### UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C.

Issued by the Department of Transportation on February 15 , 2011



### NOTICE OF ACTION TAKEN

-- DOCKET DOT

- OST

- 2011

- 0023

_____________________________________________________________________________________________________________________________ ___ 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: February 7, 2011 (as amended)

Relief requested: Amend e xemption from 49 USC § 40109(g) granted on February 9, 2011, permitting the applicant to operate

two , one

- way , all

- cargo charter flight s , using its AN

- 124

- 100 aircraft, carrying outsized cargo on behalf of United Launch Alliance (ULA), between Huntsville, Alabama, and Cape Canaveral AFS, Florida, on or around Febru ary 15

- 17, 20 11 , to extend the effectiveness of that authority to February 18, 2011 . The applicant states that one flight would carry an A tlas V Booster and the other flight would carry an Atlas Centaur III Upper Stage

. The applicant asserts that ULA nee ds the subject lift to meet aggressive fabrication schedules associated with mission integration and launch; that the cargo is too large for transportation on commercially

available U.S.

- carrier aircraft; and that surface transportation is not feasible bec ause of the size, extremely delicate nature

, and high value of the cargo. The applicant states that ULA has requested that the second flight be delayed 24 hours and Volga

- Dnepr is requesting amended authority to permit it to now operate the flight on Febr uary 18, 2011.

Applicant representative: Artem Tarasenko , 832

- 585

- 8611 DOT analyst: Robert J. Finamore, 202

- 366

- 2405

Responsive pleadings: Volga

- Dnepr served its initial and amended 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 s 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 pu blic interest; that because of an emergency created by unusual circumstances not arising in the normal course of business the traf fic cannot be accommodated by U.S. carriers holding certificates under 49 USC § 41102; that all possible efforts have been mad e to place the traffic on U.S. carriers; and that the transportation is necessary to avoid unreasonable hardship to the traffic in volved (an additional required finding, concerning emergency transportation during labor disputes, was not relevant here).

DI SPOSITION Action: Approved. Action date: February 15 , 2011

Effective dates of authority granted: February 15

- 1 8 , 2011

.

Basis for appro val: We are granting Volga

- Dnepr’s request to amend the dates of operation of the proposed one

- way flight s (described above), on behalf of ULA . 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 aggressive fabrication schedules associated with mission integration and launch; the fact that the cargo

could not b e transported by surface transportation because of its delicate nature and high value; and the unique, outsized nature of the cargo, constituted an emergency not arising in the normal course of business. Moreover, we find that the unanticipated delay

requ ested by ULA warrants approval of the applicant’s amended request. B ased 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 s at issue here. We also found that grant of this authority would prevent unreasonable hardship to ULA

. Finally, we found that the applicant was qualified to perform its proposed operation s

.

Except to the extent exempted/waived, this authority is subject to our standa rd exemption condition s (attached) and to the condition that the applicant must comply with FAA

- approved flight routing s for the authorized operation s . 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 Federal Aviation Administration, the Transportation Security Administration, an d 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 concerni ng 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 I IR of its plans and to find out whether the Transportation Security Administration has determined that security is adequate to allow such airp ort(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 6 411, 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 comp lies 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 immunit y, 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, accord ing 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 internat ional 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 1 4 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 an d 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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