UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C.

Issued by the Department of Transportation on January 21 , 201 1



### NOTICE OF ACTION TAKEN

-- DOCKET S DOT

- OST

- 2005

- 23461

________________________________________________________________________________________________ ________ This serves as notice to the public of the action described below, taken by the Department official indicated (no additional confirming order will be i ssued in this matter).

Applicant : VIRGIN NIGERIA A IRWAYS LIMITED D/B/A AIR NIGERIA (Air Nigeria)

Date Filed: December 13, 2010

Relief requested: E xemption from 49 USC § 41301 to the extent necessary to permit Air Nigeria to conduct operations using its own aircraft and crews for the purpose of transporting Delta Air Lines, Inc. (Delta) code

- share traffic on flights

between : 1) points in Nigeria and points in the United States; 2) points within Nigeria ; and 3) points in Nigeria and third

countries

. 1

A pplicant representative : Anita M. Mosner, 202

- 419

- 2604

DOT analyst: Robert J. Finamore, 202

- 366

- 2405

Responsive pleadings: None.

DISPOSITION

Action: Approved in part, subject to conditions (exemption authority to permit Air Nigeria to transport Delta code

share traffic on flights operated by Air Nigeria between points in Nigeria and between points in Nigeria and third countries), remainder ( exemption authority to permit Air Nigeria to trans port Delta code

- share traffic on flights operated by Air Nigeria between the United States and Nigeria) deferred. (See conditions and remarks below.)

Action date: January 21

, 2011

Effective dates of authority granted: January 21 , 201 1 , through Janua ry 21 , 201 3

.

Basis for approval (bil ateral agreement/reciprocity): United States

- Nigeria Air Transport Agreement

.

Except to the extent exempted/waived, this authority is subject to the terms, conditions, and limitations of our standard exemption conditions (attached), and to the otherwise

- applicable terms, conditions, and limitations of Air Nigeria’s foreign air carrier permit (Order 2008

- 7

- 1).

Special conditions/Remarks: Air Nigeria has advised the Department that it does not yet intend to op erate flights to the United States using its own aircraft and crews and therefore has not begun the process of obtaining the safety authority from the Federal Aviation Authority (FAA) that is required to conduct U.S. operations. 2

1 Air Nigeria has informally clarified for the Department that its request for exemption authority is intended to correspond to the pending portion of the Delta

- Air Nigeria joint application in Docket DOT

- OST

- 2010

- 0240

, for a statement of authorization to

p ermit Air Nigeria to carry Delta code

- share traffic on certain Air Nigeria flights . Air Nigeria requests that the Department grant that statement of authorization together with the present request for exemption authority. We are approving in part its pen ding
request for a statement of authorization in that Docket concurrently with our action here. Accordingly, we

will defe r action on t hat portion of the applicant’s request for exemption authority . However, we note that the FAA

2 Air Nigeria’s foreign air carrier permit limits it to wet

- lease operations with a duly authorized and properly supervised U.S. or foreign air carrier, or to operations through a code

- share arrangement with such a carrier, where Air Nigeria is not physically operating the flight. See Order 2008

- 7

- 1, issued April 28, 2008, in Dockets DOT

- OST

- 2005

- 23460 and DOT

- OST

- 2008

- 23461

.has a dvised the Department that is has reviewed the relevant code

- share audit report prepared by Delta under the

FAA’s Code

- Share Safety Audit Program and found the audit report to be acceptable. Therefore, we will grant the

remainder of Air Nigeria’s request to permit it to operate its own aircraft for the purpose of transporting Delta code

share traffic on flights operated by Air Nigeria betwe en: 1) points within Nigeri a; and 2) points in Nigeria and points in

third countries

.

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) our action was consistent w ith Department policy; (2) the applicant was qualified to perform its proposed operations; (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 an d 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 effec tive when taken, and the filing of a petition for review will not alter such effectiveness.

An electr onic version of this document is available on the World Wide Web at: http://www.regulations.gov

### 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 Fede ral 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 I IR of its plans and to find out whether the Transportation Security Administration has

determined that secu rity 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, i n 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 aircraf t 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 inte rnational 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; o r (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 Warsa w 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 homel and;

(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 th e 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.

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