UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

Issued by the Department of Transportation on May 20, 2010

NOTICE OF ACTION TAKEN -- DOCKET DOT-OST-2010-0096

________________________________________________________________________________________________________

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

additional confirming order will be issued in this matter).

Applicant: SKYMARK AIRLINES INC. (SKYMARK) Date Filed: April 14, 2010

Relief requested: Exemption from 49 USC §41301 to permit the applicant to engage in charter foreign air 

transportation of persons, property and mail between any point or points in Japan and any point or points in the United 

States; and other charters pursuant to the prior approval requirements set forth in the Department’s regulations. The 

applicant requests that the authority be granted for a two-year term.

Applicant representative: George U. Carneal, 202-637-6546 DOT analyst: Brett D. Kruger 202-366-8025

Responsive pleadings: None.

DISPOSITION

Action: Approved in part, remainder (request for longer-term authority) dismissed.

1 Action date: May 20, 2010

Effective dates of authority granted: May 20, 2010, through May 20, 2011.

Basis for approval (bilateral agreement/reciprocity): 1998 Memorandum of Understanding between the United States

and Japan (1998 MOU).

Except to the extent exempted/waived, this authority is subject to the terms, conditions, and limitations of our standard 

exemption conditions (attached).

Special conditions/Remarks: Based on the record in this case, we found that the applicant is operationally and financially 

qualified to conduct its proposed operation, and that it is substantially owned and effectively controlled by citizens of its 

homeland.2 We also note that the applicant is properly licensed by its homeland to perform the proposed services. 

Furthermore, on May 6, 2010, the FAA advised us that it knows of no reason to withhold this authority.

The exercise of the privileges granted above is subject to compliance by Skymark with the provisions of the 1998 MOU; 

and the further condition that Skymark shall not perform any Third and Fourth Freedom charters unless specific authority 

in the form of a statement of authorization for such charter(s) has been granted by the Department. Skymark shall file 

applications for such statements of authorization at least 10 calendar days (or fewer subject to the provisions of 14 C.F.R. 

§212.10(d) (1)) before the charters involved (under 14 C.F.R. §212.11 (c), we need not submit denials of late-filed 

applications for Presidential review);

Action taken by: Paul L. Gretch, Director, Office of International Aviation

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 1 The one-year duration of the authority we granted to Skymark is consistent with our usual policy of granting exemption authority 

in the circumstances presented. We therefore, dismissed the application to the extent that it sought authority for a longer period. 2 The record indicates that Mr. Shinichi Nishikubo, Skymark’s President/CEO and a Japanese citizen, owns 51.76% of the 

company’s shares. H.I.S. Co., Ltd. (“HIS”), a Japanese travel company listed on the Tokyo Stock Exchange, owns 14.85% of the

company’s shares. Of the remaining shares, 11% are publicly traded on the Tokyo Stock Exchange and no other person owns 5% 

or more of the capital stock of Skymark. The record further indicates that the Skymark’s Chairman, President, Directors, and key 

management personnel are all citizens of Japan.
Under authority assigned by the Department in its regulations, 14 CFR Part 385, we found that (1) our action was consistent with 

Department policy; (2) the applicant was qualified to perform its proposed operations; (3) grant of the authority was consistent with 

the public interest; and (4) grant of the authority would not constitute a major regulatory action under the Energy Policy and 

Conservation Act of 1975. To the extent not granted/deferred/dismissed, we denied all requests in the referenced Docket. We may 

amend, modify, or revoke the authority granted in this Notice at any time without hearing at our discretion.

Persons entitled to petition the Department for review of the action set forth in this Notice under the Department’s regulations, 14 

CFR §385.30, may file their petitions within seven (7) days after the date of issuance of this Notice. This action was effective 

when taken, and the filing of a petition for review will not alter such effectiveness.

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 36 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 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 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 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 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 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 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 contract 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 "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 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 

prescribed 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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