UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C.

Issued by the Department of Transportation on May 14

, 20 1 4


### N OTICE OF ACTION TAKEN

– DOCKET DOT

- O ST

- 20 1 4

- 0057

__________________________________________________ ____________________________________________________________________________ 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).

Join t Applicant s : US AIRWAYS, INC., (US A irways ), 1 PIEDMONT AIRLINES , Inc. (P iedmont ), PSA AIRLINES

, Inc. (PSA)

, AIR BERLIN PLC & CO. LUFTVERKEHRS KG (Air Berlin), BELAIR AIRLINES LTD., (Belair), NIKI LUFTFAHRT GMBH (Niki), LUFTFAHRTGESELLSCHAFT WALTER GMBH ( LGW), TUIFLY GMBH (T UI fly)

Date Filed: April 17, 201 4

Relief requested: Amendment of e xemption under 49 USC §40109 to permit Niki, LGW, and T U I fly to engage in foreign air transportation of persons and property to the extent necessary to display both the “ AA ” designator code of American Airlines, Inc. ( American) and the “ US ” designator code of US Airways on flights within the EU and between the EU and

third countries

. 2

The joint applicants also request statements of authorization under 14 CFR Par t 212, as follows:

A. US Airways and PSA request statements of authorization for blanket

- codeshare authority to display Air Berlin’s

“AB” designator code on flights operated by US Airways and PSA (i) between any point or points in the United States and any point or points in the EU (either non

- stop or via third country intermediate points); (ii) between any point or points in the EU and any point or points in third countries; (iii) between U.S. points; and (iv) between any point or points in the U.S. and any point or points in third countries

.

B. Piedmont requests a statement of authorization for blanket codeshare authority to display Air Berlin’s “AB” designator code on flights it operates between points in the United States.

C. Air Berlin, Belair, Niki, LGW a nd T U I fly request statement s of authorization for blanket codeshare authority to display US Airways ’ “US” designator codes on flights operated by Air Berlin, Belair, Niki, LGW, and TU I fly (i) between any point or points in the United States and any point or points in the EU (either non

- stop or via third country intermediate points); (ii) between any point or points in the United States and any point or points in third countries; (iii) between EU points; and (iv) between any point or points in the EU and an y point or points in third

countries

.

The Joint Applicants further request a waiver of the 45

- day advance filing requirement under 14 CFR Part 212.

Applicant representative s : Howard Kass

, Abigail Donovan , 202

- 326

- 5153

, and Robert A. Wirick, 817

- 963

- 0394 (US Airways) & Evelyn D. Sahr and Drew M. Derco , 202

- 659

- 6 622 ( Air Berlin ).

DOT analyst: Catherine C. Brown , 202

- 366

- 2390

1 The joint applicants state that, f ollowing the merger of U S Airways Group, Inc. and AMR Corp. on December 9, 2013 , US Airways

and American share the same ultimate co r porate parent, American Airlines Group, Inc. They state further that US Airways and American have elected to include US Airways in the already

- exist ing American

- Air Berlin codeshare arrangement in order to ensure a consistent relationship between Air Berlin and both US Airways and American.

2 Niki currently holds exemption authority to display the designator code of American on all flights it operat es within Europe on

behalf of Air Berlin. LGW and TU I fly currently hold exemption authority to display the designator code of American on all flights each carrier operates within Europe as wet

- lessors of Air Berlin. See Notice of Action Taken dated Octob er 1, 2010, in Docket DOT

OST

- 2010

- 0192, DOT

- OST

- 2010

- 0207, DOT

- OST

- 2010

- 0221, DOT

- OST

- 2010

- 0201, and DOT

- OST

- 2010

- 0220.Responsive pleadings: None

DISPOSITION

Action: Approved amended exemption authority to Niki, LGW, and TUIfly 

### to engage in fo reign air transportation of persons and property to the extent necessary to display both the “AA” and the “US” designator code s on flights

within the EU and between the EU and third countries.

Approved statements of authorization for Air Berlin and Belai r to display the “US” designator code on flights operated by Air Berlin and Belair (i) between any point or points in the United States and any point or points in the EU (either non

stop or via third country intermediate points); (ii) between any point or points in the United States and any point or points

in third countries ; (iii) between EU points; and (iv) between any point or points in the EU and any point or points in third

countries.

Approved in part statements of authorization for Niki, LGW, and TUI fly to display the “US” designator code on flights operated by Niki, LGW, and TUIfly (i) between EU points; and (i i ) between any point or points in the EU and any point or points in third countries.

R emainder dismissed ( statement s of authorization for Niki, LGW, and TUIfly to display the “ US ” designator code on flights operated by Niki, LGW, and TUIfly to or from the United States

, s ee below ).

Action date: May 14

, 20 1 4

Effecti ve dates of authority granted: The amended exemption authority granted to Niki, LGW, and TUIfly is effective

from May 14 , 20 1 4

, through May 14 , 2016

.

The statement s of authorization granted to the joint applicants are effective May 14 , 20 1 4 , and will remain in effect for an

indefinite duration , subject to conditions

.

Our act ion granting the joint applicants’ request for waiver of the 45

- day advance filing requirement under 14 CFR Part

212 is effective May 14 , 2014.

Basis for approval (bilateral agreement/reciprocity): U.S.

- EU Air Transport Agreement.

Except to the extent exe mpted/waive d , this authority is subject to the terms, conditions, and limitations of our standard foreign air carrier exemption conditions attached as Appendix A and codeshare conditions attached as Appendix B

.
Special conditions/Remarks: W e note that Ni ki, LGW, and T U Ifly do not hold DOT authority to operate to and from the

United States with their own aircraft and crew. Accordingly, we are dismissing the portion of Niki, LGW, and TUIfly’s request for statement s of authorization to transport US Airways codeshare passengers on flights operated by Niki, LGW, and TUIfly to and from the United States.

We also note that US Airways ha s conducted safety audit s of Air Berlin, Belair, Niki, LGW, and T U Ifly under the Department’s Code

- Share Safety Audit Program and the FAA has advised us that it has reviewed the relevant audit
report s and found them to be acceptable.

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 s were qualified to perform their proposed operati ons; (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 Poli cy and Conservation Act of 1975. To the extent not granted, we denied all requests in the referenced Docket s . 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 Departm ent’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 ve rsion of this document is available on the World Wide Web at: http://www.regulations.govAppendix A



### F oreign Air Carrier Exemption Conditions

In the conduct of the operations authorized, each foreign carrier app licant 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 assu re 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

Sta tes, 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 for m 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 a uthority 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 specifi cally 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 sovere ign 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 a Member State of the European Union;

(9) Compl y 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 r ules 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 o f 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 o r otherwise transferred without explicit Department approval under Title

49 of the U.S. Code.

EU carrier 01/2008Appendix B

The code

- share operations authorized here are subject to the following conditions:

(a) The statement s of authorization will rema in in effect only as long as (i) US Airways, Piedmont, PSA, Air Berlin, Belair, Niki, LGW, and TUIfly continue 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) US Airways, Piedmont, PSA, Air Berlin, Belair, Niki , LGW, and /or TUIfly must promptly notify the Department (Office of International Aviation) if the c ode

- share agreement providing for the code

- share operations is n o longer effective or if the carriers decide to cease operating all or a portion of the approved code

- share services. Such notices

should be filed in Docket DOT

- OST

- 2014

- 00 57

. 1

(c) US Airways, Piedmont, PSA, Air Berlin, Belair, Niki, LGW, and /or TUIfly m ust notify 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, which carrier will be operating the aircraft in the code

- sha re market added, and the date on which the service will begin. Such notices should be filed in Docket DOT

- OST

- 2014

- 00 57

. 2

(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 sol d 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 ticket) accept responsibility for the entirety of the code

- share journey f or all obligations established in its contract of carriage with the passenger; that the passenger liability of the operating carrier be unaffected; and that the operating carrier shall not permit the code of its U.S. code

- sharing partner to be carried on a ny flight that enters, departs, or transits the airspace of any area for whose airspace the Federal Aviation Administration has issued a flight prohibition.

(e) Any service provided shall be consistent with the provisions of the U.S.

- EU agreement, and all applicable agreements with other foreign countries involved. Furthermore, (i) nothing in the award of the blanket statement s of authorization should be construed as conferring upon US Airways , Piedmont, or PSA rights (including code

- share, fifth

- freedom intermediate and/or beyond rights) to serve markets where U.S. carrier rights are limited unless US Airways, Piedmont,

and PSA notifies us of their intent to serve such market and unless and until the Department has completed any necessary carrier selectio n procedures to determine which carrier(s) should be authorized to exercise such rights; 3 and (ii) should there be a request by any carrier to use the limited

- entry route rights that are included in US Airways, Piedmont, or PSA’s authority by virtue of the blanket statement s of authorization granted here, but that are not being used by US Airways, Piedmont, or PSA , the holding of such authority will not be considered as providing any preference for US Airways, Piedmont, or PSA in a carrier selection proceed ing to determine which carrier(s) should be entitled to use the authority at issue

.

(f) The authority granted here is specifically conditioned so that neither US Airways, Piedmont, PSA nor Air Berlin, Belair, Niki, LGW and TuIfly shall give any force or e ffect to any contractual provisions between themselves that are contrary to these conditions.

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 10 days of such non

- effectiveness or of such decision.

2 The applicants provided no tice of their intent to engage in in reciprocal codeshare services i) between points in the United States and points in the EU (both nonstop and intermediate routings via open skies points); ii) between points in the United States and points in the Europea n Common Aviation Area where open skies applies; iii) between points in the United States; iv) between points in the EU; v) beyond the EU to open skies points; and vi) beyond the United States to open skies points.

3 The notice referenced in condition (c) above may be used for this notification.