 

	

	                  UNITED STATES OF AMERICA

	           DEPARTMENT OF TRANSPORTATION

	                   OFFICE OF THE SECRETARY

	                           WASHINGTON, D.C.

 

Issued by the Department of Transportation on August 5, 2005

NOTICE OF ACTION TAKEN -- DOCKET OST 2005-22043

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:  POLET AIRLINES (Polet)							Date Filed: August 4, 2005

Relief requested:  Exemption from 49 U.S.C. § 40109(g) to permit the
applicant to operate, on behalf of British Petroleum Exploration Alaska,
Inc. (BP Alaska), two one-way cargo charter flights, each carrying two
outsized generator trailers with parts from Birmingham, Alabama, to
Fairbanks, Alaska, on or about August 5, 2005, using its AN-124
aircraft.  The applicant stated that BP Alaska suffered a power outage
over the past weekend and requires the generating equipment as soon as
possible in order to enable the company to resume its Alaska operations.
 The applicant further stated that transport by air is the only feasible
method for delivery of the equipment, and that the cargo is too large
for transportation on U.S.-carrier aircraft.

Applicant representative: Lester Bridgeman, 251-432-1414	        DOT
Analyst: Brian J. Hedberg, (202) 366-7783

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).  

	       DISPOSITION

Action:  Approved								Action date:  August 5, 2005

Effective dates of authority granted: August 5-8, 2005

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 need to move the generating equipment promptly in order to enable BP
Alaska to recover from the unexpected power outage at its facility; the
fact that the cargo could not be transported by surface; the potential
negative impact of delivery delay; 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 operation at issue here.  We also found that grant
of this authority would prevent unreasonable hardship to BP Alaska. 
Finally, we found that the applicant was qualified to perform its
proposed operation.

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

Action taken by:					Karan K. Bhatia	

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

Foreign Carrier Exemption 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, including, but not limited to, 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 Principal Security Inspector (IPSI) to advise
the IPSI 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.

05/2004

