 

			  UNITED STATES OF AMERICA

		        DEPARTMENT OF TRANSPORTATION

			  OFFICE OF THE SECRETARY

			          WASHINGTON, D.C.

Issued by the Department of Transportation on April 18, 2006

NOTICE OF ACTION TAKEN -- DOCKET OST-2006-24250

________________________________________________________________________
________________________________________________________

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:  Freedom Air Limited						Date Filed:  March 21, 2006

Relief requested:  Exemption from 49 U.S.C. § 41301 and statement of
authorization under 14 CFR Part 212 to permit Freedom Air to display the
designator codes of United Air Lines (United) and Air New Zealand
Limited (Air New Zealand) on flights operated by Freedom Air between New
Zealand, on the one hand, and a point or points in Australia, on the
other hand; and other countries in the South Pacific, pursuant to a
code-share arrangement with United and Air New Zealand.

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

Applicant representative: Susan Gotbetter  (212) 318-3121

                                                                     

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

Responsive pleadings:  None filed

DISPOSITION

Action: Approved						Action date:  April 18, 2006

Effective dates of exemption authority granted:  April 18, 2006 –
April 18, 2008

Effective dates of statement of authorization granted:  April 18, 2006 
– Indefinite subject to code-share conditions attached  

Basis for approval (bilateral agreement/reciprocity): U.S.-New Zealand
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)       

Special conditions/Partial grant/Denial basis/Remarks: Based on the
record in this case, we found that Freedom Air is financially and
operationally qualified to perform the services authorized above.  We
also found that Freedom Air is substantially owned and effectively
controlled by homeland nationals.  Freedom Air is a wholly-owned
subsidiary of Air New Zealand.  All of the members of Freedom Air’s
board of directors are citizens of New Zealand.  By memorandum dated
April 12, 2005, the Federal Aviation Administration (FAA) advised us
that it knew of no reason why we should act unfavorably on Freedom
Air’s application. 

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) Freedom Air, Air New Zealand and United 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)  Freedom Air, Air New Zealand and United 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-2006-24250.

(c)  Freedom Air, New Zealand and United 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-2006-24250.

(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.

  Freedom Air’s application was accompanied by a motion under Rule 12
(14 CFR § 302.12) to withhold certain financial information from public
disclosure.  In support of its motion, Freedom Air states that the
information is proprietary and commercially sensitive, and that Freedom
Air would be adversely affected by its disclosure.  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 Freedom Air under 49 U.S.C. § 40115.

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

05/2004

