Order 2012-11-23

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

Issued by the Department of Transportation

on the 18th day of September, 2012

Served: November 20, 2012

Application of

SKYMARK AIRLINES INC. Docket DOT-OST-2010-0096 

for an amended exemption under 49 U.S.C. §40109 and a 

foreign air carrier permit under 49 U.S.C. §41301

FINAL ORDER

By Order 2012-8-29, issued August 22, 2012, we directed all interested persons to show cause 

why we should not make final our tentative findings and conclusions stated therein and award a 

foreign air carrier permit in the form attached to the Order and subject to the conditions attached 

thereto. We gave interested persons 21 days to file objections to the Order. We said that if no 

objections are filed, all further procedural steps shall be deemed waived, and the Department will 

enter an order (subject to Presidential review under 49 USC §41307) which will make final the 

findings and conclusions of the Order. 

No objections were received within the time period provided.

ACCORDINGLY,

1. We make final our findings and conclusions as stated in Order 2012-8-29 and award to 

Skymark Airlines Inc. the foreign air carrier permit with associated conditions attached to the 

Order (and attached as the Appendix to the present order), subject to the additional conditions 

that (1) in the conduct of the services authorized herein, Skymark Airlines Inc. must adhere to 

the provisions of the 2010 U.S.-Japan Memorandum of Understanding; and (2) while HanedaU.S. charters remain numerically limited under the 2010 U.S.-Japan Memorandum of 

Understanding, Skymark Airlines Inc., in accordance with 14 CFR §212.9(d), shall not perform 

any charter flights between Tokyo’s Haneda airport and the United States unless specific 

authority in the form of a statement of authorization for such charter(s) has been granted by the 

Department;
2. Unless disapproved by the President of the United States under 49 USC § 41307, this order 

shall become effective on the 61st day after its submission for section 41307 review or upon the 

date of receipt of advice from the President or his designee under Executive Order 12597 and 

implementing regulations that he or she does not intend to disapprove the Department’s order 

under that section, whichever occurs earlier;

1

3. To the extent not acted upon above, we dismiss all remaining requests for relief in Docket

DOT-OST-2010-0096; and

4. We will serve a copy of this order on Skymark Airlines Inc., the Embassy of Japan in 

Washington, D.C., the Federal Aviation Administration, and the U.S. Department of State.

By:

PAUL L. GRETCH

Director

Office of International Aviation

(SEAL)

Appendix

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

http://www.regulations.gov

 1 This order was submitted for review under 49 USC §41307, on September 18, 2012. The 61st day is November 19, 

2012. Since the President or his designee did not disapprove this order before that date, it became effective on 

November 19, 2012. 
Issued by

 Order 2012-11-23

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

--------------------------------------------------------

PERMIT TO FOREIGN AIR CARRIER

---------------------------------------------------------

Skymark Airlines Inc.

A Foreign Air Carrier of Japan

is authorized, subject to the following provisions, the provisions of Title 49 of the U.S. Code, 

and the orders, rules, and regulations of the Department of Transportation, 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 between any 

point or points in the United States and any point or points in a third country or 

countries, provided that such service constitutes part of a continuous operation, with

or without a change in aircraft, that includes service to or from Japan for the 

purpose of carrying local traffic to or from Japan. 

The holder shall also be authorized to engage in other charter trips in foreign air transportation, 

subject to the terms, conditions, and limitations of the Department’s regulations governing 

charters.

This permit and the exercise of the privileges granted in it shall be subject to the terms, 

conditions and limitations in both the order issuing this permit and the attachment to this order, 

and to all applicable provisions of any treaty, convention or agreement affecting international air 

transportation now in effect, or that may become effective during the period this permit remains 

in effect, to which the United States and the holder’s homeland are or shall become parties.

This permit shall be effective on November 19, 2012. Unless otherwise terminated at an earlier 

date pursuant to the terms of any applicable treaty, convention or agreement, this permit shall 

terminate (1) upon the dissolution or liquidation of the holder to whom it was issued; (2) upon 

the effective date of any treaty, convention, or agreement or amendment, which shall have the 

effect of eliminating the bilateral right for the service authorized by this permit from the service 

which may be operated by airlines designated by the Government of Japan (or, if the right is 

partially eliminated, then the authority of this permit shall terminate in like part); (3) upon the 

effective date of any permit granted by the Department to any other carrier designated by the 

Government of Japan in lieu of the holder; or (4) upon the termination or expiration of the 

applicable air services agreement between the United States and Japan. However, clause (4) of 

this paragraph shall not apply if prior to such termination or expiration, the foreign air 

transportation authorized herein becomes the subject of another treaty, convention or agreement 

to which the United States and Japan become parties.
The Department of Transportation has executed this permit and affixed its seal on September 18, 

2012.

By:

PAUL L. GRETCH

Director

Office of International Aviation

(SEAL)
Foreign Carrier Permit 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 known 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.

12/2007