 

			  UNITED STATES OF AMERICA

		        DEPARTMENT OF TRANSPORTATION

			  OFFICE OF THE SECRETARY

			          WASHINGTON, D.C.

Issued by the Department of Transportation on November 25, 2003

NOTICE OF ACTION TAKEN -- DOCKET OST-2003-16316

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__________________________________________

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:  Hapag-Lloyd Express GmbH.				Date Filed:  October 10, 2003

Relief requested: Exemption from 49 U.S.C. § 41301 to engage in charter
foreign air transportation of persons, property and mail (1) between any
point or points in Germany and any point or points in the United States;


(2) between any point or points in the United States and any point or
points in a third country or countries, provided that, except with
respect to cargo charters, such service constitutes part of a continuous
operation, with or without a change of aircraft, that includes service
to Germany for the purpose of carrying local traffic between Germany and
the United States; and (3) other charters in accordance with Part 212 of
the Department’s rules.  Hapag-Lloyd states that its services will be
provided with small aircraft.

If renewal, date and citation of last action:  New authority

Applicant representative:  Gary B. Garofalo (202) 776-3970

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

Responsive pleadings:  None filed

	DISPOSITION

Action:  Approved							Action date:  November 25, 2003 

Effective dates of authority granted:  November 25, 2003-November 25,
2005.

Basis for approval (bilateral agreement/reciprocity):  Air Transport
Agreement between the United States and Germany

Except to the extent exempted/waived, this authority is subject to the
terms, conditions, and limitations indicated:  X  Standard exemption
conditions (Attached)

Special conditions/Partial grant/Denial basis/Remarks:  Based on the
record in this case, we found that Hapag-Lloyd is operationally
qualified to perform the services authorized above.  As to its financial
qualifications, Hapag-Lloyd has provided financial information which
indicates that it can conduct the proposed services without jeopardizing
passenger or shipper funds.  We also found that Hapag-Lloyd is
substantially owned and effectively controlled by citizens of Germany. 
In addition, all of Hapag-Lloyd’s officers and key management
personnel are citizens of Germany.  By memorandum dated November 24,
2003, the FAA advised us that it knows of no reason why we should act
unfavorably on Hapag-Lloyd’s application.

In the conduct of the service authorized above, Hapag-Lloyd Express
shall use only small aircraft (i.e., aircraft designed to have a maximum
passenger capacity of not more than 60 seats or a maximum payload
capacity of not more than 18,000 pounds).

2

Action taken by:  Paul L. Gretch, Director	

		     Office of International Aviation	

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__________________________________________

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 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.

  Hapag-Lloyd’s application was accompanied by a motion under Rule 12
(14 CFR § 302.12) to withhold certain financial information from public
disclosure.  Hapag-Lloyd states that it is a privately held German
company, and as such, is not required by its government to disclose such
information.  Hapag-Lloyd states that disclosure of such information
would adversely affect Hapag-Lloyd’s competitive interest vis a vis
its commercial competitors and is not required by the public interest. 
We have reviewed the documents under the disclosure guidelines of Rule
12 and have determined that they warrant confidential treatment. 
Because of the commercially sensitive nature of the information, we have
determined that the documents fall within the Freedom of Information Act
exemption for proprietary information and would adversely affect the
competitive position of Hapag-Lloyd under 49 U.S.C. § 40115.

  Hapag-Lloyd is a wholly owned subsidiary of TUI AG, a German
corporation.  

