Order 20 1 2

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- 23

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C.

Issued by the Department of Transportation

o n the 18 th d ay of September , 20 1 2

Served: November 20, 2 0 12

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. § 4130 1

FINAL ORDER

By Order 20 1 2

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- 29

, issued August 22 , 2 0 1 2 , 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 20 1 2

- 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 t he present order)

, subject to the additional conditions that (1) in the conduct of the services authorized herein, Skymark Airlines Inc. mus t adhere to the provisions of the 2010 U.S.

- Japan Memorandum of Understanding; and (2) while Haneda

U.S. charters remain numerically limited under the 2010 U.S.

- Japan Memorandum of

U nderstanding, 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 Preside nt of the United States under 49 USC § 41307, this order

shall become effective on the 61 st 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 implement ing 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

- 20 1 0

- 0096 ; and

4

. We will serve a copy of this order on Skymark Airlines Inc., the Embassy of Ja pan 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)

Appen dix

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 , 20 1 2

. The 61 st day is November 19

, 20 1 2 . Since the President or his designee did not disapprove this order before that date, it became effective on

November 19 , 20 1 2

.Issued by

Order 201 2

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UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTAT ION

OFFICE OF THE SECRETARY WASHINGTON, D.C.



### -------------------------------------------------------- PERMIT TO FOREIGN AIR CARRIER



### --------------------------------------------------------- Skymark Airlines Inc.

A Foreign Air Carrier of Japan

is authori zed, 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 attachmen t 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 f rom 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 Dep artment 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 n ot 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) sha ll:

(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 Av iation 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 State s, contact its International Industry Representative (IIR) (formerly known 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 adeq uate 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 a uthority 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 waiv er 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

tran sportation 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 c laim 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, excep t 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 wit h 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 oth er 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 oth erwise transferred without explicit Department approval under Title 49 of the U.S. Code.

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