give any force or effect to any contractual
provisions between themselves that are contrary to these conditions.

(e)  We may amend, modify, or revoke the authority granted at any time
without hearing at our discretion.  

Action taken by:   Paul L. Gretch, Director	

		      Office of International Aviation	

________________________________________________________________________
________________________________________________________

Under authority assigned by the Department in its regulations, 14 CFR
Part 385, we found that (1) the applicant was qualified to perform the
proposed operations; (2) our action was consistent with Department
policy; (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 

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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 



											Attachment

Foreign Carrier Conditions

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.  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 Principal Security Inspector (PSI) to advise the PSI 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;

(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.

  Specifically, Air-India requested a one-year grant of its exemption
authority to engage in scheduled foreign air transportation of persons,
property and mail between points in India, on the one hand, and San
Francisco, Los Angeles, and Seattle, via Seoul, Korea (without
Seoul-U.S. traffic rights), on the other hand, pursuant to a code-share
agreement with Asiana.  Asiana requested an indefinite statement of
authorization to display Air-India’s designator code (“AI”) on
flights operated by Asiana between Seoul, Korea, on the one hand, and
Los Angeles, San Francisco, and Seattle, on the other hand.

  We expect this notification to be received within 10 days of such
non-effectiveness or of such decision.

