UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

Issued by the Department of Transportation on February 17, 2006

NOTICE OF ACTION TAKEN -- DOCKET OST-2006-23995

________________________________________________________________________
________________________________________________________

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:  VOLGA-DNEPR J.S. CARGO AIRLINE (Volga-Dnepr)		 	          
Date Filed:  February 16, 2006

Relief requested:  Exemption from 49 USC § 40109(g) to permit the
applicant to operate one, one-way, all-cargo charter flight, using its
AN-124-100 aircraft, carrying outsized cargo on behalf of Lockheed
Martin, from Philadelphia, Pennsylvania to Moffett Field, California
during the period February 20 through February 27, 2006.  The applicant
states that the flights would carry an outsized communications satellite
for the Japan Satellite Company.  The applicant asserts that Lockheed
Martin needs the subject lift to meet extremely tight schedules
associated with maintaining the assigned launch slot of the satellite;
that the cargo is too large for transportation on U.S.-carrier aircraft;
and that surface transportation is not feasible because of the delicate
nature and extremely high value of the cargo.  

Applicant representative:  Glenn P. Wicks, 202-457-7790      		         
 DOT analyst:  Robert J. Finamore, 202-366-2405

Responsive pleadings:  Volga-Dnepr 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 USC § 40109(g), we may authorize a
foreign air carrier to carry commercial traffic between U.S. points
(i.e., cabotage traffic) under limited circumstances.  Specifically, we
must find that the authority is required in the public interest; that
because of an emergency created by unusual circumstances not arising in
the normal course of business the traffic cannot be accommodated by U.S.
carriers holding certificates under 49 USC § 41102; that all possible
efforts have been made to place the traffic on U.S. carriers; and that
the transportation 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: February 17, 2006

Effective dates of authority granted: February 20, 2006, through
February 27, 2006.

Basis for approval:  We are granting Volga-Dnepr’s request to operate
the proposed one-way flight (described above), on behalf of Lockheed
Martin.  We found that its request met all the relevant criteria of 49
USC § 40109(g) for the grant of an exemption of this type, and that the
grant was required in the public interest.  Specifically, we were
persuaded that the need to move the cargo to meet extremely tight
schedules associated with maintaining the assigned launch slot; the fact
that the cargo could not be transported by surface because of its
delicate nature and extremely high value; 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 that
could be used to conduct the operation at issue here.  We also found
that grant of this authority would prevent unreasonable hardship to
Lockheed Martin.  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 must comply with an FAA-approved flight routing for the
authorized operation.

Action taken by:        				Michael W. Reynolds

Acting Assistant Secretary for 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 

FOREIGN CARRIER EXEMPTION CONDITIONS                                    
                       		       ATTACHMENT

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

 

