### UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C.

Issued by the Department of Transportation on March 31 , 2011



### NOTICE OF ACTION TAKEN

-- DOCKET DOT

- OST

- 2011

- 0070

_____________________________________________________________________________________________________________________________ ___ This serves as notice to the public of the action described below, taken by the Department official indicated (no additional

co nfirming order will be issued in this matter).

Applicant: VOLGA

- DNEPR J. S. CARGO AIRLINE ( Volga

- Dnepr) Date Filed: March 30

, 2011

Relief requested: Exemption from 49 USC § 40109(g) to permit the applicant to operate one , one

- way , all

- cargo cha rter flight

, using its IL

- 76TD

- 90VD aircraft, carrying cargo on behalf of TAM Linhas Aereas, S.A. (TAM), between Luis Munoz Marin International Airport, Puerto Rico

, and Miami International Airport, Florida

, on or around April 1

- 3 , 20 1 1

. The applicant states
that the cargo to be transported consists of an aircraf t engine and associated parts from a TAM Airbus 330

- 223 aircraft on ground (AOG). The applicant asserts that TAM needs the subject lift to ensure prompt delivery of the engine and associated pa rts to a maintenance facility in Miami for expedited repair and return to service ; that TAM stands to face substantial delays in flight operations and significant loss in revenue if the mission is not completed within the set schedule; that U.S. carriers w ere solicited for movement of the cargo but do not have the required availa bility to meet the movement tim eline; and that surface transportation is not feasible because of the nature of the cargo and the urgency of the shipment.

Applicant representative : Colon Miller, 832

- 585

- 8611 DOT analyst: Robert J. Finamore, 202

- 366

- 2405

Responsive pleadings: Volg a

- 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 b y 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: March 31 , 2011

Effect ive dates of authority granted: April 1

- 3 , 2011.

Basis for approval: We are granting Volga

- Dne pr’s request to operat e the proposed one

- way flight (described above), on behalf of

TAM

. 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 ensure
prompt delivery of the engine and associated parts to a maintenance facility in Miami for expedited repair and return to service ; the

fact that TAM stands to face substan tial delays in flight operations and significant loss in revenue if the mission is not completed

within the set schedule ; and the unique nature of the cargo, constituted an emergency not arising in the normal course of business. Moreover, based on the rep resentations 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

TAM . Finally, we foun d that the applicant was qualified to perform its proposed operation.

Except to the extent exempted/waived, this authority is subject to our standa rd exemption conditions (attached) and to the condition 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 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, 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 3 6 and 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 Industry Representative (IIR) (formerly referred to as International Principal Security Inspector) to advise the IIR of its plans and to find out whether the Transportati on 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 unde r 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 requirement s 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 St ates 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 contrac t 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 "in ternational 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

presc ribed 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.

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