UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

Issued by the Department of Transportation on March 13, 2013

NOTICE OF ACTION TAKEN -- DOCKET DOT-OST-2013-0009

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This serves as notice to the public of the action described below, taken by the Department official indicated (no 

additional confirming order will be issued in this matter).

Applicant: CEMAIR (PTY) LTD. (CemAir) Date Filed: January 10, 2013

Relief requested: Exemption under 49 USC §40109 to permit CemAir to engage in charter foreign air transportation 

to the extent necessary to provide long-term wet lease services to Tortug’Air S.A. (Tortug), using small aircraft.

1

CemAir further requests a statement of authorization under 14 CFR Part 212 to the extent necessary to engage in a 

long-term wet lease of its Bombardier CL600-2B19 aircraft to Tortug, for Tortug’s services between Haiti and the 

United States.

Applicant representative: Richard A. Asper, 954-763-4848 DOT analyst: Brett D. Kruger, 202-366-8025

Responsive pleadings: On January 18, 2013, IBC Airways, Inc. (IBC) filed an answer objecting to the applications of 

CemAir and Tortug. CemAir and Tortug filed a joint reply on January 21, 2013, to which IBC filed a surreply on 

January 30, 2013. On February 22, 2013, IBC withdrew its objections.

DISPOSITION

Action: Approved. Action date: March 13, 2013

Effective dates of authority granted: The exemption authority granted to CemAir is effective March 13, 2013, through 

March 13, 2014.

The statement of authorization granted to CemAir to wet lease to Tortug is effective March 13, 2013, through March 

13, 2014.

Basis for approval (bilateral agreement/reciprocity): Comity and reciprocity with South Africa.

Except to the extent exempted/waived, this authority is subject to the terms, conditions, and limitations of our standard 

exemption conditions (attached).

Special conditions/Remarks: We found that CemAir is operationally and financially qualified to conduct its proposed 

operations and is substantially owned and effectively controlled by citizens of its claimed homeland.2 3

 We also note that 

the applicant is properly licensed by its homeland to perform the proposed services. In addition, on January 29, 2013, the 

Federal Aviation Administration advised us that it knew of no reason why we should act unfavorably on the applicant’s 

request for exemption authority.

 1 Tortug has separately filed an application in Docket DOT-OST-2013-0003 for an exemption under 49 USC §40109 to engage in 

scheduled and charter foreign air transportation of persons, property, and mail between a point or points in Haiti and a point or 

points in the United States, using aircraft wet leased from a duly authorized and properly supervised U.S. or foreign air carrier. We 

are acting on that request concurrently. 2 CemAir states that it is 100% owned by a South African citizen. CemAir also states that its CEO is a South African citizen, and

four of its five key management personnel are South African citizens, with the remaining individual a British citizen. 3 The applicant has requested confidential treatment of its financial submissions, under the provisions of 14 CFR §302.12. Good 

cause having been shown, we will grant this request.
In the conduct of these operations, the applicant may only use aircraft designed to have maximum passenger capacity of 

not more than 60 seats and a maximum payload capacity of not more than 18,000 pounds. In addition, the statement of 

authorization granted to CemAir is subject to the condition that the applicant’s homeland must maintain an effective 

reciprocity statement in Docket DOT-OST-2006-24269 throughout the period of its long-term wet lease operation with 

Tortug.

Action taken by: Paul L. Gretch, Director, Office of International Aviation

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Under authority assigned by the Department in its regulations, 14 CFR Part 385, we found that (1) our action was consistent with

Department policy; (2) the applicant was qualified to perform its proposed operations; (3) grant of the authority was consistent with 

the public interest; and (4) grant of the authority would not constitute a major regulatory action under the Energy Policy and 

Conservation Act of 1975. To the extent not granted/deferred/dismissed, we denied all requests in the referenced Docket. We may 

amend, modify, or revoke the authority granted in this Notice at any time without hearing at our discretion.

Persons entitled to petition the Department for review of the action set forth in this Notice under the Department’s regulations, 14 

CFR §385.30, may file their petitions within seven (7) days after the date of issuance of this Notice. This action was effective 

when taken, and the filing of a petition for review will not alter such effectiveness.

An electronic version of this document is available on the World Wide Web at:

http://www.regulations.gov
Foreign Carrier Exemption Conditions

In the conduct of the operations authorized, the foreign carrier applicant(s) 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 

its homeland;

(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.

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