UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

Issued by the Department of Transportation on June 26, 2012

NOTICE OF ACTION TAKEN -- DOCKET DOT-OST-2012-0089 ________________________________________________________________________________________________________

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: TAM-LINHAS AEREAS S.A. (TAM) Date Filed: June 7, 2012

Relief requested: Statement of authorization under 14 CFR Part 212 to permit TAM to engage in all-cargo block 

space/code-share services by displaying the (M3*) designator code of Aerolinhas Brasileiras S.A. (ABSA) on flights 

operated by TAM between Brazil and the United States for the carriage of freight only.

1

 

TAM requests that the statement of authorization be granted for an indefinite period and further requests waiver of the 

45-day advance filing requirement under 14 CFR Part 212.

Applicant representative: Robert P. Silverberg, 202-944-3304 DOT analyst: Robert J. Finamore, 202-366-2405

Responsive pleadings: US Airways, Inc. (US Airways) filed an objection to TAM’s request and TAM filed a reply. 

In its objection, US Airways states that in April 2011 it reached an agreement with Infraero, the Brazilian government 

agency responsible for operating Brazil’s Sao Paulo-Guarulhos airport (GRU), which would allow US Airways to 

begin GRU service in late 2012. US Airways also states that, in April 2012, Infraero informed the carrier that,

because GRU operations had been privatized, Infraero could no longer honor its agreement with US Airways and that 

no decision would be made regarding US Airways’ GRU service until the new airport operator took control of GRU 

operations. US Airways requests that the Department deny TAM’s request until US Airways can use its bilateral 

rights and begin its Sao Paulo service.

In its reply, TAM states that US Airways’ does not dispute that TAM and ABSA hold the necessary authority to 

conduct the proposed services or that the services are bilaterally authorized. TAM states that the objection is based 

entirely on the history of US Airways’ efforts to obtain an agreement with Infraero for facilities at Sao Paulo airport. It 

further states that not only would it be unfair to refuse to grant TAM's application based on the actions of an airport 

operator over which TAM has no control, but it would be inconsistent with the applicable bilateral agreement to do so. 

DISPOSITION

Action: Approved, subject to attached conditions Action date: June 26, 2012

Effective dates of authority granted: Our action granting the waiver request of TAM is effective June 26, 2012. Our 

action granting the statement of authorization request of TAM is effective June 26, 2012, and shall remain in effect for 

an indefinite period, subject to conditions.

Basis for approval (bilateral agreement/reciprocity): Air Transport Agreement between the United States and Brazil 

and the Memorandum of Consultations signed March 19, 2011.

Except to the extent exempted/waived, this authority is subject to the terms, conditions, and limitations of the code-share 

conditions attached as Appendix A.

Special conditions/Remarks: Having reviewed the full record before us, we have decided to approve TAM’s request for a 

statement of authorization to engage in all-cargo block space/code-share services with ABSA. In taking this action, we 

note that we are sensitive to the difficulties that US Airways is experiencing in its efforts to institute its Sao Paulo service. 

 1 See Appendix B for initial proposed markets.
However, in the circumstances presented, we are not prepared to withhold approval of the bilaterally authorized rights

requested by TAM. 

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 with 

Department policy; (2) grant of the authority was consistent with the public interest; and (3) 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:

http://www.regulations.gov
Appendix A

The operations authorized here are subject to the following conditions:

(a) The statement of authorization will remain in effect only as long as (i) TAM and ABSA continue to hold the 

necessary underlying authority to operate the code-share/blocked space services at issue, and (ii) the agreement 

providing for the code-share/blocked space operations remains in effect.

(b) TAM and/or ABSA must promptly notify the Department if the agreement providing for the code-share/blocked 

space operations is no longer effective or if the carriers decide to cease operating all or a portion of the approved 

code-share/blocked space services. Such notices should be filed in Docket DOT-OST-2012-0089.1

(c) TAM and/or ABSA must notify the Department no later than 30 days before they begin any new codeshare/blocked space operations under the services authorized here. Such notice shall identify the market(s) to be 

served and the date on which the service will begin. Such notice should be filed in Docket DOT-OST-2012-0089.

(d) 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 systems and elsewhere; that the carrier selling such transportation (i.e., the carrier 

shown on the waybill) accept responsibility for the entirety of the code-share/blocked space journey for all obligations 

established in its contract of carriage with the shipper; that the cargo liability of the operating carrier be unaffected.

(e) The authority granted here is specifically conditioned so that neither TAM nor ABSA 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.

 1 We expect this notification to be received within ten (10) days after such non-effectiveness or of such decision.
Appendix B