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-2010-0240

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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 Application of: DELTA AIR LINES, INC. (Delta) and VIRGIN NIGERIA AIRWAYS LIMITED D/B/A AIR 

NIGERIA (Air Nigeria)1

Date Filed: September 27, 2010

Relief requested: Statements of authorization under 14 CFR Part 212 to permit the joint applicants to engage in reciprocal 

code-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.

Applicant representatives: Alexander Van der Bellen, 202-842-4184 (Delta) and 

 Anita M. Mosner, 202-419-2604 (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 Nigeria’s pending request for a statement of authorization to place the Delta designator code on flights operated by Air Nigeria 

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 between 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, 2011,

and shall remain in effect for an indefinite period, subject to conditions. 

Basis for approval (bilateral agreement/reciprocity): United States-Nigeria Air Transport Agreement.

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

noted immediately below and the attached code-share conditions.

Special conditions/Remarks: At the time the joint applicants initially filed their application, Air Nigeria did not hold the 

underlying authority from the Department necessary to engage in its proposed code-share operations carrying Delta 

passengers.2

 In addition, the joint applicants stated that Delta was still in the process of conducting a code-share safety 

audit of Air Nigeria. Accordingly, we 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 audit 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 the instant Docket for a statement of authorization 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 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 deferring 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

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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

 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 operations 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 operating all or 

a portion of the approved code-share services. Such notices should be filed in Docket OST-2010-0240.

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-2010-0240.

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; 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; and that the passenger liability 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 serve 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 

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 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 Open 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 state 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 AccraAtlanta 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.