UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF THE SECRETARY WASHINGTON, D.C. Issued by the Department of Transportation on December 3 , 2010


### 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)

Date Filed: September 27 , 20 10 Relief requested: S tatements of authorization under 14 CFR Part 212 to permit th e 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

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

- 366

- 2405 Responsive pleadings: None filed.

DISPOSITION Action: Approved in part (statement of authorization for Delta ) , subject to conditions , remainder (statement of authorization for Air Nigeria) deferred. (See conditions and remarks below

. )

Action date: December 3 , 2010 Effective dates of authority granted: The statement of authorization granted to Delta is effective December 3 , 2010, 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, and l imitations of the conditions noted immediately below and the attached code

- share conditions

. Special conditions/Remarks: We note that Air Nigeria does not hold the underlying authority from the Department necessary to engage in its proposed code

- share op erations in which it will carry Delta passengers. 1 Further, the joint applicants state that Delta is still in the process of conducting a code

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

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

. Action taken by: Paul L. Gretch, Director, Offic e of International Aviation

________________________________________________________________________________________________________ Under authority assigned by the Department in its regulations, 14 CFR Part 385, we found that (1) our action was consisten t 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/def erred/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 alte r such effectiveness. An electronic version of this document is available on the World Wide Web at: http://www.regulations.gov

1 Air Nigeria’s current authority is limited 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 A pril 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 pr oviding 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 t he carriers decide to cease operating 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 co de

- 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
no tices 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
re servation 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 pass enger; 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 applica ble 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 intermed iate 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 determ ine 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, bu t 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 Notifica tion 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 appl ication. 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 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.