January 30, Applications of Tortug Air (DOT-OST ) and Cemair (DOT-OST )

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1 January 30, 2013 By Electronic Docket Filing U.S. Department of Transportation 1200 New Jersey Avenue, S.E. Washington, DC RE: Applications of Tortug Air (DOT-OST ) and Cemair (DOT-OST ) Dear Sirs: IBC Airways, Inc. (hereinafter "IBC"), pursuant to Department rule 302.6, respectfully seeks leave to file this surreply to the response that was submitted by the representatives (hereinafter "Applicants' Representatives") of Tortug'Air, S.A. (hereinafter Tortug Air ) and Cemair (Pty) Ltd. (hereinafter Cemair ) on January 21, 2013 and docketed on January 23, This surreply will assist the Department in its review of the pending applications by providing further relevant information and discussion, and therefore is supported by good cause. IBC's previously expressed concerns about the Tortug'Air and Cemair applications are reinforced by the intemperate response of the Applicants' Representatives. As the Department is aware, rule imposes standards of conduct upon practitioners before the Department. Yet, in an apparent effort to intimidate IBC, they raise claims about IBC that are extraneous to the dockets (as well as factually wrong); falsely accuse IBC of making "libelous" statements (that were in fact based on information submitted by Cemair); and ultimately demand that IBC s answer be withdrawn. Although IBC has every confidence that the Department will fairly review and appropriately respond to the issues implicated by the pending Tortug'Air and Cemair applications and the January 21 response submitted by Applicants Representatives, IBC specifically asks leave from the Department to supplement its January 18 answer by highlighting the following issues: As an initial matter, Applicants' Representatives seek to dispute IBC's standing by suggesting that IBC's own operations are non-compliant. The Department already is familiar with and has repeatedly approved the Part 380 charter prospectuses pursuant to which a related-butseparate company offers public charters for which IBC is the direct air carrier. 1 Likewise, FAA and foreign regulatory authorities are fully informed of the nature of IBC's operations. In any case, there should be no question that IBC is entitled to submit an answer in the pending dockets, because Department rule authorizes the filing of an answer by any person. 1 As the Department is well aware, pursuant to Part 298 of the Department s rules, an air taxi such as IBC may operate up to four flights per week pursuant to a schedule over any particular route; as previously noted, one such market for IBC is FLL-CAP, for which it acts as a direct air carrier pursuant to Part 380.

2 Applicants' Representatives assert that, for reciprocity purposes, wet lease operations are entirely subsumed within the term charters, and thus that the statement regarding charters recently submitted by South Africa in docket DOT-OST is sufficient to justify the proposed operations by Cemair. But past Department orders have specifically considered whether reciprocity for wet leases and not charters generally existed before authorizing wet lease operations by foreign carriers. See, e.g., Order ; Order IBC respectfully submits that the same standard should be applicable in this case. Applicants' Representatives assert that certain issues identified by IBC e.g., issues related to Cemair's safety record are matters not for DOT but for other U.S. and foreign agencies. But as the Department is well aware, its review of a carrier s application is intertwined with other agencies processes and the reviews typically proceed in parallel, not in sequence. 2 Moreover, the Department's requirements specifically incorporate safety-related inquiries (in 14 C.F.R ) such as a requirement that an applicant disclose if its home country is a signatory to the Chicago Convention and if its maintenance program complies with ICAO requirements. Further, 14 C.F.R (s) specifically requires the disclosure of any fatal accidents in which an applicant was "involved" in the prior five years. Applicants Representatives assert that the fatal accidents identified by IBC in its January 18 answer involved dry-leased aircraft, contrary to reports in mainstream media outlets, such as the BBC. But even if that assertion is correct, 3 it does not absolve Cemair of its disclosure obligation. IBC understands that in the interest of public safety, a full and complete answer to this regulation s broad query is mandatory, with the determination of the relevancy of any accident being a matter solely for the Department. Applicants' Representatives assert that the past involvement of its CEO in a fatal accident at Flightline Charter Services for which an inquiry found that Miles van der Molen as an individual shared responsibility is not relevant due to the passage of time. As previously noted, IBC does not dispute that Department regulations did not require the disclosure of his track record, but understands that the track record of a carrier s leadership in fact is very relevant. For example, in an August 4, 2009 letter in docket DOT-OST , the Department noted that the prior 2 IBC also notes that the Applicants Representatives ultimately concede that Cemair s ops specs, as submitted to the Department by Tortug Air, do not include an area of operations that would permit the proposed services. Accordingly, it would be an inefficient use of Department resources to proceed with Cemair s application until such time as adequate ops specs have been submitted to FAA. 3 IBC suggests that DOT not accept this account without further investigation. One of the pilots killed in the September 1, 2008 accident at the time was identified as a South African citizen by the name of Rudi Knoetze. See, e.g., Contemporaneous media reports specifically identified Knoetze as being an employee of Cemair. See, e.g., These articles are not consistent with the current assertion that the aircraft was operated by Airserv and that Cemair was only the dry lessor.

3 involvement of an applicant s CEO in an airline-related stock fraud scheme is especially troubling to us as it concerns [applicant s] compliance disposition and the Department declined to move forward with the application absent more information about his past activities. Likewise, in this case, the past activities of Cemair s CEO should be taken into consideration. Applicants Representatives also assert that IBC s mention of a November 3, 2001 accident involving GJ Air was inappropriate, because Miles van der Molen was no longer employed by GJ Air at that time. It was not IBC s intention to suggest an incorrect chronology, but it should be emphasized that the curriculum vitae submitted to the Department by Cemair states that his employment at GJ Air was during Thus the materials submitted by Applicants Representatives lack clarity as to the exact dates of his employment; generally, this is a matter about which the Department should seek clarification. Similarly, the Department should seek clarification specifically as to whether Miles van der Molen was still employed as GJ Air s Operations Manager at the time that its AOC was suspended, on January 26, 2001 an event which should independently be a matter of concern. 4 IBC does not believe that it is necessary to further address the matters already briefed in its answer and with which the Department is familiar, such as issues of authority, security, and compliance. For the reasons stated above and in its prior answer, IBC maintains its objection to the pending applications as presented to the Department and urges careful scrutiny by the Department of any further submissions in the pending dockets in light of the identified deficiencies and omissions. Sincerely, cc: Joseph Hutchings Senior Vice President, IBC Airways, Inc. 4 In connection with GJ Air, Applicants Representatives have suggested that they may bring a counteraction against IBC and assert that IBC independently should have verif[ied] the dates of Miles van der Molen s employment. IBC respectfully suggests that it was entitled to rely upon data that Cemair itself provided. Additionally, IBC notes that Miles van der Molen s public LinkedIn profile ( provides no mention of any employer prior to Cemair, much less the specific dates of his prior employment.

4 Olivier Jean Tortug Air Richard Asper C.A. Southerland Aviation Professionals Group, Inc. Robert Wirick American Airlines John Richardson Counsel for Amerijet Russel Pommer Atlas Air Alexander Van Der Bellen Sametta C. Barnett Delta Air Lines Ranjit Seth Robert Foster Evergreen International Airlines G. Bailey Leopard Angeline Garbuzinski Federal Express Corporation

5 Jonathan Hill J. Parker Erkmann Counsel for JetBlue Airways Corporation Mark Atwood Counsel for Kalitta Air and Xtra Airways James Tello Counsel for Miami Air International Malcolm L. Benge Counsel for North American Airlines and World Airways Kevin Montgomery Peter Beckett Polar Air Cargo Darrell Richardson Silver Airways John Fredericksen Sun Country Airlines Joanne Young David Kirstein Counsel for Spirit Airlines Dan Weiss United Airlines

6 Lorraine Halloway Gerald Murphy Counsel for United Airlines Anita Mosner Jennifer Nowak Counsel for United Parcel Service Howard Kass Benjamin Slocum US Airways Susan Kurland DOT Assistant Secretary for Aviation and International Affairs Robert Finamore DOT Division Chief, Foreign Air Carrier Licensing Todd Homan DOT Director of Aviation Analysis Barbara Hairston DOT Supervisory Dockets Officer John Allen Director, FAA Flight Standards Service James R. Jelinski Manager, Miami FAA International Field Office Joaquin Ochoa Miami FAA International Field Office

7 Wendell Albright Director, State Department Office of Aviation Negotiations Brian C. Abbott Department of Homeland Security - TSA brian.abbott@tsa.dhs.gov Airline Information Research info@airlineinfo.com