UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF THE SECRETARY WASHINGTON, D.C. Issued by the Department of Transportation on January 21 , 2011


### NOTICE OF ACTION TAKEN

– DOCKET DOT

- OST

- 20 10

- 0240

________________________________________________________________________________________________ ________ 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). Joint Application of: DELTA AIR LINES, INC. (Delta) and VIRGIN NIGERIA AIRWAYS LIMITED D/B/A AIR NIGERIA (Air Nigeria) 1

Date Filed: September 27 , 20 10 Relief requested: S tatements of authorization under 14 CFR Part 212 to permit t he joint a pplicants to engage in reciprocal cod e
- share services as follows:

**•** Between any point or points in the United States and any point or points in Nigeria (on a nonstop basis and intermediate routings via Open Skies points);

**•** Between U.S. points;

**•** Between points in Nigeria;

**•** Beyond Nigeria to any open

- skies point or points; and

**•** Beyond the United States to any open

- skies point or points.

A pplicant representative s : Alexander Van der Bellen, 202

- 842

- 4184 (Delta) and Anita M. Mosner, 202

- 41 9

- 2604 ( Air Nigeria) DOT analyst: Robert J. Finamore, 202

- 366

- 2405 Responsive pleadings: None filed.

DISPOSITION Action: Approved in part , subject to conditions (statement of authorization for Air Nigeria to transport Delta code

- share traffic on flights operated by Air Nigeria between points in Nigeria and beyond Nigeria to any open
- skies point or

1 Our present action approves a portion of Air Nigeria’s pending request in this Docket, on which the Department had previously deferred action, for a statement of authorization to permit Air Nigeria to display the (DL*) designator code of Delta on flights operated by Air Nigeria. See Notice of Action Taken dated December 3, 2010, in this Docket. We will act separately on the remaining portion of Air Ni geria’s pending request for a statement of authorization to place the Delta designator code on flights operated by Air Nigeri a between the United States and Nigeria.points ) , remainder (statement of authorization for Air Nigeria to transport Delta code

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

. )

Action date: January 21 , 2011 Effective dates of authority granted: The statement of authorization granted to Air Nigeria is effective January 21 , 201 1 , and shall remain in effect for an indefinite period , subject to conditions

. 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, a nd limitations of the conditions noted immediately below and the attached code

- share conditions

. Special conditions/Remarks: At the time the joint applicants ini tially filed their application, Air Nigeria d id not hold the underlying authority from the Department necessary to engage in its proposed code

- share operations carry ing Delta passengers. 2 In addition, the joint applicants state d that Delta was still in the process of conducting a code

- share safety audit of Air Nigeria. Accordingly, w e granted the request of the joint applicants for a statement of authorization for Delta and deferred action on their request for a statement of authorization for Air Nigeria until Air Nigeria obtained the necessary underlying authority from the Department to carry Delta passengers and the FAA advised the Department that it has reviewed Delta’s code

- share safety audit of Air Nigeria and found the audit report to be acceptable

. Air Nigeria subsequently applied in Docket DOT

- OST

- 2005

- 23461 for an exemption from 49 U. S.C. §41301 to the extent necessary to permit Air Nigeria to operate its own aircraft for the purpose of transporting 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

. We are acting on a portion of that request concurrently with our action here

. We also note that Delta has conducted a safety au dit of Air Nigeria under the Department’s Code

- Share Safety Audit Program, and the FAA has advised us that it has reviewed the relevant audit report and found it to be acceptable . Thus, we are now in a position to grant Air Nigeria’s pending request in th e instant Docket for a statement of authorization to transport Delta code

- share traffic on flights operated by Air Nigeria between points in Nigeria and b eyond Nigeria to any open

- skies point or points

. However, we note that Air Nigeria does not yet hold DOT authority to operate to/from the United States with its own aircraft and crews . Accordingly, we are defer ring action on the remaining portion of Air Nigeria’s request for a statement of authorization to transport Delta code

- share passengers on flights operated by Air Nigeria between the United States and Nigeria until such time that Air Nigeria has received the underlying DOT authority to engage in those U.S. services

. 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 ) 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 al l 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 el ectronic version of this document is available on the World Wide Web at: http://www.regulations.gov

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.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) Delta and Air Nigeria 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 opera tions remains in effect.
(b) Delta and/or Air Nigeria 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 oper ating all or a portion of the approved code

- share services. Such notices should be filed in Docket OST

- 20 10

- 0240

. 1
(c) Delta and/or Air Nigeria 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, confirm that Delta 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 OST

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- 0240

. 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; t hat 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; and that the passenger liab ility of the operating carrier be unaffected

. (e) The authority to operate to third countries is subject to the condition that any service provided under the statement of authorization shall be consistent with all applicable agreements between the United States and the foreign countries involved. Furthermore, (i) nothing in the award of this blanket statement of authorization should be construed as conferring upon Delta rights (including code

- share, fifth freedom intermediate and/or beyond rights) to serv e markets where U.S. carrier entry is limited unless Delta notifies the Department of its intent to serve such a market and unless and until the Department has completed any necessary carrier selection procedures to determine which carrier(s) should be aut horized 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 Delta’s authority by virtue of the statement of authorization granted here, but that are not then being used by Delta , the holding of such authority will not be considered as providing any preference for Delta in a competitive 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 Delta nor Air Nigeria 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 ten (10) days after such non

- effectiveness or of such decision. 2 Pursuant to the Department’s Notice In the Matter of Blanket Notification of Code

- Share Service to Ope n Skies Partners and Points dated February 9, 2009, the joint applicants have provided blanket notification of their intent to engage in reciprocal code

- share services between the Open Skies points as outlined in their application. The joint applicants st ate that their initial code

- share operations will involve the placement of the Air Nigeria designator code on flights operated by Delta in the Abuja

- Accra and Accra

Atlanta markets. The joint applicants also state that they will provide the Department 30

- day notice before commencing code

- share services to or from non

- open skies countries. 3 The notice in paragraph (c) above can be used for this notification.