UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C.

Issued by the Department of Transportation on May 20 , 20 10



### 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 AIRLI NES INC. (SKYMARK) Date Filed: April 14

, 2 0 10

Relief requested: E xemption 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 p oints 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 ana lyst: 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 , 20 10

Effective dates of authority granted: May 20 , 20 10 , through May 20 , 20 1 1

.

Basis for approval (bil ateral 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 ter ms, 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 o f 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 perfor m any Third and Fourth Fr ee do m charters un less specific authority in the form of a statement of authorization for such charter(s) has been granted by the D epartment. Skymark shall file applications for such statements of authorization at least 10 calendar days (or fewer subject to the provisions o f 14 C.F.R. §212.10 (d) (1)) before the charters i nvolved (under 14 C.F.R. §212.11 (c), we need not sub m it denials of late

- filed applications for Presidential review );

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

_________ _______________________________________________________________________________________________

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, Sk ymark’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 trad ed 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 w ith Department policy; (2) the appl icant 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 an d

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 Departmen t 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 effec tive when taken, and the filing of a pet ition 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 Depart ment;

(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 12 9, 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 th at 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 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 ope rations 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 a lso 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 t he 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 transportatio n" 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 otherwis e 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 m ay 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 complianc e 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.

1 2/2007