Order 2013-9-11

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

Issued by the Department of Transportation

on the 19th day of September, 2013

 Served: September 19, 2013

Application of

ANTONOV COMPANY T/A ANTONOV AIRLINES Undocketed

for a statement of authorization under 14 CFR Part 212

ORDER ON RECONSIDERATION

Application

By this order we grant the petition of Antonov Company t/a Antonov Airlines (Antonov) for 

reconsideration of Order 2013-9-10 in the above-captioned proceeding. On reconsideration, we will 

grant Antonov’s application for a statement of authorization. 

Background

By application dated August 29, 2013, Antonov Company t/a Antonov Airlines (Antonov), a foreign 

air carrier of the Ukraine, requested a statement of authorization under 14 CFR Part 212 to operate a 

one-way seventh-freedom cargo charter flight, using an AN-124 aircraft, between Leipzig, Germany, 

and Mountain Home AFB, Idaho, with a non-traffic stop in Washington, D.C. (Dulles),1 during the 

period of September 20-22, 2013.2

 Antonov stated that it had been chartered by Ruslan SALIS GmbH 

to carry military supplies and equipment, including ten 20-foot containers, in support of German 

military activities at Mountain Home AFB, Idaho. Neither the application nor any subsequent 

Antonov pleadings indicated that the shipment involved outsize cargo. Indeed, in its most recent 

pleading before our action, filed on September 12, Antonov specifically characterized the operation as 

a “seventh-freedom non-outsized cargo flight.” Antonov response, at 3.

Kalitta objected to the application, asserting undue reliance by Antonov on fifth/seventh-freedom 

operations and stating that, given the non-outsized nature of the cargo, Kalitta could carry it on its 

Boeing 747 aircraft.

 1 Antonov states that the flight will now require an additional non-traffic stop at Gander, Newfoundland. 2 Kalitta Air, LLC (Kalitta) filed an objection to Antonov’s application. Antonov filed a reply and both carriers 

subsequently filed additional responsive pleadings.
2

On September 18, 2013, the Department issued Order 2013-9-10, denying Antonov’s request to 

operate the referenced flight. In taking this action, we noted that we will grant a foreign air carrier a 

statement of authorization if we find that the proposed operation meets the requirements of 14 CFR 

Part 212 and is in the public interest. We also specified the various decisional criteria that we consider 

in making our public interest determinations, one of which is the Department’s longstanding policy 

against undue reliance by foreign air carriers on fifth/seventh-freedom charter operations as related to 

their third- and fourth-freedom operations. 

In this case we found that the record clearly indicated undue reliance by Antonov, as it had not 

operated a third- or fourth-freedom charter flight to/from the United States since December 2011, a 

period during which its U.S. operations consisted solely of fifth/seventh-freedom charter operations. 

We said that “in the case before us, which does not involve outsize cargo and where alternative means 

of transport are available,” we could not make the public interest finding for approval.

Petition of Antonov

On September 19, 2013, Antonov filed a petition for reconsideration of Order 2013-9-10. Antonov 

states that the final cargo packing list, which the carrier received “this morning,” includes one 40-foot 

container that Antonov understands cannot be accommodated by B747F aircraft, as well as four units 

that are approximately 25 feet in length. Antonov asserts that the container is required for the 

transportation of sensitive reconnaissance equipment that will be used for the German Armed Forces 

military exercises at Mountain Home AFB. Antonov contends that the 40-foot container precludes 

Kalitta or any other U.S. air carrier from providing the air transportation required by the shipper, and 

urges the Department promptly to reverse its decision and approve Antonov’s application.

Answer of Kalitta

Kalitta Air states that, as a gesture of accommodation to the German Ministry of Defense, it has 

decided to withdraw its objection to Antonov’s application. Kalitta further states that it wishes to 

register its concern regarding the addition, at the very last moment, of outsize cargo to the flight at 

issue. It states that concerns have been voiced amongst U.S. carriers for some time that operators of 

AN-124 aircraft can obtain clearances for flights that would otherwise not warrant approval by 

including oversize items in the shipment that could otherwise be consolidated with other shipments or 

shipped by surface.

Decision

We will grant Antonov’s petition for consideration of Order 2013-9-10, and, on reconsideration, we 

will grant Antonov’s application for a statement of authorization.

Antonov’s petition presents new matter that was not on the record at the time of our initial decision. 

The addition of outsize cargo to the flight has resulted in a lack of an alternative means of transport

being available to the shipper that would allow it to meet its required timeline. While the basis of our 

original decision remains entirely valid given the record then before us, we believe that a different 

outcome is now warranted because of these new circumstances, and that grant of Antonov’s request is 

now in the public interest. 

At the same time, we are extremely concerned that last minute changes to applications of this nature 

create unnecessary hardship for interested parties, including in the ability of those parties to submit 
3

meaningful responsive pleadings, and furthermore hinder the Department’s ability to fully evaluate the 

merits of such requests in a timely and judicious manner. Here, the change occurred after we had 

rendered our decision and fewer than 24 hours before the flight. In light of these concerns, we are 

putting shippers and applicant carriers on notice that, in the future, where such late-filed substantive 

and potentially decisional changes are made to pending applications, applicants and shippers should 

have no expectation or assurance that we will complete our regulatory review within the applicant’s or 

shipper’s prescribed time frame, notwithstanding any request for expedited action. We therefore urge 

shippers and applicant carriers to submit all pertinent information with their original application, or in 

the alternative, to supplement/amend applications as far in advance of proposed flight dates as 

possible. 

ACCORDINGLY,

1. We grant the petition of Antonov Company t/a Antonov Airlines for reconsideration of 

Order 2013-9-10, and, upon reconsideration, grant the relief requested by the petitioner; and

2. We will serve a copy of this order on Antonov Company t/a Antonov Airlines and Kalitta Air, LLC.

By:

SUSAN L. KURLAND

Assistant Secretary for

Aviation and International Affairs

(SEAL)

Appendix

An electronic version of this document is available on the World Wide Web at:

http://www.regulations.gov