UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C.

Issued by the Department of Transportation on September 30, 2 010



### NOTICE OF ACTION TAKEN

-- DOCKET D OT

- OST

- 20 10

- 0217

_____________________________________________________________________________________________________________________________ ___ 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 : 

### ANA WINGS CO., LTD. Date Filed: August 27, 2010

Relief requested

Exemption from 49 U.S.C. § 41301 to engage in scheduled foreign air transportation of persons, property and mail between any point or points in Japan, and any point or points in the United States, and to perform charters pursuant to

Part 212 of our rules.

Statement of Authorization under 14 CFR Part 212 to the extent necessary to permit ANA Wings to display th e designator code of United Air Lines, Inc. (United) and Continental Airlines, Inc. (Continental) on ANA Wings flights operated on a wet lease basis for All Nippon Airways Co., Ltd. (ANA) pursuant to ANA’s codesharing agreement with

United and Continental.

If renewal, date and citation of last action: New a uthority 1

Applicant representative: Charles J. Simpson, Jr. & David M. Endersbee (202) 973

- 7926 DOT Analyst: Shelita A. Johnson (20 2) 366

- 1226

Responsive pleadings: None filed

DISPOSITION

Action: Approved in part (exemption authority, and statement of authorization to code share with United), remainder (statement of authorization to code share with Continental) deferred 2

Actio n date : September 30, 2010

Effective dates of exemption and statement of authorization authority granted: September 30, 2010

– September 30, 2011

Basis for approval (bilateral agreement/reciprocity)

. 1998 Memorandum of Understanding between the Uni ted States and Japan (1998 MOU).

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 ( Order )

Special conditions/Partial grant/Denial basis/Remarks: Based on the record in this case, we found that ANA Wings is financially and operationally qualified to perform the services authorized above. In addition, we found that ANA Wings

is substant ially owned and effectively controlled by Japanese citizens. By memorandum dated September 13, 2010, the

1 In it application, ANA Wings states that, effective October 1, 2010, three subsidiaries of All Nippon Airways Co., Ltd.

- Air Central Co., Ltd. ; Air Next Co., Ltd. ; and Air Nippon Co., Ltd., will merge into Air N ippon Network, which will then change its name to ANA Wings. The authority at issue here will thus replace that currently held by the three subsidiaries in Dockets DOT

- 2005

- 20442, DOT

OST

- 2007

- 27316, and DOT

- OST

- 2002

- 13144.

2 The applicant has requested that we act initially on its request to code share only with United, pending the completion by Continental of its code share audit of the applicant.Federal Aviation Administration advised us that it knew of no reason why we should act unfavorably on the Applicant’s requests. 3

Action taken b y: Paul L. Gretch, Director

Office of International Aviation

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) ANA Wings and United con tinue 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) ANA Wings and United must promptly notify the Department if the code

- share agreement providing for the code

- share operations is no longer effective or the carriers decide to cease operating the approved code

- share services. Such notice should

be filed in Docket DOT

- OST

- 2010

- 0217. 4

(c) ANA Wings and United must noti fy 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 services will begin. Such notices shall be filed in Docket DOT

- OST

- 2010

- 0217.

d) The code

- sharing operations conducted under this authority must comply with 14 CFR 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 the computer reservation syste ms and elsewhere; that the carrier selling such transportation (i.e., the carrier shown on the ticket) accept responsibility for the entirety o f 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.

(e) The authority granted here is specifically conditioned so that neither ANA Wings nor United shall give any force or effect to any contractual provisions between themselves that are cont rary to these conditions.

(f) We may amend, modify, or revoke the authority granted at any time without hearing at our discretion.

_________________________________________________________________________________________________________________________ _______ 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 co nsistent 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 docu ment is available on the World Wide Web at: http://www.regulations.gov

3 United previously conducted safety audits of Air Central, Air Next, and Air Nippon (which, as noted abov e, have merged to form the applicant), under the FAA’s Code Share Safety Program., and the FAA reviewed the relevant audit reports and found them to be acceptable.

4 We expect this notification to be received within 10 days of such non

- effectiveness or of such decision.12/2008 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, the Transportation Security

Administrati on, 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 co ncerning 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) (for merly 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 Ad ministration’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 req uirements 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 carri age, 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 c ognizable 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 C ontracting 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, concernin g 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 a nd 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 applic able 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 a pproval under Title 49 of the U.S. Code.