Order 2011

- 3

- 32

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY
WASHINGTON, D.C.

Issued by the Department of Transportation

on the 28 th day of March, 2011

Served: March 28, 2011

Application of

EDELWEISS AIR AG Docket DOT

- OST

- 20 02

- 11481

for an exemption under 49 U.S.C. § 4 0109 and a n

amen ded foreign air carrier permit under 49 U.S.C.
§41301

ORDER GRANTING EXEMPTION AND TO SHOW CAUSE

Summary

By this order we (1) grant the application of the referenced foreign air carrier for an exemption

under 49 U.S.C. § 40109, subject to condition s; 1 and (2) tentatively find that it is in the public

interest to grant the applicant the amended f oreign air carrier permit attached as Appendix B to

this order.

Background

On August 23 , 2005, the Department issued a Notice , in Docket DOT

- OST

- 2005

- 22228

, announcing several steps designed to streamline our regulatory procedures for licensing U.S. and foreign air carriers. Among other things, the Notice stated that:

Assuming, based on the record and on the public interest/public convenience and necessity elements germane to our licensing decisions, that we were in a position to act

favorab ly, we would proceed to issue a single order (1) granting the exemption request for whatever duration we would normally have imposed, or until certificate/permit

authori ty becomes effective, whichever is shorter, and (2) tentatively deciding ( i.e.

, show

- cause) to award a corresponding certificate (or permit), again for the standard duration we would normally have imposed (such as, in the case of certificates, five years f or limited

- entry markets, indefinite for open

- entry markets, and in the case of

1 The conditions are attached as Appendix A.permits, five years for comity and reciprocity regimes, indefinite for agreement

regimes).

Our action in this Order serves to implement these streamlined regulatory procedures for the application involved in this proceeding.

Application

By application filed February 22, 2011, Edelweiss Air AG, a foreign air carrier of Switzerland

, requests an exemption under 49 U.S.C. § 40109

, and a n amended f oreign air carrier permit under

49 U.S.C. § 41301, to engage in the following services:

a. Scheduled and charter foreign air transportation of persons, property and mail from any point or points behind Switzerland via Switzerland and intermediate points to any point or points in

the United States and beyond;

b. Scheduled and charter all

- cargo services between the United States and any point or points;

and

c. Other charters pursuant to prior approval requirements under 14 CFR Part 212 of the Department’s Regulations. 2

The appli cant provided evidentiary materials required by 14 CFR Part 211 of our regulations to support its requests for authority.

No answers were filed to the application.

Decision

We have decided, under assigned authority and consistent with our August 23 , 200 5 Notice referenced above, to grant the applicant’s request for exemption authority, subject to conditions, and tentatively to grant, subject to show

- cause procedures, its request for a n amended foreign air carrier permit, also subject to conditions.

With respect to the applicant’s request for exemption authority, we find that grant of this authority is consistent with the public interest. We also find that the applicant has demonstrated based on the record that it is financially and operationally qualifi ed to perform the services authorized above, and that it is substantially owned and effectively controlled consistent with the provisions of the U.S.

- Switzerland Air Transport Agreement of June 21, 2010. 3

2 Edelweiss Air’s current foreign air carr ier permit, issued by Order 2003

- 12

- 8, in Docket DOT

- OST

- 2002

- 11481 on June 27, 2002, authorizes it to engage in charter foreign air transportation of persons, property and mail between any point or points in Switzerland and any point or points in the Unit ed States, and to engage in other charters subject to the Department’s regulations governing charters.

3 The record indicates that Edelweiss Air is ultimately wholly owned by Deutsche Lufthansa AG. Our ownership and control finding is consistent with the provisions of Article 3 of the U.S.

- Switzerland Agreement.The authority sought by the applicant is encompass ed by the U.S.

- Switzerland Agreement . We

therefore find that grant of the requested exemption authority, for a two

- year term, or until the requested permit authority becomes effective, whichever occurs earlier, is warranted.

We also note that the applica nt is properly licensed by its homeland to perform the proposed
services. In addition, on March 18, 2011, the Federal Aviation Administration advised us that it knew of no reason why we should act unfavorably on the applicant’s requests. We have verified the applicant’s compliance with 14 CFR Parts 203 (Warsaw liability waiver), and 205 (insurance requirements).

Tentative Findings and Conclusions

-- Foreign Air Carrier Permit Application

We tentatively find and conclude that the public interest warrants g ranting the applicant a n
amended foreign air carrier permit, in the form attached as Appendix B and subject to the

conditions attached. 4 In particular, w e tentatively find and conclude that the factors which support our grant of exemption authority to the applicant also warrant granting the applicant the

amended foreign air carrier permit it seeks.

In view of the foregoing and all facts of record, we tentatively find and conclude that:

1. It is in the public interest to issue the applicant a n amended fo reign air carrier permit in the

form attached ;

2. The applicant is fit, willing and able properly to perform the foreign air transportation described in the attached permit and to conform to the provisions of Title 49 of the U.S. Code

, and to our rules, regulations, and requirements;

3. The applicant is substantially owned and effectively controlled consistent with the provisions

of the U.S.

- Switzerland Air Transport Agreement ;

4 . The public interest requires that the exercise of the privileges grante d by the permit should be subject to the terms, conditions, and limitations contained in the attached permit, and to such other reasonable terms, conditions, and limitations required by the public interest as we may prescribe;

5

. The issuance of this f

or eign air carrier permit will not constitute a major regulatory action under the Energy Policy and Conservati on Act of 1975, as defined in 14 CFR §313.4(a)(1) of our

r egulations; 5

6 . The public interest does not require an oral evidentiary hearing on the application ; and

4 The applicant’s request for a n amended foreign air carrier permit was summarized in the Department’s published weekly list of applications filed. This notice described the authority sought and g ave interested persons an opportunity to submit evidence and objections to the award of this foreign air carrier permit authority. As noted
above, no answers to the application were filed.

5 This finding is based on the fact that the grant of this permit will not result in a near

- term net annual change in aircraft fuel consumption of 10 million gallons or more.7 . Our action with respect to this foreign air carrier permit should, unless disapproved by the

President of the United States under §41307 of Title 49 of the U.S. Code, become effective on the 61st day after its submission for §41307 r eview, or upon the date of receipt of advice from the President or his designee under Executive Order 12597 and implementing regulations that he or she does not intend to disapprove this portion of the Department’s decision under that section,

whichever oc curs earlier.

In view of the above, an d acting under authority assigned by the Department in its regulations,

14 CFR Part 385, we find that (1) our actions are consistent with Department policy; and (2) with respect to the exemption authority we are confe rring on the applicant, the applicant is qualified to perform those operation s; and that grant of the exemption authority is consistent with the public

interest and would not constitute a major regulatory action under the Energy Policy and

Conservation Act of 1975.

ACCORDINGLY,

1. We grant the request of Edelweiss Air AG f or an exemption under 49 U.S.C. §40109 to permit it to engage in the following services:

a. Scheduled and charter foreign air transportation of persons, property and mail from any po int or points behind Switzerland via Switzerland and intermediate points to any point or points in the United States and beyond;

b. Scheduled and charter all

- cargo services between the United States and any point or points;

and

c. Other charters pur suant to prior approval requirements under 14 CFR Part 212 of the Department’s Regulations.

2

. The exercise of the privileges granted above is subject to compliance by Edelweiss Air AG

with the conditions listed in Appendix A;

3

. Our action grant ing the exemption authority described herein is effective immediately, for a period of two year s from the issue date of this order , or until the attached permit becomes
effective, whichever is earlier ;

4

. We may amend, modify, or revoke the exemption aut hority set forth herein at our discretion at any time and without hearing;

5

. To the extent not acted upon above, we dismiss the applicant’s request for exemption authority in this Docket (DOT

- OST

- 2002

- 11481 ) ;

6

. With respect to the applicant’s request for a n amended foreign air carrier permit in this proceeding, w e direct all interested persons to show cause why our tentative decision on that application, set forth above

, should not be made final;7

. Any interested person objecting to the issuance of an order making final our tentative findings

and conclusions with respect to the applicant’s request for a foreign air carrier permit shall, no later than twenty

- one (21) calendar days after the date of service of this order, file with the Department and serve on the parties to this proceeding , a statement of objections specifying the part or parts of the tentative findings and conclusions objected to, together with a summary of testimony, statistical data, and concrete evidence to be relied upon in suppor t of the objections; if objections are filed, answers to objections are due no later than seven (7) calendar days
thereafter;

8

. If timely and properly supported objections are filed, we will give further consideration to the matters and issues raised by the objections before we take further action;

9

. In the event no objections are filed, all further procedural steps shall be deemed waived, and the Department will enter an order which will (subject to Presidential review under §41307 of

Title 49 of the U .S. Code) make final our tentative findings and conc lusions set forth in this
order; and

1 0

. We will serve a copy of this order on the applicant, the Embassy of Switzerland in Washington, D.C., the Federal Aviation Administration, and the U.S. Department of State

.

Persons entitled to petition the Department for review of this order under the Department’s regulations, 14 CFR §385.30, may file their petitions within seven (7) days after the date of

issuance of this order . Our action with respect to the app licant’s request for exemption authority

under 49 U.S.C. § 40109 is effective immediately , and the filing of a petition for review will not

alter such effectiveness.

By:

PAUL L. GRETCH

Director

Office of International A viation

(SEAL)

Appendices

An elec tronic version of this document is available on the World Wide Web at: http://www.regulations.govAppendix A

F oreign Carrier Exemption Conditions

In the conduct of the o perations authorized, the foreign carrier applicant(s) 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 I IR of its plans and to find out whether the Transportat ion 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 unde r 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 (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 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 "internat ional 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 fl ights to/from the United
States in its homeland;

(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 ap plicable 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 condition s imposed above. Moreover, this authority cannot be sold or otherwise transferred without explicit Department approval under Title 49 of the U.S. Code.

1 2/2007Appendix B

Issued by

Order 20 1 1

- X

- X

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASH INGTON, D.C.



### -------------------------------------------------------- PERMIT TO FOREIGN AIR CARRIER

(as amended)



### ---------------------------------------------------------



### EDELWEISS AIR AG

A F oreign Air Carrier of Switzerland

is authorized, subject to t he following provisions, the provisions of Title 49 of the U.S. Code, and the orders, rules, and regulations of the Department of Transportation, to engage in :

a. Scheduled and charter foreign air transportation of persons, property and mail from any poin t or points behind Switzerland via Switzerland and intermediate points to any point or points in the United States and beyond;

b. Scheduled and charter all

- cargo services between the United States and any point or points; and

c. Other charters pursu ant to prior approval requirements under 14 CFR Part 212 of the Department’s Regulations.

The holder shall also be authorized to engage in other charter trips in foreign air transportation, subject to the terms, conditions, and limitations of the Dep artment’s regulations governing charters.

This permit and the exercise of the privileges granted in it shall be subject to the terms, conditions and limitations in both the order issuing this permit and the attachment to this order, and to all applicable provisions of any treaty, convention or agreement affecting international air transportation now in effect, or that may become effective during the period this permit remains in effect, to which the United States and the holder’s homeland are or shall bec ome parties.

This permit shall be effective on

, 20 11 . Unless otherwise terminated at an earlier date pursuant to the terms of any applicable treaty, convention or agreement, this permit shall terminate (1) upon the dissolution or liquidation of the holder to whom it was issued; (2) upon the effective date of any treaty, convention, or agreement or amendment, which shall have the effect of eliminating the bilateral right for the service authorized by this permit from the servicewhi ch may be operated by airlines designated by the Government of Switzerland (or, if the right

is partially eliminated, then the authority of this permit shall terminate in like part); (3) upon the effective date of any permit granted by the Department to an y other carrier designated by the

Government of Switzerland in lieu of the holder; or (4) upon the termination or expiration of the applicable air services agreement between the United States and Switzerland . However, clause (4) of this paragraph shall no t apply if prior to such termination or expiration, the foreign air transportation authorized herein becomes the subject of another treaty, convention or agreement

to which the United States and Switzerland become parties.

The Department of Transportation has executed this permit and affixed its seal on

, 20 1 1

.

By:

PAUL L. GRETCH

Director

Office of International Aviation 

### (SEAL)Foreign Air Carrier Permit Conditions

In the conduct of the operations authorized, the foreign carrier app licant(s) 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 t he 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 applicabl e. 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 I IR of its plans and to find out whether the Transportation Security Administration

has determined th at 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 cover age, in the form 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 ai rcraft 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

servi ces;

(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 authorit y 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 int ernational 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 Warsa w 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

its homela nd;

(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 ca nnot be sold or otherwise transferred without explicit Department approval under Title 49 of the U.S. Code.

1 2 /200 7