January 21, 2013 TO DOT & WHOM IT MAY CONCERN:

Transcription

1 United States Department of Transportation ( DOT ) 1200 New Jersey Avenue, S.E. Washington, D.C United States of America ( USA ) Re: Response to IBC Airways, Inc. ( Respondent ) in a letter to the DOT of January 18, 2013 (the IBC Objection ), regarding the Applications of Tortug Air (DOT- OST ) and Cemair (DOT-OST ) (collectively hereinafter the Applicants Request for Exemption ) TO DOT & WHOM IT MAY CONCERN: The Aviation Professionals Group, Inc. ( APG ) are the duly authorized aviation regulatory representatives of Tortug Air S.A. ( Tortug ), located in the Republic of Haiti ( Haiti ); and CemAir (Pty) Ltd. ( Cemair ), located in the Republic of South Africa ( South Africa ) (collectively, the Applicants ). The Applicants and APG are in receipt of the IBC Objection to Applicants Request for an Exemption to engage in the scheduled operation of flights to and from Cap Haitien International Airport, Haiti ( CAP ) and Fort Lauderdale, Florida, USA (the CAP-FLL Flights ) pursuant to a wet lease between Tortug and Cemair, as detailed in the Applicants Request for Exemption. The Respondent comingles purported DOT objections to the Applicants Request for Exemption with issues that may have been intended, in arguendo, to be proffered to the USA s Federal Aviation Administration ( FAA ), and/or Haiti s Office Nationale de L Aviation Civile of Haiti ( OFNAC ), and/or the USA s Transportation Security Administration ( TSA ), and/or the South Africa Civil Aviation Authority ( SACAA ), and/or the International Civil Aviation Organization ( ICAO ). In the second paragraph of the IBC Objection the Respondent claims standing relative to the Applicants Request for Exemption. Candidly, we are not sure if this is the case, in part because we are unsure of just who is objecting. Respondent holds FAA authority as an on demand air taxi, and while it mentions Part 298 in the IBC Objection (probably referring to its insurance filings), this is somewhat disingenuous, in that the Respondent is not a commuter airline as defined by the DOT and the FAA. The affiliate of IBC Airways, Inc., IBC Travel Inc., doing business as IBC Air ( IBC Air )(confusing, isn t it) holds authority from the DOT to sell travel under DOT s Part 380 public charter regulations ( IBC Public Charter Authority ). This letter is not the appropriate medium for challenging the international regulatory propriety of the Respondent for offering 3000 NE 30 th Place, Suite 107, Fort Lauderdale, FL USA Ph Fax info@aviation-professionals.com Website:

2 Page 2 of 9 scheduled international website sales of individual tickets as IBC Air, using IBC Airways as the provider, and whether OFNAC has properly been informed of the nature of this IBC Public Charter Authority as represented to the traveling public, including to the citizens of Haiti. We raise the issue now in this letter simply to ask DOT to reflect on this issue of Respondent s standing to object to Applicants Request for Exemption. APG is well acquainted with the historical practice of airlines in the USA objecting to foreign air carrier applications for service to the USA for competitive reasons in order to attempt to delay approval by the DOT of applications; although this practice has been largely found to be in disfavor in recent years. And we would have thought that an operator such as the Respondent, having enjoyed the historic benefits of providing service between the USA and Haiti, would have seen the further advantage of welcoming the first Haitian flag carrier from a country that USA policy strongly embraces for international development as a worthy competitor, to wit the Tortug CAP-FLL Flights. Ordinarily APG would simply refute the erroneous representations of the IBC Objection on a factual basis, and point out those that are inappropriate for DOT consideration. However, the inconsistencies, errors, mischaracterizations, regulatory misinterpretations, and libelous statements contained therein are so legion, that we find it necessary to employ some of the same rhetoric in this response; which response we will enumerate in the same fashion as the Respondent, and respond to each of the six (6) enumerated points made by IBC Airways (or IBC Air?), including the footnotes thereto, utilizing the same enumeration as Respondent, for ease of future reference: 1. Respondent suggests that Cemair may not have sufficient authority to operate the proposed flights, and then specifically refers, within Cemair s Operations Specifications to certain issues concerning wet lease operations and some vague footnoted references to internal matters of how the SACAA might engage in its technical oversight of the proposed operation. Respondent acknowledges that Cemair holds an Air Service License with the authority to operate international charter operations on a worldwide basis (the Cemair Air Service License ). Respondent is obviously unaware of the DOT regulatory procedure whereby one is approved to conduct operations as detailed in the Applicants Request for Exemption, the first step of which procedure involves securing from the DOT economic authority pursuant to 49 U.S.C and for said operation, subsequent to which applicant then secures technical authority from the FAA pursuant to Title 14 of the Code of Federal Regulations (the CFR s ), at CFR Part 129 thereof ( Part 129 Approval ); nor is Respondent seemingly aware that Cemair s submission of Ops Specs that include the proposed area of operation is a prerequisite for Part 129 Approval, but not for Applicants Request for an Exemption, which is the subject of this aspect of the IBC Objection. Further, Respondent also appears to be unaware that the Cemair Air Service License is the South African equivalent of the DOT s economic authority for operation and, therefore, is sufficient for the issuance by the DOT of an

3 Page 3 of 9 Exemption under 49 U.S.C , to operate the services proposed in Applicants Request for an Exemption. Cemair is in the process of the addition of the proposed area of operations to the Cemair Ops Specs, and will do so in conjunction with its application to the FAA for a Part 129 Approval. Respondent s suggestion that Cemair s authority from the SACAA should include approval of the wet lease operations now contemplated demonstrates a complete lack of understanding of the stated policy of the DOT to consider Cemair s operations pursuant to the CAP-FLL Flights as charter operations, only, thereby not requiring any type of approval of the wet lease by the SACAA. It is the duty of Tortug to obtain OFNAC regulatory approval of the wet lease, which OFNAC regulatory approval has already been obtained, and is included in the Tortug application for an exemption, DOT-OST Respondent s footnoted suggestions that the modality of the SACAA s safety oversight of Cemair s operation of the CAP-FLL Flights be vetted as part of Applicants Request for an Exemption is, frankly, absurd. The FAA will consider regulatory oversight issues in the Part 129 Approval process, which process is routinely conducted by the FAA, with numerous aviation regulatory understandings and treaties in place between the USA and South Africa. 2. The succinct answer to the second objection of Respondent is that a current reciprocity letter from South Africa does exist in the referenced Docket, at which reciprocity statement is sufficient for the authority requested in Applicants Request for DOT Authority. However, Respondent s naivety demands a more thorough response, in that Respondent also attempts to invoke certain completely erroneous interpretations of DOT s regulations, even suggesting a change to the regulations and policies of the DOT, as Respondent argues that somehow Cemair s operation of charter flights pursuant to Tortug s economic authority would not only demand some unspecified type of additional wet lease approval by the DOT on behalf of Cemair, but that Cemair and Tortug would somehow be required to produce a bond for said operations. Rather than challenge long-established DOT policy and regulations, perhaps Respondent should use the same fervor to prepare a defense of its use of IBC s Public Charter Authority to operate scheduled international flights to Haiti. 3. Cemair has not misrepresented its safety record, and Respondent s libelous accusations thereof, likely gleaned from internet innuendo, resemble inappropriate sound bites more than the statements of fact that would be commensurate with an appropriate objection to an application such as Applicants Request for Exemption; specifically: a. The accident referenced herein, which occurred on September 1, 2008, was not in an aircraft operated by Cemair but, rather, by Airserv

4 Page 4 of 9 International; Cemair was the dry lessor of the aircraft, only. This has been definitively concluded by both the SACAA and the NTSB, as noted in Exhibit 1 and Exhibit 2 to this letter, which exhibits contain the SACAA accident report referenced in the IBC Objection, CA18/2/3/8544 (the SACAA Report ), as well as an NTSB reference to the accident. How the Respondent interpreted said documents as proof that Cemair was the operator of the aircraft on a wet lease basis defies logic, and one can only conclude that Respondent s motivation was simply to cast doubt on the veracity of other elements of Cemair s application, which untruth actually has the opposite effect of casting greater doubt on the veracity of Respondent s spurious accusations, contained throughout the IBC Objection. However, for the avoidance of all doubt, note that in the SACAA Report, it specifically says that the aircraft was on lease to an operator in the Democratic Republic of Congo and that the operator provided a commercial service to the United Nations The operator of the aircraft, Airserv International, was the holder of the contract to provide a commercial service to the United Nations, was completely responsible for all operational aspects of the aircraft, and, as noted prior, Cemair was the lessor of the aircraft to that operator. Also note that the NTSB s reference to the accident, attached as Exhibit 2, clearly also identifies the operator of the aircraft as Airserv International, not Cemair. b. In a footnote to this IBC Objection point #3, the Respondent also draws attention to an accident that occurred on May 2, 2008, and again, utilizing only innuendo ( reportedly operated by other parties ) attempts to cast aspersion on the safety record of Cemair, even though the aircraft involved in this accident was in Kenyan registry, on a Kenyan Aircraft Operating Certificate ( AOC ) and dry-leased to the Kenyan AOC holder, only. Cemair had no involvement with or responsibility for the operations of said aircraft. Therefore, Cemair reasserts that during the last 5 years it has not been involved in any safety of tariff violations or had any fatal accidents, in full compliance with the requirements of 14 C.F.R (s). 4. In what is nothing more than a brazen attempt to disparage the reputation of Cemair, Respondent then acknowledges that the information it is about to relate does not comport with the regulatory requirements (occurred more than 13 years prior), yet offers up no justification for including such; so one can only conclude that the true intent of this is nothing more than a hail Mary pass ; i.e., since

5 Page 5 of 9 nothing that Respondent offers up in the entire IBC Objection is valid, the only tactic left to Respondent is a desperate smear campaign. Further, while Respondent s subpoints 1 through 7 contain certain grains of history (although MANY of the alleged facts of this case were vigorously denied and disputed with a plethora of contrary evidence), the allegations contained in subpoint 8 are patently false, libelous, and potentially the basis of a counteraction on the part of Cemair and Mr. van der Molen. The simple fact is that Miles van der Molen s tenure at GJ Air ended prior to the accident. Period. Respondent s failure to verify the facts of this situation prior to publishing the libelous accusations contained herein is inexcusable, and bespeaks much about the shoddy nature of Respondent s research and practices. 5. Either Respondent has no knowledge of the regulations of Haiti, the TSA or ICAO, or Respondent simply doesn t care that none of the regulatory guidance that it attempts to invoke in this point is correct. Simply put; a) OFNAC, which is Haiti s Civil Aviation Authority, makes no distinction between 30 and 50 seat operations at CAP; and b) of the ten ICAO airport safety categories contained in ICAO Annex 14, the aircraft of IBC Airways is a category 4, and Cemair s is category 5, and Respondent makes no suggestion about how CAP meets one category and does not meet the other; and c) while it is incumbent upon the Applicants to submit a TSA security plan, said TSA security plan is not a prerequisite to Applicants Request for an Exemption, but rather, is a prerequisite to the issuance of Cemair s Part 129 Approval, and will therefore be submitted by Applicant to the TSA at the appropriate time in the process. One again wonders whether Respondent s letter would have been more appropriately addressed elsewhere, in that Respondent once again attempts to create and force new regulations upon the DOT that would make the fulfillment of security requirements a predicate to any action by the Department. Curiously, APG is mindful that IBC Air (not IBC Airways) has applied to the DOT for approval pursuant to its IBC Public Charter Authority to operate a Boeing to CAP (an ICAO category 6 aircraft). One can only wonder about the hypocrisy of IBC Air (and/or IBC Airways). 6. The arguments in Respondent s final enumerated point are obviated by Applicants submission as part of Applicants Request for an Exemption, a duly executed OST Form And naturally Tortug and Cemair will comply with any and all DOT consumer protections required by the DOT. To suggest otherwise is simply more over the top bombastic rhetoric from the Respondent (or is it IBC Air?). For any number of reasons we would encourage the Respondent to (i) notify DOT of its withdrawal of the IBC Objection; and (ii) notify all served parties, and parties to this letter, of said withdrawal of the IBC Objection; and (iii) notify OFNAC of said withdrawal. In the second paragraph of the IBC Objection the Respondent refers to a level playing

6 Page 6 of 9 field. Respondent has been operating to and from Haiti long enough to know that the playing field for Haiti has not been level for a long time. Finally a true airline in Haiti, flying the flag of its country, has found a lawful and safe way to offer service between Haiti and the USA. For the Respondent to try to bite that hand is simply offensive and gratuitous. Respectfully submitted: AVIATION PROFESSIONALS GROUP, INC. (by and for Cemair and Tortug) C.A. Southerland President The foregoing response to IBC Airways was served on the following parties on January 21, 2013: Jean Marc Flambert Director General Office Nationale de L Aviation Civile Haiti jmflambert@ofnac.aero Olivier Jean Tortug Air o.jean@tortugair.com Miles van der Molen CEO of Cemair miles@cemair.co.za Robert Wirick American Airlines robert.wirick@aa.com John Richardson Counsel for Amerijet jrichardson@johnlrichardson.com

7 Page 7 of 9 Russel Pommer Atlas Air rpommer@atlasair.com Alexander Van Der Bellen Sametta C. Barnett Delta Air Lines sascha.vanderbellen@delta.com sametta.c.barnett@delta.com Ranjit Seth Robert Foster Evergreen International Airlines ranjit.seth@evergreenairlines.com robert.foster@evergreenairlines.com G. Bailey Leopard Angeline Garbuzinski Federal Express Corporation gbleopard@fedex.com anbird@fedex.com Jonathan Hill J. Parker Erkmann Counsel for JetBlue Airways Corporation jhill@dowlohnes.com perkmann@dowlohnes.com Mark Atwood Counsel for Kalitta Air and Xtra Airways matwood@cozen.com James Tello Counsel for Miami Air International jamestello@earthlink.net Malcolm L. Benge Counsel for North American Airlines and World Airways mlbenge@zsrlaw.com Kevin Montgomery Peter Beckett Polar Air Cargo kevin.montgomery@polaraircargo.com peter.beckett@polaraircargo.com

8 Page 8 of 9 Darrell Richardson Silver Airways drichardson@gosilver.com John Fredericksen Sun Country Airlines john.fredericksen@suncountry.com Joanne Young David Kirstein Counsel for Spirit Airlines jyoung@yklaw.com dkirstein@yklaw.com Dan Weiss United Airlines dan.weiss@united.com Lorraine Halloway Gerald Murphy Counsel for United Airlines lhalloway@crowell.com gmurphy@crowell.com Anita Mosner Jennifer Nowak Counsel for United Parcel Service anita.mosner@hklaw.com jennifer.nowak@hklaw.com Howard Kass Benjamin Slocum US Airways howard.kass@usairways.com benjamin.slocum@usairways.com Susan Kurland DOT Assistant Secretary for Aviation and International Affairs susan.kurland@dot.gov Robert Finamore DOT Division Chief, Foreign Air Carrier Licensing Robert.finamore@dot.gov

9 Page 9 of 9 Todd Homan DOT Director of Aviation Analysis todd.homan@dot.gov Barbara Hairston DOT Supervisory Dockets Officer barbara.hairston@dot.gov John Allen Director, FAA Flight Standards Service john.allen@faa.gov James R. Jelinski Manager, Miami FAA International Field Office james.r.jelinksi@faa.gov Joaquin Ochoa Miami FAA International Field Office joaquin.ochoa@faa.gov Wendell Albright Director, State Department Office of Aviation Negotiations albrightwi@state.gov Brian C. Abbott Department of Homeland Security - TSA brian.abbott@tsa.dhs.gov Richard A. Asper, J.D., Chairman Aviation Professionals Group, Inc. ricka@aviation-professionals.com Airline Information Research info@airlineinfo.com

10 EXHIBIT 1 Section/division Accident & Incident Investigation Division Form Number: CA 12-12a AIRCRAFT ACCIDENT REPORT AND EXECUTIVE SUMMARY Reference: CA18/2/3/8544 Aircraft Registration ZS-OLD Date of Accident 1 September 2008 Time of Accident 1405Z Type of Aircraft Beech 1900C (Aeroplane) Type of Operation Commercial Pilot-in-command Licence Type Commercial Age 58 Licence Valid Yes Pilot-in-command Flying Experience Total Flying Hours 2 031,2 Hours on Type Unknown Last point of departure Next point of intended landing Kisangani Aerodrome (Democratic Republic of the Congo) Bukavu Aerodrome (Democratic Republic of the Congo) Location of the accident site with reference to easily defined geographical points (GPS readings if possible) 7,8 nm Northwest of Bukavu aerodrome (GPS position: South 02 13,19 East ,75 elevation ft) Meteorological Information Thunderstorm activity prevailed in the area of the accident site. Number of people on board No. of people injured 0 No. of people killed Synopsis The aircraft, a Beech 1900C, which was registered in South Africa as ZS-OLD, was on lease to an operator in the Democratic Republic of the Congo (DRC). The operator provided a commercial service to the United Nations (UN) in the DRC by transporting UN personnel and cargo to various destinations in the country and neighbouring states on a daily basis. On 1 September 2008 the aircraft departed from Kisangani aerodrome at approximately 1200Z with 2 crew members and 15 passengers on board on an instrument flight rules (IFR) flight plan destined for Bukavu aerodrome, located in the east of the country. At 1400Z the crew of ZS-OLD established radio contact with the air traffic information service (ATIS) controller in the control tower at Bukavu, indicating that their estimated time of arrival (ETA) for Bukavu aerodrome was 1410Z and they were at flight level (FL) 210, 33 nm inbound. They were informed to obtain their descent clearance from Goma Control and to call back once released by Goma Control. At 1403Z Goma released the aircraft, which reported passing FL120. At 1406Z Bukavu tower called the aircraft, but there was no response. At 1415Z the tower at Bukavu sent an alert message to Kindu, Goma and Kisangani. The aircraft never arrived at its intended destination. An official search for the missing aircraft commenced the following morning and the wreckage was spotted from the air at 0538Z where it had hit mountainous terrain. All seventeen occupants had been fatally injured. Probable cause To be determined by the State of Occurrence as stipulated in ICAO Convention, Annex 13, Chapter 5, Paragraph 5.1 (The State of Occurrence shall institute an investigation into the circumstances of the accident/incident and be responsible for the conduct of the investigation). IARC Date Release Date CA 12-12a 23 FEBRUARY 2006 Page 1 of 2

11 EXHIBIT 2