 

	

	                UNITED STATES OF AMERICA

	         DEPARTMENT OF TRANSPORTATION

	                 OFFICE OF THE SECRETARY

	                         WASHINGTON, D.C.

 

Issued by the Department of Transportation on December 16, 2002

NOTICE OF ACTION TAKEN -- DOCKET OST 2002-14077

This serves as interim notice to the public of the action described
below, taken orally by the Department official indicated; the confirming
order or other decision document will be issued as soon as possible.

Applicant:  Volga-Dnepr J.S. Cargo Airline				Date Filed: December 16,
2002

Relief requested:  Exemption from 49 U.S.C. 40109(g) to operate three
one-way emergency cabotage cargo flights from Jackson, Mississippi or
Houston, Texas, as required, to Anderson AFB, Guam, to transport
outsized cargo consisting of high voltage line machinery, equipment and
materials on behalf of Kellogg Brown & Root (KBR), during the period
December 17-26, 2002.  The applicant stated that the cargo is urgently
needed to allow KBR to restore electrical power to U.S. Navy facilities
on Guam following severe damage inflicted by a recent typhoon; that the
cargo is too large for transportation on U.S.-carrier aircraft, and that
surface transportation is not feasible because of the need to restore
power to these U.S. military facilities as soon as possible.

Applicant representative: Glenn Wicks, (202) 457-7790		DOT Analyst:
George Wellington, (202) 366-2391

Responsive pleadings: The applicant served its application on those U.S.
carriers operating large all-cargo aircraft.  Each carrier indicated
that it did not have aircraft available to conduct the proposed
operation, and that it had no comment or did not oppose grant of the
requested authority.

Statutory Standards:  Under 49 U.S.C. §40109(g), we may authorize a
foreign air carrier to transport commercial traffic between U.S. points
(i.e., cabotage traffic) only under limited circumstances. 
Specifically, we must find that the authority is in the public interest;
that because of an emergency created by unusual circumstances not
arising in the normal course of business, U.S. air carriers holding
certificates under 49 U.S.C. §41102 cannot accommodate the traffic
involved; that all possible efforts have been made to accommodate the
traffic by using the resources of U.S. carriers; and that the authority
is necessary to avoid unreasonable hardship to the traffic involved (an
additional required finding, concerning emergency transportation during
labor disputes, was not relevant here).  For examples of earlier grants
of authority of this type, see, e.g., Order 2001-5-23.

	DISPOSITION

Action:  Approved					Action date:  December 16, 2002

Effective dates of authority granted: December 17 - 28, 2002

Basis for approval:  We found that our action was consistent with all
the relevant criteria of 49 U.S.C. 40109(g) for the grant of an
exemption of this type, and that the grant of this authority was
required in the public interest.  Specifically, we were persuaded that
the damage inflicted on the U.S. Navy power generating facilities on
Guam by recent, extraordinary weather conditions; the need to restore
those facilities promptly and ensure U.S. military readiness; and the
unique, outsized nature of the cargo; constituted an emergency not
arising in the normal course of business.  

Moreover, based on the representations of the U.S. carriers, we
concluded that no U.S. carrier had aircraft available which could be
used to conduct the operations at issue here.  We also found that grant
of this authority would prevent unreasonable hardship to KBR and the
U.S. Navy.  Finally, we found that the applicant was qualified to
perform its proposed operations (see, e.g., Order 94-10-13).

Except to the extent exempted/waived, this authority is subject to our
standard exemption conditions (attached), and to the condition that
VolgaDnepr comply with an FAA-approved flight routing for the authorized
flights, and with any requisite Department of Defense authorizations.

Action taken by:		Read C. Van de Water	

			Assistant Secretary for Aviation

			  and International Affairs

An electronic version of this document is available on the World Wide
Web at: http://dms.dot.gov//reports/reports_aviation.asp

												       Appendix A

FOREIGN AIR CARRIER CONDITIONS OF AUTHORITY

In the conduct of the operations authorized, the holder 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, including, but not limited to, 14 CFR Parts 129, 91, and
36, and with all applicable U.S. Government requirements concerning
security;1

(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 (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
"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 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 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 (formerly the
Federal Aviation Act of 1958, as amended).

__________________

1  To assure compliance with all applicable U.S. Government requirements
concerning security, the holder should, 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, inform its
Principal Security Inspector of its plans.

 											

U.S. Department of Transportation	

Office of the Secretary of Transportation						        (41301/40109)
10/2002

