 

			  UNITED STATES OF AMERICA

		        DEPARTMENT OF TRANSPORTATION

			  OFFICE OF THE SECRETARY

			          WASHINGTON, D.C.

Issued by the Department of Transportation on June 7, 2005

NOTICE OF ACTION TAKEN -- DOCKET OST-2005-20571

________________________________________________________________________
________________________________________________________

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:  Eurofly S.p.A.						Date Filed:  April 8, 2005

Relief requested:  Amend existing exemption authority (which authorizes
Eurofly to conduct certain scheduled Italy-U.S. operations) to the
extent necessary to conduct (1) passenger and cargo charters between any
point or points in the United States and any point or points not in the
United States, provided that, except with respect to cargo charters,
such service constitutes part of a continuous operation that carries
local traffic between Italy and the United States; and (2) other
charters in accordance with 14 CFR Part 212.  

If renewal, date and citation of last action: Amends authority granted
March 16, 2005, in this docket

Applicant representatives: Moffett B. Roller & Lee A. Bauer  (202)
331-3300 

                                                                    

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

Responsive pleadings:  American Airlines, Inc. (American) and United Air
Lines, Inc. (United) filed a joint answer seeking that Eurofly’s
request be deferred or dismissed without prejudice pending resolution of
the complaint brought by American and United against the Government of
Italy in Docket OST-2004-19790.  American and United state that the
Department should not authorize an Italian-flag carrier to expand its
services to or via the United States while U.S. carriers such as
American and United are being denied rights guaranteed under the
U.S.-Italy Agreement.  Eurofly filed a reply stating that it would be
contrary to the public interest for the Department to defer or dismiss
action on this request.  Eurofly states that such action, which would
restrict its rights under the U.S.-Italy Agreement, would be premature,
given that the Department has not yet made a determination on the merits
of the complaint, and that such an action would restrict Eurofly’s
ability to provide new competition in the U.S.-Italy market.

DISPOSITION

Action:  Approved							Action date:  June 7, 2005

Effective dates of authority granted:  June 7, 2005 – March 16, 2007
(coextensive with the authority granted Eurofly on March 16, 2005, in
this docket)

Basis for approval (bilateral agreement/reciprocity):  the U.S.-Italy
Air Services Agreement

Remarks:  As the record makes clear, the concerns raised by American and
United are at issue in a complaint proceeding pending in Docket
OST-2004-19790.  We regard that proceeding as the appropriate forum to
consider the joint American-United concerns.  The authority that Eurofly
seeks is expressly provided for in the U.S.-Italy Air Services
Agreement.  In the circumstances presented, we are not to inclined to
withhold the bilaterally authorized authority that Eurofly requests.  In
any event, as is our usual practice, we reserve the right to amend,
modify, or revoke the authority we are granting here at any time and
without hearing, should such action be warranted in public interest.

    X   Standard exemption conditions (attached)               Foreign
air carrier permit conditions (Order         )

Special conditions/Partial grant/Denial basis/Remarks:  

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 

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.

 In that complaint, American and United allege that Alitalia–Linee
Aeree Italiane-S.p.A. and the Government of Italy are violating the
terms of the U.S.-Italy Agreement in view of actions involving
code-share operations at Milan’s Linate Airport.  See Joint Compliant
of American and United in Docket OST-2004-19790.  We note that Eurofly
was not named in the complaint.

05/2004

