 

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, DC

Issued by the Department of Transportation on October 12, 2004

   NOTICE OF ACTION TAKEN -- DOCKET OST-2004-18184           

________________________________________________________________________
_________________________________

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).

Joint Application of   Delta Air Lines, Inc. (Delta) and Aerovias de
Mexico, S.A. de C.V. (Aeromexico) filed   6/14/04 and supplemented
9/14/04 and 9/23/04 for:

XX  Exemption for Aeromexico for one year under 49 U.S.C. 40109 to
provide the following service:

Scheduled foreign air transportation of persons, property, and mail
between Salt Lake City, Utah, and Cancun, Mexico.  Aeromexico intends to
provide this service by placing its code on flights operated by Delta
Air Lines.

XX  Statement of authorization for Delta, for indefinite duration under
CFR Part 212 to:

Display Aeromexico’s “AM” designator code on flights operated by
Delta between Salt Lake City, Utah, and Cancun, Mexico. 

Applicant reps: Alexander Van der Bellen, (202) 663-8060 (Delta)  DOT
Analyst: Thuy H. Cooper, 

           William C. Evans (202) 861-6459 (Aeromexico)  		     
202-366-5423

D I S P O S I T I O N

XX  Granted exemption authority to Aeromexico (subject to conditions,
see below)

XX  Granted statement of authorization to Delta (subject to conditions,
see below)

The above action granting exemption authority to Aeromexico was
effective when taken: October 12, 2004, through  October 12, 2006.

The above action granting a statement of authorization to Delta was
effective when taken: October 12, 2004, and will remain in effect
indefinitely, subject to the conditions below.

Action taken by:   Paul L. Gretch, Director	

		    Office of International Aviation

XX  The authority granted is consistent with the aviation agreement
between the United States and Mexico.

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

   

XX Delta’s certificates of public convenience and necessity 

XX Aeromexico’s foreign air carrier permit 

XX Standard exemption conditions (attached)  

Conditions:  The exemption authority granted to Aeromexico to serve the
Salt Lake City-Cancun market is limited to operations conducted on a
code-share basis only.  

The Statement of Authorization granted to Delta is subject to the
following conditions:

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

(b) Delta and/or Aeromexico must promptly notify the Department (Office
of International Aviation) if the code-share agreement is no longer
effective or if the carriers decide to cease operating all or a portion
of the approved code-share services.’ (Such notice should be filed in
Docket OST-2004-18184.)

(c) The code-sharing operations conducted under this authority must
comply with 14 CFR 257 and with any amendment 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 Delta nor Aeromexico shall give any force or effect to any
contractual provisions between themselves that are contrary to these
conditions.

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On the basis of data officially noticeable under Rule 24(g) of the
Department's regulations, we found Delta qualified to provide the
exemption services authorized.

Under authority assigned by the Department in its regulations, 14 CFR
Part 385, we found that (1) our action was consistent with Department
policy; (2) grant of the authority was consistent with the public
interest; and (3) 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, 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 

 

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.

5/04

 The supplementary submissions provided documentation to reflect that
Aeromexico holds the requisite authority from the Government of Mexico
to conduct the services proposed here.

 The joint applicants had also requested exemption authority for Delta
to operate the Salt Lake City-Cancun service.  By Notice of Action Taken
dated June 29, 2004, the Department granted that exemption authority to
Delta.  However, we deferred action on the carriers’ requests for
exemption authority for Aeromexico and for a statement of authorization
for Delta to provide code-share services in the Salt Lake City-Cancun
market, pending notification that Aeromexico holds the requisite
underlying authority from the Government of Mexico to provide the
proposed services.   That notification has now been received. 

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

