Order 2010-10-10

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

Issued by the Department of Transportation

on the 9

th day of August, 2010

Served: October 18, 2010

Application of

TUI AIRLINES NEDERLAND, B.V. d/b/a Arkefly Docket DOT-OST-2010-0049

 

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

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

FINAL ORDER

By Order 2010-7-7, issued July 14, 2010, 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 were filed, all further procedural steps would be deemed waived, and the Department 

would enter an order (subject to Presidential review under 49 U.S.C. §41307) which would 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 the Order and award to TUI Airlines 

Nederland, B.V. d/b/a Arkefly the amended foreign air carrier permit with associated conditions 

attached to the Order (and attached as the Appendix to the present order);

2. Unless disapproved by the President of the United States under 49 U.S.C. §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 
2

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

under that section, whichever occurs earlier;1and

3. We will serve a copy of this order on TUI Airlines Nederland, B.V. d/b/a Arkefly, the 

Embassy of the Netherlands, in Washington, D.C., the Department of State, and the Federal 

Aviation Administration.

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 U.S.C. §41307 on August 9, 2010. The 61st day is October 12, 2010. 

Since the President or his designee did not disapprove this order before that date, it became effective on October 12, 

2010. 
Appendix B

Issued by

Order 2010-10-10

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

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

PERMIT TO FOREIGN AIR CARRIER

(as amended)

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

TUI AIRLINES NEDERLAND, B.V. d/b/a Arkefly

A Foreign Air Carrier of the Netherlands 

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:

Foreign scheduled and charter air transportation of persons, property and mail from any point 

or points behind any Member State of the European Union via any point or points in any 

Member State and via intermediate points to any point or points in the United States and 

beyond; 

Foreign scheduled and charter air transportation of persons, property and mail between any 

point or points in the United States and any point or points in any member of the European 

Common Aviation Area; 

Foreign scheduled and charter all-cargo air transportation between any point or points in the 

United States and any other point or points; 

Other charters pursuant to the prior approval requirements set forth in the Department’s 

regulations governing charters; and

Scheduled and charter transportation authorized by any additional route rights made available 

to European Community carriers in the future; provided, that the holder shall, before it 

commences any new service under such additional route rights, provide the Department with 

evidence that it holds a homeland license for that new service (unless it has already provided 

such evidence to the Department). Such evidence shall be filed in Docket DOT-OST-2010-

0049.

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 October 12, 2010. 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 right for the service authorized by this permit from the service which 

may be operated by airlines of the European Community and its Member States (or, if the right is 

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

termination or expiration of the applicable air services agreement between the United States and 

the European Community and its Member States. However, clause (3) 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 

the European Community and its Member States become parties.

The Department of Transportation has executed this permit and affixed its seal on August 9, 

2010.

By:

PAUL L. GRETCH

Director

Office of International Aviation

(SEAL)
Foreign Air Carrier Permit Conditions

In the conduct of the operations authorized, the foreign carrier applicant 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 a Member State of the European Union;

(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.

EU carrier 01/2008