F ORT L AUDERDALE • 500 SW 34 TH S TREET • F ORT L AUDERDALE , F LORIDA 33315 • T EL : (954) 848 2300 • F AX : (954) 848 2397 

### January 30, 2013

By Electronic Docket Filing

U.S. Department of Transportation 1200 New Jersey Avenue, S.E. Washington, DC 20590

RE: Applications of Tortug’Air (DOT-OST-2013-0003) and Cemair (DOT-OST-2013-0009)

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 subm itted by the representatives (hereinafter "Applican ts' Representatives") of Tortug'Air, S.A. (hereinafter “Tortug’Air”) and Cemair (Pty) Ltd. (hereinafter “Cemair”) on January 21, 2013 and docketed on Janua ry 23, 2013. This surreply will assist the Department in its review of the pending application s by providing further relevant information and discussion, and therefore is supported by good caus e.

IBC's previously expressed concerns about the Tortu g'Air and Cemair applications are reinforced by the intemperate response of the Applicants' Repr esentatives. As the Department is aware, rule 300.6 imposes standards of conduct upon practitioners bef ore the Department. Yet, in an apparent effort to intimidate IBC, they raise claims about IBC that ar e extraneous to the dockets (as well as factually wrong); falsely accuse IBC of making "libelous" sta tements (that were in fact based on information submitted by Cemair); and ultimately demand that IB C’s answer be withdrawn.

Although IBC has every confidence that the Departme nt will fairly review and appropriately respond to the issues implicated by the pending Tor tug'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 th e following issues:

• As an initial matter, Applicants' Representatives s eek to dispute IBC's standing by suggesting that IBC's own operations are non-compliant. The De partment already is familiar with and has repeatedly approved the Part 380 charter prospectus es pursuant to which a related-butseparate company offers public charters for which I BC is the direct air carrier. 1 

### Likewise, FAA and foreign regulatory authorities are fully informed o f 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 302.307 authorizes the fili ng 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 previousl y noted, one such market for IBC is FLL-CAP, for whic h it acts as a direct air carrier pursuant to Part 380.F ORT L AUDERDALE • 500 SW 34 TH S TREET • F ORT L AUDERDALE , F LORIDA 33315 • T EL : (954) 848 2300 • F AX : (954) 848 2397



### • Applicants' Representatives assert that, for recipr ocity purposes, wet lease operations are entirely subsumed within the term “charters,” and t hus that the statement regarding charters recently submitted by South Africa in docket DOT-OS T-2006-24269 is sufficient to justify the proposed operations by Cemair. But past Department orders have specifically considered whether reciprocity for wet leases – and not charte rs generally – existed before authorizing wet lease operations by foreign carriers. See, e.g. , Order 2004-4-21; Order 2000-12-15. IBC respectfully submits that the same standard should be applicable in this case.

• Applicants' Representatives assert that certain iss ues identified by IBC – e.g. , issues related to Cemair's safety record – are matters not for DOT bu t for other U.S. and foreign agencies. But as the Department is well aware, its review of a carri er’s application is intertwined with other agencies’ processes – and the reviews typically pro ceed in parallel, not in sequence. 2 

### Moreover, the Department's requirements specifically incorpor ate safety-related inquiries (in 14 C.F.R. § 211.20) – such as a requirement that an applicant d isclose if its home country is a signatory to the Chicago Convention and if its maintenance progr am complies with ICAO requirements.

• Further, 14 C.F.R. § 211.20(s) specifically require s 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 BB C. But even if that assertion is correct, 3 

### it does not absolve Cemair of its disclosure obligatio n. IBC understands that in the interest of public safety, a full and complete answer to this r egulation’s broad query is mandatory, with the determination of the relevancy of any accident bein g a matter solely for the Department.

• Applicants' Representatives assert that the past in volvement 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 req uire the disclosure of his track record, but understands that the track record of a carrier’s le adership in fact is very relevant. For example, in an August 4, 2009 letter in docket DOT-OST-2008- 0029, the Department noted that the prior

2 

### IBC also notes that the Applicants’ Representative s ultimately concede that Cemair’s ops specs, as submitted to the Department by Tortug’Air, do not i nclude 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 adequa te ops specs have been submitted to FAA.

3 

### IBC suggests that DOT not accept this account with out further investigation. One of the pilots kille d in the September 1, 2008 accident at the time was iden tified as a South African citizen by the name of Ru di Knoetze. See, e.g., http://www.iol.co.za/news/south-africa/sa-pilot-not -accounted-for-1.414824

. Contemporaneous media reports specifically identifi ed Knoetze as being an employee of Cemair. See,
e.g., http://www.news24.com/SouthAfrica/News/Dad-fears-fo r-missing-SA-pilot-20080904 . These articles are not consistent with the current assert ion that the aircraft was operated by Airserv and t hat Cemair was only the dry lessor.F ORT L AUDERDALE • 500 SW 34 TH S TREET • F ORT L AUDERDALE , F LORIDA 33315 • T EL : (954) 848 2300 • F AX : (954) 848 2397



### involvement of an applicant’s CEO in an airline-rel ated stock fraud scheme “is especially troubling to us as it concerns [applicant’s] compli ance disposition” – and the Department declined to move forward with the application absen t more information about his past activities. Likewise, in this case, the past activi ties 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 v an der Molen was no longer employed by GJ Air at that time. It was not IBC’s intention to sug gest an incorrect chronology, but it should be emphasized that the curriculum vitae submitted to t he Department by Cemair states that his employment at GJ Air was during “2000-2001.” Thus t he 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 clarificatio n. 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 sus pended, on January 26, 2001 – an event which should independently be a matter of concern. 4



### IBC does not believe that it is necessary to furthe r address the matters already briefed in its answer and with which the Department is familiar, s uch as issues of authority, security, and complianc e. For the reasons stated above and in its prior answe r, IBC maintains its objection to the pending applications as presented to the Department and urg es careful scrutiny by the Department of any further submissions in the pending dockets in light of the identified deficiencies and omissions.

Sincerely,

Joseph Hutchings Senior Vice President, IBC Airways, Inc.

cc:

4 

### In connection with GJ Air, Applicants’ Representat ives have suggested that they may bring a “counteraction” against IBC and assert that IBC ind ependently should have “verif[ied]” the dates of Miles van der Molen’s employment. IBC respectfully suggests that it was entitled to rely upon data th at Cemair itself provided. Additionally, IBC notes tha t Miles van der Molen’s public LinkedIn profile ( http://www.linkedin.com/pub/miles-van-der-molen/38/ 76a/b60 ) provides no mention of any employer prior to Cemair, much less the specific dates of hi s prior employment.F ORT L AUDERDALE • 500 SW 34 TH S TREET • F ORT L AUDERDALE , F LORIDA 33315 • T EL : (954) 848 2300 • F AX : (954) 848 2397



### Olivier Jean Tortug’Air o.jean@tortugair.com

Richard Asper
C.A. Southerland Aviation Professionals Group, Inc. ricka@aviation-professionals.com ca@aviation-professionals.com

Robert Wirick
American Airlines robert.wirick@aa.com

John Richardson Counsel for Amerijet jrichardson@johnlrichardson.com

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.comF ORT L AUDERDALE • 500 SW 34 TH S TREET • F ORT L AUDERDALE , F LORIDA 33315 • T EL : (954) 848 2300 • F AX : (954) 848 2397



### 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 Airwa ys mlbenge@zsrlaw.com

Kevin Montgomery
Peter Beckett Polar Air Cargo kevin.montgomery@polaraircargo.com peter.beckett@polaraircargo.com

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.comF ORT L AUDERDALE • 500 SW 34 TH S TREET • F ORT L AUDERDALE , F LORIDA 33315 • T EL : (954) 848 2300 • F AX : (954) 848 2397



### 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 Internatio nal Affairs susan.kurland@dot.gov

Robert Finamore DOT Division Chief, Foreign Air Carrier Licensing esta.rosenberg@dot.gov

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.govF ORT L AUDERDALE • 500 SW 34 TH S TREET • F ORT L AUDERDALE , F LORIDA 33315 • T EL : (954) 848 2300 • F AX : (954) 848 2397



### Wendell Albright Director, State Department Office of Aviation Negot iations albrightwi@state.gov

Brian C. Abbott Department of Homeland Security - TSA brian.abbott@tsa.dhs.gov

Airline Information Research info@airlineinfo.com