### UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C.

Issued by the Department of Transportation on February 23, 2010



### NOTICE OF ACTION TAKE N -- DOCKET DOT-OST-2010-0045

_______________________________________________________________________________________________________________________________ _ This serves as notice to the public of the action described belo w, 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 19, 2010

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, ca rrying outsized cargo on behalf of Lockheed Martin Space Systems (LMSS), from Denver, Colorado, to Vandenberg AFB, California, on or around March 1, 2010. The applicant states that the flight would carry an Atlas V Booster. The applicant asserts that LM SS needs the subject lift to meet aggressive final assembly and fabrication schedules associated with mission integration and launch; that the cargo is too large for transportation on commercially available U.S.-c arrier aircraft; and that surface transportation is not feasible because of the extremely delicate nature and high value of the cargo.

Applicant representative: Colon Miller, 832-585-8611 DOT analys t: Robert J. Finamore, 202-366-2405

Responsive pleadings: Volga-Dnepr served its application on t hose U.S. carriers operating large all-cargo aircraft. Each carr ier

indicated that it did not have aircraft available to conduct the proposed operation and that it had no comment or did not oppos e 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 cr eated by unusual circumstances not arising in the normal course of business the traffi c cannot be accommodated by U.S. carriers hol ding certificates under 49 USC § 41102; that a ll possible efforts have been made to place the traffic on U.S. carriers; and that the transportation is necessary to avoi d unreasonable hardship to the traffic invo lved (an additional required finding, concerning emergency transpor tation during labor disputes, was not relevant here).

DISPOSITION

Action: Approved. Action date: February 23, 2010

Effective dates of authority granted: February 28-March 2, 2010.

Basis for approval: We are granting Volga-Dnepr’s request to ope rate the proposed one-way flight (described above), on behalf of LMSS. We found that its request met all the relevant criteria of 49 USC § 40109(g) for the grant of an exemption of this ty pe, and that the grant was required in the public interest. Specifically, we were persuaded that the need to move the cargo to mee t aggressive assembly and fabrication schedules associated with mission integration and launch; the fact that the cargo could not be transported by surface transportation because of its delicate nature and high value; and the unique, outsized nature of the car go, 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 availa ble that could be used to conduct the operation at issue here. We also found that grant of this authority would prevent unreasonable hardship to LMSS. 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 cond ition that the applicant must comply with an FAA-approved flight routing for the authorized operation. We may amend, modify, or revoke the authority granted in this Notice at any time without hearing at our discretion.

Action taken by: Susan L. Kurland Assistant Secretary for Aviation

and International Affairs

An electronic version of this document is available on the World Wide Web at: http://www.regulations.gov

### 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 effec tive 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 Fede ral Aviation Administration, the Transportation Security Administration, and with all applicable U.S. Government requirements concerning security, including, but not limited to, 14 CFR Parts 129, 91, and 36 and 49 CFR Part 1546 or 1550, as applicable. To assure compliance with all applicable U.S. Government requirements concerning secur ity, 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 Industry Representative (IIR) (form erly referred to as International Principal Security Inspector) to advise the IIR 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 c overage contained in 14 CFR Part 205, and, prior to the commencement of any operations under this authority, file evid ence 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, insuran ce 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 requi rements 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 wa iver 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 interna tional air transportation that, according to the contract of carriage, include a point in the United States as a point of or igin, point of destination, or agreed stopping place, or for which the contract of carriage was purchased in the Unite d States; or (b) based on a claim under any international agreement or treaty cognizable in any court or other tri bunal of the United States. In this condition, the term "international air transportation" means "international tran sportation" as defined by the Warsaw Convention, except that all States shall be considered to be High Cont racting Parties for the purpose of this definition;

(8) Except as specifically authorized by the Department, orig inate 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 otherwi se provided in the applicable aviation agreement, comply with the Department's rules governing char ters (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. agen cies and courts, and with all applicable laws of the United States.

This authority shall not be effective during any period wh en 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.

12/2007