 

			  UNITED STATES OF AMERICA

		        DEPARTMENT OF TRANSPORTATION

			  OFFICE OF THE SECRETARY

			          WASHINGTON, D.C.

Issued by the Department of Transportation on November 28, 2003

NOTICE OF ACTION TAKEN -- DOCKET OST-2003-16563

________________________________________________________________________
________________________________________________________

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).

Applicant:  Antonov Design Bureau						Date Filed:  November 21, 2003

Relief requested:

(1)  Exemption from the foreign air carrier permit and exemption
conditions of Order 98-2-5; and 

(2)  Statement of authorization under 14 CFR Part 212 of the Departments
rules to the extent necessary to permit Antonov Design Bureau (Antonov)
to operate one one-way fifth-freedom cargo charter flight with AN-225
aircraft, transporting 150 metric tons of cargo from New York (JFK) to
Khartoum, Sudan, on behalf of Samaritan’s Purse, a charitable
organization based in North Carolina.  The flight is scheduled to depart
New York on or about December 4, 2003.  The purpose of the flight is to
transport 80,000 shoe box gifts packed by children in the United States
for needy children in Sudan.

In support of its requests, Antonov states that Order 98-2-5, issued by
the Department pursuant to Executive Order 13067, (published at 62 Fed.
Reg. 59987-59990, November 5, 1997) strictly prohibits virtually all
transactions involving transportation of cargo to/from Sudan, and does
not address exceptions in the Executive Order.  In that regard, Antonov
notes that Section 2(b) of the Executive Order prohibits the exportation
of goods from the United States to Sudan “except for donations of
articles intended to relieve human suffering, such as food, clothing,
and medicine.”  Antonov states that it is Antonov’s understanding
that the shipment qualifies as “donations or articles intended to
relieve human suffering” and that its facilitation of the shipment at
issue here is both incidental to the transaction and covered by the
exception provided for in the Executive Order.  Antonov further states
that export of the goods is consistent with the Sudanese Sanctions
Regulations implemented by the Department of Treasury, Office of Foreign
Assets Control (OFAC).  Antonov further states that it holds requisite
Department authority to conduct the proposed services.

Applicant representative:  Robert E. Cohn/Sheryl R. Israel (202)
663-8312

DOT Analyst:  Gordon H, Bingham (202) 366-2404

Responsive pleadings:  Atlas Air, Inc. (Atlas) and Gemini Air Cargo,
Inc. (Gemini) filed comments in response to Antonov’s request.  Atlas
states that it does not oppose the instant request but notes Antonov’s
“historically heavy reliance” on fifth-freedom charter operations. 
Atlas further states that the shipment (shoe box gifts) is not outsized,
and notes that the Department typically grants such requests only upon a
compelling public interest showing which Antonov has not made.  Atlas
states its intention to closely monitor future Antonov fifth-freedom
cargo charter requests and oppose those flights that are not
demonstrably for outsized cargo.  Gemini states that it supports the
comments filed by Atlas and adds that it will also monitor future
Antonov fifth-freedom requests and oppose those that are not for the
transportation of outsized cargo.  

DISPOSITION

Action:  Approved									Action date:  November 28, 2003

(We acted on this application without awaiting expiration of the 15-day
answer period with the consent of all parties served, and having
considered the two responsive pleadings filed.)

Effective dates of authority granted:  November 28, 2003-December 7,
2003



Basis for approval:  Based on the record before us, we found that the
authority requested by Antonov and the grant of Antonov’s request for
an exemption was in the public interest.  In addition, we also found
that grant of Antonov’s request for a statement of authorization under
14 CFR Part 212 was in the public interest.  We also found that
reciprocity with Ukraine warranted approval of its request to operate
the subject flight.

Except to the extent exempted/waived, this authority is subject to our
standard exemption conditions and to the condition that Antonov comply
with an FAA-approved flight routing for the authorized flight.  

We may amend, modify or revoke this authority at any time and without
hearing.

Action taken by:  Michael W. Reynolds	

		     Acting Assistant Secretary of Aviation

		       and International Affairs	

An electronic version of this document is available on the World Wide
Web at:

  HYPERLINK "http://dms.dot.gov//reports/reports_aviation.asp" 
http://dms.dot.gov//reports/reports_aviation.asp 

											Attachment

Foreign Carrier Conditions

In the conduct of the operations 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, including, but not limited to, 14 CFR Parts 129, 91, and
36, and with all applicable U.S. Government requirements concerning
security.  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 Principal Security Inspector (PSI) to advise the PSI of its
plans and to find out whether the Transportation 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 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.

  Antonov provided a copy of OFAC registration No. SH-98149, issued to
Samaritan’s Purse, authorizing the charterer “to conduct its
humanitarian activities in Sudan, including the transfer of funds and
exportation of goods and services to Sudan, in connection with
humanitarian operations.”

