 

			  UNITED STATES OF AMERICA

		        DEPARTMENT OF TRANSPORTATION

			  OFFICE OF THE SECRETARY

			          WASHINGTON, D.C.

Issued by the Department of Transportation on July 29, 2004

NOTICE OF ACTION TAKEN -- DOCKETS OST-2004-18178 & OST-2004-18177

________________________________________________________________________
________________________________________________________

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:  Virgin Atlantic Airways Limited & America West Airlines,
Inc.	Date Filed: June 14, 2004 

Relief requested:

Virgin Atlantic Airways, Limited (Docket OST-2004-18178) – Exemption
from 49 U.S.C. § 41301 to engage in scheduled foreign air
transportation of persons, property and mail between any point or points
in the United Kingdom, and a point or points in the United States, via
Virgin Atlantic’s authorized U.S. gateways, directly or via
intermediate points, and beyond the U.S. to any point or points in third
countries, pursuant to a code-share arrangement with America West
Airlines, Inc. a U.S. certificated air carrier.

America West Airlines, Inc. (Docket OST-2004-18177) - Statement of
authorization under 14 CFR Part 212 to the extent necessary to permit
America West Airlines, Inc. (America West) to display the designator
code of Virgin Atlantic Airways, Limited (Virgin Atlantic) (“VS”) on
flights operated by America West between points in the United States.

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

Applicant representatives:  Anita M. Mosner (703)-294-5890 & Joanne W.
Young (202) 861-1532

DOT Analyst:  Shelita A. Smith—(202) 366-1226

Responsive pleadings: None filed

DISPOSITION

Action:  Approved								Action date: July 29, 2004 

Effective dates of exemption authority granted Virgin Atlantic:  July
29, 2004 – July 29, 2006

Effective dates of the statement of authorization granted America West: 
July 29, 2004 – July 29, 2006

Basis for approval (bilateral agreement/reciprocity):  U.S.-U.K.
Aviation Agreement

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

X  Standard exemption conditions (Virgin Atlantic Attachment A)  X
Virgin Atlantic’s Foreign Air Carrier Permit

(Order 98-2-30) 

Special conditions/Partial grant/Denial basis/Remarks:  

The statement of authorization granted to America West is subject to the
following conditions:

(a)  The statement of authorization will remain in effect only as long
as (i) America West and/or Virgin Atlantic 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)  America West and/or Virgin Atlantic must promptly notify the
Department (Office of International Aviation) 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-2004-18177/18178.

2

(c)  America West and/or Virgin Atlantic must notify the Department no
later than 30 days before they begin any new code-share service under
the code-share services authorized here.  Such notice shall identify the
market(s) to be served and the date on which the service will begin. 
Such notices should be filed in Dockets OST-2004-18177/18178.

(d)  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.  Further, the
operating carrier shall not permit the code of its U.S. carrier
code-sharing partner to be carried on any flight that enters, departs or
transits the airspace of any area whose airspace the Federal Aviation
Administration has issued a flight prohibition.

(e)  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.

(f)  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 is 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 A

Foreign Carrier Exemption 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, including, but not limited to, 49 CFR Part 1546 or 1550, as
applicable.  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 International Principal Security Inspector (IPSI) to advise
the IPSI 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.

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

05/2004

