Order 2012

- 3

- 3

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C

.
Issued by the Department of Transportation

on the 6 th day of March , 2012

Served: March 6 , 2012

Application of

POLSKIE LINIE LOTNICZE LOT S.A. Docket DOT

- OST

- 2012

- 0017

for a n amended foreign air carrier permit under 49 U.S.C. §41301

ORDER TO SHOW CAUSE

Summary

By this order we tentatively find that it is in the public interest to grant the applicant the amended foreign air carrier permit attached as the Appendix to this order.

Background

By Notice dated May 3, 2007, we invited foreign air carriers of the European Union (EU) to apply for Department economic authority to conduct operations to and from the United States

under the U.S.

- EU Air Transport Agreement. In that Notice, we stated our intent to process requests for this authority under the “streamlining” procedures set out in our August 23, 2005

Notice in Docket OST

- 2005

- 22228, in which we announced several steps designed to simplify our regulatory procedures for licensing foreign (and U.S.) air carriers. Our action in this Order serves to implement those streamlined regulatory procedures for the applic ation involved in this proceeding.

Application

By application filed January 30, 2012

, Polskie Linie Lotnicze LOT S.A. (LOT ) , a foreign air

carrier of Poland

, requests a n amended foreign air carrier permit under 49 U.S.C. §41301, to engage in: 1

1 LOT’s existing foreign air carrier permit authorizes it to engage in: 1) scheduled foreign air transportation of persons, property, and mail between a point or points in Poland, via named intermediate points, and New York, Chicago, Miami, and Los Angeles; and 2) charter trips in foreign air transportation subject to the terms, conditions, and limitations of the Department’s regulations governing charters. ( See Order 95

- 2

- 33.) We note that in its January 30, 2012 application, LOT also requested that we grant it exemption authority to conduct the same EU

- U.S. services proposed in its amended foreign air carrier permit request. We granted the exemption portion of LOT’s request by Notice of Action Taken dated February 2, 2012, in Docket DOT

- OST

- 2012

- 0017

.2

a. foreign scheduled and charter air transportation of persons, property, and mail from any point or points behind any Member State of the European Union, via any point or points in any Member State and via intermediate points to any point or points in the United Sta tes and beyond;

b. foreign scheduled and charter air transportation of persons, property, and mail between any point or points in the United States and any point or points in any member of the European Common Aviation Area;

c. o ther charters pursuant to the prior approval requirements set forth in Part 212 of the Department’s r egulations ; and

d. transportation authorized by any additional route rights made available to European

Union carriers in the future.

The applicant provided evidentiary materials required by 14 CFR Part 211 of our regulations to support its request for authority.

No answers were filed to the application.

Tentative Findings and Conclusions

We tentatively find and conclude that the public interest warrants granting the applicant an amended foreign air carrier permit, in the form attached as the Appendix to this order, and subject to the conditions attached. 2

In particular, we tentatively find that grant of this authority is in the public interest; that th e applicant has demonstrated, based on the record, that it is financially and operationally fit to perform the services authorized; and that it is substantially owned and effectively controlled by

citizens of Member States of the European Union, consistent with the provisions of the U.S.

- EU Agreement

. 3 We also find that the authority sought by the applicant is encompassed by the

U.S.

- EU Agreement.

Further, we note that the applicant is properly licensed by its homeland to perform the proposed

services. In addition, on March 2, 2012 , the Federal Aviation Administration advised us that it knew of no reason why we should act unfavorably on the applicant’s request. We have verified the applicant’s compliance with 14 CFR Parts 203 (Warsaw liability waiver) , and 205 (insurance requirements).

In view of the foregoing and all facts of record, we tentatively find and conclude that:

1. It is in the public in terest to issue the applicant a n amended foreign air carrier permit in the form attached;

2 The applic ant’s request for an amended foreign air carrier permit was summarized in the Department’s published weekly list of applications filed. This notice described the authority sought and gave interested persons an opportunity to submit evidence and objections to the award of this foreign air carrier permit authority. As noted above, no answers were filed to the application.

3 We make this finding based on Article 2 (Reciprocal Recognition of Regulatory Determinations with Regard to

Airline Fitness and Citiz enship) of the Protocol to amend the U.S.

- EU Air Transport Agreement, signed June 24,

2010.3

2. The applicant is fit, willing and able properly to perform the foreign air transportation

described in the attached amended permit and to conform to the provisions of Title 49 of the U.S. Code, and to our rules, regulations, and requirements;

3. The applicant is substantially owned and effectively controlled in a manner consistent with the provisions of the U.S.

- EU Agreement ;

4. The public interest requires that the exercise o f the privileges granted by the amended permit should be subject to the te rms, conditions, and limitations contained in the attached amended permit, and to such other reasonable terms, conditions, and limitations required by the public interest as we may prescribe;

5. The issuance of this amended foreign air carrier permit wil l not constitute a major regulatory action under the Energy Policy and Conservation Act of 1975, as defined in 14 CFR §313.4(a)(1) of our regulations; 4

6. The public interest does not require an oral evidentiary hearing on the application; and

7. Our action with respect to this amended foreign air carrier permit should, unless disapproved by the President of the United States under §41307 of Title 49 of the U.S. Code, become effective on the 61st day after its submission for §41307 review, or u pon the date of receipt of advice from the President or his designee under Executive Order 12597 and implementing regulations that he or she does not intend to disapprove this portion of the Department’s decision under that section, whichever occurs earlie r.

In view of the above, and acting under authority assigned by the Department in its regulations, 14 CFR Part 385, we tentatively find that our actions are consistent with Department policy.

ACCORDINGLY,

1. We direct all interested persons to show cause why our tentative decision on the application

of Polskie Linie Lotnicze LOT S.A. for a n amended foreign air carrier permit , set forth above, should not be made final;

2. Any interested person objecting to the issuance of an order making final our t entative findings and conclusions with respect to the applicant’s request for a n amended foreign air carrier permit shall, no later than twenty

- one (21) calendar days after the date of service of this order, file with the Department and serve on the partie s to this proceeding, a statement of objections specifying the part or parts of the tentative findings and conclusions objected to, together with a summary of testimony, statistical data, and concrete evidence to be relied upon in support of the objections ; if objections are filed, answers to objections are due no later than seven (7) calendar days thereafter; 5

3. If timely and properly supported objections are filed, we will give further consideration to the matters and issues raised by the objections be fore we take further action;

4 This finding is based on the fact that the grant of this permit will not result in a near

- term net annual change in aircraft fuel consumption of 10 million ga llons or more.

5 Because we are providing for the filing of objections to our tentative decision in this order, we will not entertain petitions for review of this order.4

4. In the event no objections are filed, all further procedural steps shall be deemed waived, and the Department will enter an order which will (subject to Presidential review under §41307 of Title 49 of the U.S. Code) make fi nal our tentative findings and conclusions set forth in this order; and

5. We will serve a copy of this order on Polskie Linie Lotnicze LOT S.A.

, the Embassy of

Poland in Washington, D.C., the Department of State, and the Federal Aviation Administration.

By:

PAUL L. GRETCH

Director

Office of International Aviation

(SEAL)

Appendix An electronic version of this document is available on the World Wide Web at: http://www.regulations.govAppendix

Issued by

Order 20 1 2

-

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C.



### -------------------------------------------------------- PERMIT TO FOREIGN AIR CARRIER (as amended)



### -------------------------------------------------------- 

### Polskie Linie Lotnicze LOT S.A.

A Foreign Air Carrier of Poland

is authorized, subject to the following provisions, the provisions of Title 49 of the U.S. Code, and the orders, rules, and regulations of the Department of Transportation, to engage in:

F oreign scheduled and charter air transportation of persons, propert y, and mail from any point or points behind any Member State of the European Union, via any point or points in any Member State and via intermediate points to any point or points in the United States and beyond;

F oreign scheduled and charter air transport ation of persons, property, and mail between any point or points in the United States and any point or points in any member of the European Common Aviation Area;

O ther charters pursuant to the prior approval requirements set forth in Part 212 of the Depar tment’s regulations; and

T ransportation authorized by any additional route rights made available to European

Union carriers in the future; provided , that the holder shall, before it commences any new service under such additional route rights, provide the Department with evidence that it holds a homeland license for that new service (unless it has already provided such evidence to the Department). Such evidence shall be filed in Docket DOT

- OST

- 20 1 2

- 00 1 7

.

This permit and the exercise of the privileges granted in it shall be subject to the terms, conditions and limitations in both the order issuing this permit and the attachment to this order, and to all applicable provisions of any treaty, convention or agr eement affecting international air transportation now in effect, or that may become effective during the period this permit remains in effect, to which the United States and the holder’s homeland are or shall become parties.

This permit shall be effective on __________. Unless otherwise terminated at an earlier date pursuant to the terms of any applicable treaty, convention or agreement, this permit shall terminate (1) upon the dissolution or liquidation of the holder to whom it was issued; (2) upon2

the e ffective date of any treaty, convention, or agreement or amendment, which shall have the effect of eliminating the right for the service authorized by this permit from the service which may be operated by airlines of the European Union and its Member State s (or, if the right is partially eliminated, then the authority of this permit shall terminate in like part); or (3) upon the termination or expiration of the applicable air services agreement between the United States and the European Union and its Member States. However, clause (3) of this paragraph shall not apply if prior to such termination or expiration, the foreign air transportation authorized herein becomes the subject of another treaty, convention or agreement to which the United States and

the E uropean Union and its Member States become parties.

The Department of Transportation has executed this permit and affixed its seal on

_________.

By:

PAUL L. GRETCH

Director

Office of International Aviation



### (SEAL)Attachment

Foreign Air Carrier Permit Conditions

In the conduct of the operations authorized, the foreign carrier applicant 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, the Transportation Security Administration, and with all applicable U.S. Government requirements concerning secu rity, including, but not limited to, 14 CFR Parts 129, 91, and 36 and 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 Industry Representative (IIR) (formerly referred to as International Principal Security Inspector) to advi se the IIR 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 th e 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 War saw 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 c ourt 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

s topping 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 "inter national 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 D epartment, originate or terminate all flights to/from the United States in a Member State of the European Union;

(9) Comply with the requirements of 14 CFR Part 217, concerning the reporting of scheduled, nonscheduled, and charter data;

(10) If charter opera tions 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 limitati ons 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.

EU carrier 01/2008