UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

Issued by the Department of Transportation on May 14, 2014

NOTICE OF ACTION TAKEN – DOCKET DOT-OST-2014-0057 ______________________________________________________________________________________________________________________________

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).

Joint Applicants: US AIRWAYS, INC., (US Airways),1 PIEDMONT AIRLINES, Inc. (Piedmont), 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 

(TUIfly)

Date Filed: April 17, 2014 

Relief requested: Amendment of exemption under 49 USC §40109 to permit Niki, LGW, and TUIfly 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 Part 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 and TUIfly request statements of authorization for blanket codeshare authority to 

display US Airways’ “US” designator codes on flights operated by Air Berlin, Belair, Niki, LGW, and TUIfly

(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.

The Joint Applicants further request a waiver of the 45-day advance filing requirement under 14 CFR Part 212.

Applicant representatives: Howard Kass, Abigail Donovan, 202-326-5153, and Robert A. Wirick, 817-963-0394 (US 

Airways) & Evelyn D. Sahr and Drew M. Derco, 202-659-6622 (Air Berlin).

DOT analyst: Catherine C. Brown, 202-366-2390

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

and American share the same ultimate corporate parent, American Airlines Group, Inc. They state further that US Airways and 

American have elected to include US Airways in the already-existing 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 operates within Europe on 

behalf of Air Berlin. LGW and TUIfly 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 October 1, 2010, in Docket DOTOST-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 foreign air transportation of 

persons and property to the extent necessary to display both the “AA” and the “US” designator codes on flights 

within the EU and between the EU and third countries. 

Approved statements of authorization for Air Berlin and Belair 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 nonstop 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 TUIfly to display the “US” designator code on flights 

operated by Niki, LGW, and TUIfly (i) between EU points; and (ii) between any point or points in the EU and any point 

or points in third countries.

Remainder dismissed (statements 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, see below).

Action date: May 14, 2014

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

from May 14, 2014, through May 14, 2016. 

The statements of authorization granted to the joint applicants are effective May 14, 2014, and will remain in effect for an 

indefinite duration, subject to conditions. 

Our action 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 exempted/waived, 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: We note that Niki, LGW, and TUIfly 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 statements 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 has conducted safety audits of Air Berlin, Belair, Niki, LGW, and TUIfly under the 

Department’s Code-Share Safety Audit Program and the FAA has advised us that it has reviewed the relevant audit 

reports 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 with 

Department policy; (2) the applicants were qualified to perform their 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 and 

Conservation Act of 1975. To the extent not granted, we denied all requests in the referenced Dockets. 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

Foreign Air Carrier Exemption Conditions

In the conduct of the operations authorized, each 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 (AFS260), 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 a 

Member State of the European Union;

(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.

EU carrier 01/2008
Appendix B

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

(a) The statements of authorization will remain 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 code-share agreement providing for the code-share operations is no 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-2014-0057.

1

(c) US Airways, Piedmont, PSA, Air Berlin, Belair, Niki, LGW, and/or TUIfly must 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-share market added, and the 

date on which the service will begin. Such notices should be filed in Docket DOT-OST-2014-0057.

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 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 ticket) 

accept responsibility for the entirety of the code-share journey for 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 any 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 statements 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 selection 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 statements 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 proceeding 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 effect 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 notice 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 European 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.