CORRECTED COPY

 

			  UNITED STATES OF AMERICA

		        DEPARTMENT OF TRANSPORTATION

			  OFFICE OF THE SECRETARY

			          WASHINGTON, D.C.

Issued by the Department of Transportation on December 13, 2005

NOTICE OF ACTION TAKEN -- DOCKET OST-2005-22725

________________________________________________________________________
________________________________________________________

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: Swiss European Air Lines Ltd. d/b/a Swiss European		Date
Filed:  October 13, 2005

Relief requested:  

Exemption from 49 U.S.C. § 41301 to transport persons, property and
mail by displaying the airline designator codes of United Air Lines,
Inc. (United) and American Airlines, Inc. (American) on flights operated
by Swiss Too on behalf of Swiss International Air Lines (Swiss) between
points in Switzerland and between points in Switzerland and points in
third countries.

Statement of authorization under 14 CFR Part 212 to the extent necessary
to place the designator codes of United Air Lines, Inc. (United) and
American Airlines, Inc. (American) on flights it operates on behalf of
Swiss International Air Lines (Swiss).   Swiss Too proposes to operate
these operations between points in Switzerland and between points in
Switzerland and points in third countries.

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

Applicant representatives:  Evelyn D. Sahr & James G. Ehrig  (202)
289-0500

                                                                    

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

Responsive pleadings:  None filed

DISPOSITION

Action:  Approved in part (to code-share with American), remainder
deferred (to code-share with United); see below

Action date:  December 13, 2005

Effective dates of exemption authority granted: December 13, 2005 –
December 13, 2007

Effective dates of statement of authorization granted:  December 13,
2005 – Indefinite, subject to code-share conditions attached.

Basis for approval (bilateral agreement/reciprocity): The authority is
provided for in the U.S.-Switzerland Air Transport Agreement

 

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

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

Special conditions/Partial grant/ Remarks:  Based on the record in this
case, we found that Swiss Too is financially and operationally qualified
to perform the services authorized above.  We also note that Swiss Too
is wholly owned and controlled by Swiss International Air Lines Ltd.
(Swiss).  All of Swiss Too’s directors and key management officials
are citizens of Switzerland.  By memorandum dated December 7, 2005, the
Federal Aviation Administration (FAA) advised us that it knew of no
reason why we should act unfavorably on Swiss Too’s application.

We are deferring action on that portion of the request that would allow
Swiss Too to carry the designator code of United, pending further advice
from the FAA concerning United’s audit of Swiss Too under the DOT/FAA
Code-share Safety Program Guidelines.

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) Swiss Too and/or American 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)  Swiss Too and American 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 Docket OST-2005-22725.

(c)  Swiss Too and American 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 Docket OST-2005-22725.

(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 for 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 

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.

 Swiss Too states that Swiss is in the process of ending its
code-sharing arrangement with American and commencing its arrangement
with United, and that Swiss Too proposes, for a finite period of time,
to operate codeshare service with both carriers.

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

05/2004

