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 1 9 th day of September, 2013

Served: September 1 9 , 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

.

Ba ckground

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, us ing 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 Septem ber 20

- 22, 2013. 2 Antonov stated that it ha d been chartered by Ruslan SALIS GmbH to carry mil itary 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

s ubsequently 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 s pecified 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 relat ed to

their third

- and fourth

- freedom operations.

In this case w e 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 r eceived “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 equi pment 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

u rg es 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 withdr aw its objection to Antonov’s applic ation

. Kalitta further states that it wish es 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

W e will grant Antonov’s petition for consideration of Order 2013

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- 10, and, on reconsideration

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

Antonov’s petition p resents new matter that w as not on the record at the time of our initial decision.

The addi tion of outsize cargo to the flight has result ed 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 be cause of these new circumstances , and that grant of Antonov’s request is

now in the public interest

.

At the same time, we are extremely conce rned that last minute change s to applications of this nature

create unnecessary hardship for interested parties

, including in the ability of those parties to submit3

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

merits of such request s 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 no tice 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 applican t’s or shipper’s prescribed time frame

, notwithstanding any request for expedited action. We therefore urge shippers and applicant carrier s to submit all pertinent information with the ir 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

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- 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