 

			  UNITED STATES OF AMERICA

		        DEPARTMENT OF TRANSPORTATION

			  OFFICE OF THE SECRETARY

			          WASHINGTON, DC

Issued by the Department of Transportation on December 27, 2004

NOTICE OF ACTION TAKEN -- DOCKETS OST-2003-16690, OST-2004-17363

__________________________________________________________________

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 Atlas Air, Inc. and Polar Air Cargo, Inc. filed
11/19/2004 for:

XX  Waiver of the dormancy condition applicable to certain of Atlas’
U.S.-Brazil all-cargo frequencies.  

Atlas and Polar seek a dormancy waiver for four of Atlas’ ten
U.S.-Brazil all-cargo frequencies.  By Notice of Action Taken dated
September 17, 2004, in docket OST-2002-11985, the Department granted
Atlas a dormancy waiver for four of its ten U.S.-Brazil all-cargo
frequencies through December 31, 2004.  The Joint Applicants now seek an
extension of Atlas’ current frequency dormancy waiver.  

In support of their request, the Joint Applicants note that, by Order
2004-11-3, in the above-captioned dockets, the Department tentatively
granted Polar Air Cargo the authority to operate U.S.-Brazil all-cargo
services in place of Atlas Air.  In the event that the Department has
not issued a final order by the December 31, 2004 expiration date of the
current waiver, the Joint Applicants state that a 90-day extension of
the dormancy waiver is essential to preserve the authority that the
Department has tentatively decided to grant to Polar in place of Atlas. 
Furthermore, the Joint Applicants state that Polar will require a longer
period of time – running beyond even the transition of existing Brazil
services that will follow issuance of the final order – to increase
capacity in a measured fashion with the four frequencies covered by the
dormancy waiver.  For these reasons, the Joint Applicants request a
Pendente Lite extension of the current frequency dormancy waiver until
90 days after the issuance of the final order.  The Joint Applicants
state that 90 days is the time period typically established by the
Department for commencement of services following the award of route
rights and/or frequencies in limited-entry markets.     

Arrow Air filed an answer.  Atlas and Polar filed a reply.

Arrow states that it has not opposed the Atlas/Polar application in the
above dockets provided that the Atlas/Polar request does not adversely
affect consideration of Arrow’s application for new authority to serve
Brazil.  Arrow further states, however, that a request for a further
extension of the dormancy waiver, a request not previously submitted to
the Department, is inappropriate.  Arrow indicates that it has a
potential interest in the availability of additional frequencies if the
Department sustains its decision in the show-cause order and Arrow has
transitioned to scheduled service.    

In their reply, Atlas and Polar note that Arrow has not opposed their
request.  The Joint Applicants contend that Arrow is merely interested
in ensuring that grant of the waiver extension does not prejudice
Arrow’s ability to serve Brazil should the Department’s tentative
decision be finalized.  In addition, the Joint Applicants note that
there is no guarantee that the Department will even have issued its
final order by December 31, 2004, and that an extension beyond that date
is essential.     

Applicant rep:  Russell E. Pommer, 202-354-3843      DOT analyst:
Michael D. Bodman 202-366-9667

DISPOSITION

XX  Granted, in part. (See below).

XX  Balance deferred (See below).

The above action was effective when taken: December 27, 2004, through
March 31, 2005.

Action taken by:  Paul L. Gretch, Director

		 Office of International Aviation

Except to the extent exempted or waived, this authority is subject to
the terms, conditions, and limitations indicated:  

XX Holder’s certificate of public convenience and necessity

________________________________________________________________________
____________

Remarks:  We have granted the Joint Applicants’ request for a dormancy
waiver extension for an additional 90 days to preserve the status quo
while the Department considers the pleadings filed in response to Order
2004-11-3 and continues to process a final order in the above-captioned
dockets.  We have deferred on the Joint Applicants’ request to the
extent that they seek a Pendente Lite extension of the dormancy waiver
until 90 days after issuance of a final order.  We will address the
issues raised by the Pendente Lite extension request, including those
raised by Arrow, within the context of the proceeding in the
above-captioned dockets.  We note that our action here extending
Atlas’ dormancy waiver will not affect the Department’s
consideration of Arrow’s application for new authority to serve
Brazil.    

We find that grant of the waiver request, in the particular
circumstances presented, is in the public interest.  However, we are
putting Atlas and Polar on notice that there should be no expectation
that an additional request will similarly be granted.  As is our policy
in considering dormancy waiver requests, we reserve the right to
reexamine whether grant of this waiver continues to be in the public
interest.  Any future request to extend the dormancy waiver for the
frequencies at issue here will have to be considered in light of the
specific arguments offered and responses thereto, and in the context of
the circumstances present at that time, including whether another
carrier seeks to use the frequencies at issue.

________________________________________________________________________
____________

Under authority assigned by the Department in its regulations, 14 CFR
Part 385, we found that (1) our action was consistent with Department
policy; and (2) grant of the authority was consistent with the public
interest.  To the extent not granted or deferred, we denied all requests
in the referenced Docket.  We may amend, modify, or revoke the action
taken 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://dms.dot.gov//reports/reports_aviation.asp 

Atlas’ waiver from the dormancy condition is effective through March
31, 2005.   As to any frequency with which Atlas does not begin service
by that date, its allocation with respect to that frequency will expire
automatically.   

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