BEFORE THE 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF THE SECRETARY 

WASHINGTON, D.C.

Application of 

NIPPON CARGO AIRLINES CO., LTD. 

for exemption authority pursuant to 49 U.S.C. 

§ 40109 

Docket DOT-OST-2013- 

APPLICATION OF NIPPON CARGO AIRLINES CO., LTD. 

FOR EXEMPTION AUTHORITY 

Communications with respect to this document should be sent to: 

Don H. Hainbach 

Jason E. Maddux 

Garofalo Goerlich Hainbach PC 

1200 New Hampshire Avenue NW 

Washington, D.C. 20036 

Phone 202-776-3970 

Fax 202-776-3975 

dhainbach@ggh-airlaw.com 

jmaddux@ggh-airlaw.com 

Counsel for Nippon Cargo Airline Co., Ltd. 

July 19, 2013 

Notice: Any person who wishes to support or oppose this application may file an answer and 

serve that answer on above-named counsel and all persons served with the application by August 

5, 2013. 
BEFORE THE 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF THE SECRETARY 

WASHINGTON, D.C.

Application of 

NIPPON CARGO AIRLINES CO., LTD. 

for exemption authority pursuant to 49 U.S.C. 

§ 40109 

Docket DOT-OST-2013- 

APPLICATION OF NIPPON CARGO AIRLINES CO., LTD. 

FOR EXEMPTION AUTHORITY 

 Nippon Cargo Airlines Co., Ltd. (“NCA”) currently operates service to the United States 

pursuant to its foreign air carrier permit issued by DOT Order 1998-4-17. NCA’s foreign air 

carrier permit authorizes it to engage in scheduled foreign air transportation of property and mail: 

“Between any point or points behind Japan, via any point or points in Japan, and any 

intermediate point or points, and any point or points in the United States, and any point or points 

beyond.” NCA’s permit further authorizes it to engage in charter trips in foreign air 

transportation. Although NCA’s foreign air carrier permit authorizes it to engage in scheduled 

cargo services without prior DOT approval, Paragraph 3 of Order 1998-4-17 requires prior 

approval for third and fourth freedom cargo charters operated by NCA. Pursuant to section 

212.9(b)(1) of the Department’s regulations, NCA must obtain prior approval for fifth, sixth, and 

seventh freedom charters.1

 By this application, NCA is requesting removal of the current prior 

 

1

 Pursuant to section 212.9(c), the Department may issue blanket statements of authorization to 

foreign air carriers to conduct fifth freedom charters. 
2

approval requirement for third, fourth, and fifth freedom cargo charters, except with respect to 

flights operated by NCA to or from Tokyo International Airport (“Haneda”). 

 More specifically, NCA requests exemption authority under 49 U.S.C. § 40109 to the 

extent necessary to enable NCA to engage in foreign charter air transportation of 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. NCA requests that the exemption authority described above be issued 

expeditiously and that the authority remain effective for a period of at least two years. 

In support of this application, NCA states as follows: 

1. The 2010 MOU establishes an open skies regime between the United States and 

Japan. Pursuant to that open skies regime, the 2010 MOU provides for U.S. and Japanese 

carriers to conduct third, fourth, and fifth freedom charters between the United States and Japan. 

That authority is subject to a limited restriction applicable to charter flights to and from Haneda 

Airport in Japan. Each party’s carriers are limited to 600 annual flights to or from Haneda. 

2. Retention of the prior approval requirement for third, fourth, and fifth freedom 

charter flights is inconsistent with the terms of the 2010 MOU, and indeed the Department has 

implicitly acknowledged that the prior approval requirement should no longer be applicable. 

More specifically, except for flights to or from Haneda, the Department has not imposed the 

prior approval requirement when granting charter authority to Japanese carriers following 

implementation of the 2010 MOU. 2 Removal of the prior approval requirement also will allow 

 

2

 See Star Flyer, Inc., Notice of Action Taken, Docket DOT-OST-2012-0200 (Jan. 28, 2013); 

Skymark Airlines Inc., Order 2012-8-29, Docket DOT-OST-2010-0096 (Aug. 22, 2012). 
3

NCA to more quickly and efficiently respond to customer demand and provide more flexible 

service options, thereby benefitting the shipping public. 

3. By this application, NCA requests exemption authority, consistent with the 2010 

MOU, to engage in foreign charter air transportation of 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. NCA 

will utilize this authority to operate ad hoc cargo charters, supplementing NCA’s current 

scheduled service. NCA will operate these charters using Boeing 747 aircraft from its existing 

fleet. 

4. Grant of third, fourth, and fifth freedom cargo charter exemption authority, 

without any corresponding prior approval requirement (other than for flights serving Haneda), 

would be consistent with Department precedent as well as with the 2010 MOU.3

 Moreover, the 

requested exemption authority will allow NCA to expand its service options to the shipping 

public. Under those circumstances, removal of the prior approval requirement and grant of the 

requested exemption authority would be consistent with the public interest. 

5. NCA anticipates that grant of the requested authority will not result in aircraft fuel 

consumption exceeding 10 million gallons. Grant of the requested foreign air carrier permit and 

exemption authority would not constitute a major regulatory action under the Energy and 

Conservation Act of 1975, as defined in Section 313.4 of the Department’s regulations. 

 

3

 See Skymark Airlines Inc., Order 2012-8-29, Docket DOT-OST-2010-0096 (Aug. 22, 2012).
4

ACCORDINGLY, Nippon Cargo Airlines Co., Ltd. requests the Department remove the 

prior approval requirement for third, fourth, and fifth freedom charter flights (except with respect 

to charters between Haneda and the United States and only for so long as Haneda-U.S. charters 

remain subject to a numerical limitation under the 2010 U.S.-Japan Memorandum of 

Understanding) and further requests exemption authority to the extent necessary to enable NCA 

to engage in foreign charter air transportation of 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. 

 Respectfully submitted, 

Don H. Hainbach 

Jason E. Maddux 

GAROFALO GOERLICH HAINBACH PC 

Counsel for Nippon Cargo Airline Co., Ltd.

July 19, 2013 
CERTIFICATE OF SERVICE 

 I certify on this 19th day of July, 2013 a copy of the foregoing application has been 

served by electronic mail on the parties named below. 

 _________________________________ 

 Vanessa Krasniewicz 

Robert Wirick (American) robert.wirick@aa.com 

Francis Heil (American) francis.heil@aa.com 

John Richardson (Amerijet International) jrichardson@johnlrichardson.com 

Joan Canny (Amerijet International) jcanny@amerijet.com 

Russell Pommer (Atlas Air) rpommer@atlasair.com 

Dan Weiss (United) dan.weiss@united.com 

Steve Morrissey (United) steve.morrissey@united.com 

Jonathan Linde (United) jonathan.linde@united.com 

Nancy Sparks (FedEx) nssparks@fedex.com 

Courtney Felts (FedEx) cefelts@fedex.com 

John Palo (Evergreen) charters@evergreenairlines.com 

Ed Sauer (Evergreen) esauer@ssd.com 

Alexander Van der Bellen (Delta) sascha.vanderbellen@delta.com 

Sametta Barnett (Delta) Sametta.c.barnett@delta.com 

Kevin Montgomery (Polar) kevin.montgomery@polaraircargo.com 

Anita Mosner (UPS) Anita.mosner@hklaw.com 

Jennifer Nowak (UPS) jennifer.nowak@hklaw.com 

Jonathan Hill (Hawaiian) jhill@dowlohnes.com 

Parker Erkmann (Hawaiian) perkmann@dowlohnes.com 

 

John Allen (FAA) john.allen@faa.gov 

Krishna Urs (State Department) urskr@state.gov 

Bob Finamore (DOT) robert.finamore@dot.gov