Order 2011-3-33

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

Issued by the Department of Transportation

on the 28th day of March, 2011

Served: March 28, 2011

Application of

SWISS INTERNATIONAL AIR LINES LTD.

(SWISS) 

Dockets DOT-OST-2010-0254

 

 

for an exemption under 49 U.S.C. §40109 and an 

amended foreign air carrier permit under 49 U.S.C. 

§41301 

ORDER GRANTING EXEMPTION AND TO SHOW CAUSE

Summary

By this order we (1) grant the application of the referenced foreign air carrier for an exemption 

under 49 U.S.C. §40109, subject to conditions;1and (2) tentatively find that it is in the public 

interest to grant the applicant an amended foreign air carrier permit attached as Appendix B to 

this order.

Background

On August 23, 2005, the Department issued a Notice, in Docket OST-2005-22228, announcing 

several steps designed to streamline our regulatory procedures for licensing U.S. and foreign air 

carriers. Among other things, the Notice stated that:

Assuming, based on the record and on the public interest/public convenience and 

necessity elements germane to our licensing decisions, that we were in a position to act 

favorably, we would proceed to issue a single order (1) granting the exemption request 

for whatever duration we would normally have imposed, or until certificate/permit 

authority becomes effective, whichever is shorter, and (2) tentatively deciding (i.e., 

show-cause) to award a corresponding certificate (or permit), again for the standard 

duration we would normally have imposed (such as, in the case of certificates, five 

years for limited-entry markets, indefinite for open-entry markets, and in the case of 

 

1 The conditions are attached at Appendix A.
2

permits, five years for comity and reciprocity regimes, indefinite for agreement 

regimes).

Our action in this Order serves to implement these streamlined regulatory procedures for the 

application involved in this proceeding.

Application

By application filed October 8, 2010, Swiss International Air Lines Ltd., a foreign air carrier of 

Switzerland, requests an exemption under 49 U.S.C. § 40109, and an amended foreign air carrier 

permit under 49 U.S.C. §41301, to engage in the following services:

a. Scheduled and charter foreign air transportation of persons, property and mail from any point 

or points behind Switzerland via Switzerland and intermediate points to any point or points in 

the United States and beyond;

b. Scheduled and charter all-cargo services between the United States and any point or points;

 and

c. Other charters pursuant to prior approval requirements under 14 CFR Part 212 of the 

Department’s Regulations.2

The applicant provided evidentiary materials required by 14 CFR Part 211 of our regulations to 

support its requests for authority.

No answers were filed to this application.

Decision

We have decided, under assigned authority and consistent with our August 23, 2005 Notice 

referenced above, to grant the applicant’s request for exemption authority, subject to conditions, 

and tentatively to grant, subject to show-cause procedures, its request for an amended foreign air 

carrier permit, also subject to conditions.

With respect to the applicant’s request for exemption authority, we find that grant of this

authority is consistent with the public interest. We also find that the applicant has demonstrated 

based on the record that it is financially and operationally qualified to perform the services 

authorized above, and that it is substantially owned and effectively controlled consistent with the 

provisions of the U.S.-Switzerland Air Transport Agreement of June 21, 2010.3

The authority sought by the applicant is encompassed by the Air Transport Agreement between 

the United States and Switzerland. We therefore find that grant of the requested exemption 

 

2

Swiss’s current foreign air carrier permit, issued by Order 2003-12-8, in Docket DOT-OST-2002-11535 on 

December 8, 2003, authorizes Swiss to engage in scheduled foreign air transportation of persons, property and mail 

from points behind Switzerland via Switzerland and intermediate points to a point or points in the United States and 

beyond, and to engage in charter trips subject to the Department’s charter regulations.

3 The record indicates that Swiss is ultimately wholly owned by Deutsche Lufthansa AG. Our ownership and 

control finding is consistent with the provisions of Article 3 of the U.S.-Switzerland Agreement.
3

authority, for a two-year term, or until the requested permit authority becomes effective, 

whichever occurs earlier, is warranted.

We also note that the applicant is properly licensed by its homeland to perform the proposed 

services. In addition, by memorandum dated October 21, 2010, the Federal Aviation 

Administration advised us that it knew of no reason why we should act unfavorably on the 

applicant’s requests. We have verified the applicant’s compliance with 14 CFR Parts 203 

(Warsaw liability waiver), and 205 (insurance requirements).

Tentative Findings and Conclusions--Foreign Air Carrier Permit Application

We tentatively find and conclude that the public interest warrants granting the applicant an 

amended foreign air carrier permit, in the form attached as Appendix B and subject to the 

conditions attached.4 In particular, we tentatively find and conclude that the factors which 

support our grant of exemption authority to the applicant also warrant granting the applicant the 

amended foreign air carrier permit it seeks.

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

1. It is in the public interest to issue the applicant an amended foreign air carrier permit in the 

form attached;

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

described in the attached 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 consistent with the provisions 

of the U.S.-Switzerland Air Transport Agreement;

4. The public interest requires that the exercise of the privileges granted by the permit should be 

subject to the terms, conditions, and limitations contained in the attached permit, and to such 

other reasonable terms, conditions, and limitations required by the public interest as we may 

prescribe;

5. The issuance of this foreign air carrier permit will 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;5

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 upon the date of receipt of 

 

4 The applicant’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 to the application were filed.

5 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 gallons or more.
4

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 earlier.

In view of the above, and acting under authority assigned by the Department in its regulations, 

14 CFR Part 385, we find that (1) our actions are consistent with Department policy; and (2) with 

respect to the exemption authority we are conferring on the applicant, the applicant is qualified to 

perform those operations; and that grant of the exemption authority is consistent with the public 

interest and would not constitute a major regulatory action under the Energy Policy and 

Conservation Act of 1975. 

ACCORDINGLY,

1. We grant the request of Swiss International Air Lines Ltd, for an exemption under 49 U.S.C. 

§ 40109 to permit it to engage in the following services:

a. Scheduled and charter foreign air transportation of persons, property and mail from any 

point or points behind Switzerland via Switzerland and intermediate points to any point or 

points in the United States and beyond;

b. Scheduled and charter all-cargo services between the United States and any point or points;

 and

c. Other charters pursuant to prior approval requirements under 14 CFR Part 212 of the 

 Department’s Regulations.

2. The exercise of the privileges granted above is subject to compliance by Swiss International 

Air Lines Ltd; with the conditions listed in Appendix A;

3. Our action granting the exemption authority described herein is effective immediately, for a 

period of two years from the issue date of this order, or until the attached permit becomes 

effective, whichever is earlier;

4. We may amend, modify, or revoke the exemption authority set forth herein at our discretion 

at any time and without hearing;

5. To the extent not acted upon above, we dismiss the applicant’s request for exemption 

authority in this docket (DOT-OST-2010-0254);

6. With respect to the applicant’s request for an amended foreign air carrier permit in this 

proceeding, we direct all interested persons to show cause why our tentative decision on that 

application, set forth above, should not be made final;

7. Any interested person objecting to the issuance of an order making final our tentative findings 

and conclusions with respect to the applicant’s request for an 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 parties 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 
5

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;

8. If timely and properly supported objections are filed, we will give further consideration to the 

matters and issues raised by the objections before we take further action;

9. 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 final our tentative findings and conclusions set forth in this 

order; and

10. We will serve a copy of this order on the applicant, the Embassy of Switzerland in 

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

Persons entitled to petition the Department for review of this order under the Department’s 

regulations, 14 CFR §385.30, may file their petitions within seven (7) days after the date of 

issuance of this order. Our action with respect to the applicant’s request for exemption authority 

under 49 U.S.C. §40109 is effective immediately, and the filing of a petition for review will not 

alter such effectiveness.

By:

PAUL L. GRETCH

Director

Office of International Aviation

(SEAL)

Appendices

An electronic version of this document is available on the World Wide Web at:

http://www.regulations,gov
Foreign Air Carrier Exemption Conditions Appendix A

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 security, 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 advise 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 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.

12/2007
Appendix B

Issued by

Order 

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

--------------------------------------------------------

PERMIT TO FOREIGN AIR CARRIER

(as amended)

---------------------------------------------------------

SWISS INTERNATIONAL AIR LINES LTD.

A Foreign Air Carrier of Switzerland 

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:

a. Scheduled and charter foreign air transportation of persons, property and mail from any point or 

points behind Switzerland via Switzerland and intermediate points to any point or points in the 

United States and beyond;

b. Scheduled and charter all-cargo services between the United States and any point or points; and

c. Other charters pursuant to prior approval requirements under 14 CFR Part 212 of the Department’s 

Regulations. 

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 agreement 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) upon the effective date of any treaty, 

convention, or agreement or amendment, which shall have the effect of eliminating the bilateral right for 

the service authorized by this permit from the service which may be operated by airlines designated by the 

Government of Switzerland (or, if the right is partially eliminated, then the authority of this permit shall 

terminate in like part); (3) upon the effective date of any permit granted by the Department to any other 

carrier designated by the Government of Switzerland in lieu of the holder; or (4) upon the termination or 

expiration of the applicable air services agreement between the United States and Switzerland. However, 

clause (4) 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 Switzerland 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)
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 security, 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 advise 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 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.

12/2007