BEFORE THE DEPARTMENT OF TRANSPORTATION

WASHINGTON, D.C.

Application of COMPAGNIE AÉRIENNE INTER RÉGIONALE EXPRESS (CAIRE) for an exemption under 49 U.S.C. § 40109 and a foreign air carrier permit under 49 U.S.C. § 41301 (Guadeloupe/Martinique/St. Martin-San Juan) ) ) ) ) ) ) ) ) Docket DOT-OST-2013-0200

RESPONSE OF COMPAGNIE AÉRIENNE INTER RÉGIONALE EXPRESS (CAIRE) TO “MOTION TO DENY” OF MR. SERGE BARDER

Communications with respect to this document should be addressed to:

Robert E. Cohn HOGAN LOVELLS US LLP 555 Thirteenth Street, NW Washington, DC 20004 +1 202 637 4999 (telephone) +1 202 637 5910 (fax) robert.cohn@hoganlovells.com Counsel for COMPAGNIE AÉRIENNE INTER RÉGIONALE EXPRESS (CAIRE)

February 6, 2014BEFORE THE DEPARTMENT OF TRANSPORTATION

WASHINGTON, D.C.

Application of COMPAGNIE AÉRIENNE INTER RÉGIONALE EXPRESS (CAIRE) for an exemption under 49 U.S.C. § 40109 and a foreign air carrier permit under 49 U.S.C. § 41301 (Guadeloupe/Martinique/St. Martin-San Juan) ) ) ) ) ) ) ) ) Docket DOT-OST-2013-0200

RESPONSE OF COMPAGNIE AÉRIENNE INTER RÉGIONALE EXPRESS (CAIRE) TO “MOTION TO DENY” OF MR. SERGE BARDER Compagnie Aérienne Inter Régionale Express (CAIRE) hereby responds to the late and unauthorized Answer (styled as a “Motion to Deny”) to its application for a foreign air carrier permit and exemption, filed by Mr. Serge Barder on February 3, 2014. Mr. Barder’s pleading was filed nearly two months after answers to the application were due. He has not asserted any basis, much less good cause, for his extremely late and otherwise unauthorized response to CAIRE’s application. Nonetheless, in the event the Department accepts Mr. Barder’s unauthorized filing, CAIRE requests leave to submit this response to address the false, unfounded and irrelevant allegations contained in Mr. Barder’s submission, to ensure a complete and accurate record. CAIRE will limit its response to those issues raised in Mr. Barder’s “Motion” dated February 3, 2014,Response of CAIRE Page 2
and will not address his previous “Petition for Objecting,” which he asked to be removed from the docket. 1 In response to Mr. Barder’s Motion, CAIRE states as follows: 1. Mr. Barder’s underlying interest in CAIRE’s application is unclear, but he opens his pleading by claiming that he previously held an “executive position” with CAIRE. That assertion is false. He has never been an officer or employee of CAIRE in any capacity. 2. Mr. Barder makes various accusations that CAIRE failed to provide complete, correct or sufficient information in its application. On the contrary, CAIRE provided all information required under DOT’s U.S.-EU Reciprocal Recognition Procedures Notice dated February 19, 2009. Its application contains no misleading or inaccurate information. CAIRE is an airline based in a French overseas territory covered by the EU-U.S. “Open-Skies” Air Transport Agreement, and is duly licensed by the DGAC of France. As such, CAIRE is, without question, eligible to apply for DOT authority under the abbreviated U.S.-EU Reciprocal Recognition Procedures. Mr. Barder offers no legitimate reason for the Department to require CAIRE to file additional information under 14 C.F.R. § 211.20, beyond what is required under DOT’s U.S.-EU Reciprocal Recognition Procedures Notice. 3. Mr. Barder cryptically asserts that he will have some type of “additional and confidential information” to present to the Department following CAIRE’s

1 Since Mr. Barder’s initial “Petition” was also unauthorized, CAIRE does not object to its removal from the docket.Response of CAIRE Page 3
submission of a new application containing additional financial and citizenship information. The Department should reject Mr. Barder’s tactic to delay the processing of CAIRE’s permit/exemption authority, to which CAIRE is entitled under the EU-U.S. open-skies agreement. CAIRE has already filed a complete application in accordance with the U.S.-EU Reciprocal Recognition Procedures Notice, and Mr. Barder has offered his comments regarding that application (albeit in a very untimely and irregular manner). CAIRE should not be burdened with the requirement to file additional, unnecessary information, nor should Mr. Barder be afforded any additional opportunity to respond. 4. Mr. Barder’s ridiculous attempt to call into question the legitimacy of the OST Form 4523 submitted by CAIRE is completely misguided. The Counterpart Agreement was executed by Mr. Serge Tsygalnitzky, who was duly appointed

as Directeur Général Délégué (that is the French equivalent to a CEO) by CAIRE’s Board of Directors on June 4, 2013. Pursuant to Article L225-56 of the French commercial code (as modified by law N 2001-420, May 15, 2001- Article 107), the “delegated” Director General (considered to be the Chief Executive Officer) has the same authority as the Director General. Mr. Tsygalnitzky is unquestionably legally authorized by the Company to execute the counterpart agreement on CAIRE’s behalf. Mr. Christian Marchand is CAIRE’s Chairman of the Board and Directeur Général . He presided over the June 2013 Board meeting at which Mr. Tsygalnitzky was appointed as Directeur Général Délégué, authorizing him to act on behalf of the company.Response of CAIRE Page 4

5. It is clear that Mr. Barder does not understand, and as a result, mischaracterizes, airline trade name practices and requirements. It is a common and accepted global practice for air carriers to operate under various trade names. CAIRE has operated under the trade names Air Antilles Express and Air Guyane Express in accordance with its homeland requirements. In fact, CAIRE’s Air Operator Certificate issued by the DGAC expressly authorizes CAIRE to use the trade names “Air Guyane Express” and “Air Antilles Express.” See Exhibit 1, attached. For its part, DOT only requires that U.S. and foreign air carriers register the trade names they intend to use in accordance with 14 C.F.R Part 215. CAIRE fully complied with this requirement by including its two trade names in its DOT application. Mr. Barder’s vague claims of “branding confusion,” non-compliance and public confusion are wholly without merit. 6. CAIRE has not advertised the planned services and CAIRE’s website does not list San Juan flights. Although CAIRE’s non-U.S. facing website briefly listed flights, that is no longer the case, and no sales of San Juan flights have been registered with the Company. 7. With respect to the energy information specified in 14 C.F.R. § 313.5(a), CAIRE’s application for authority to conduct small aircraft operations between points in the Caribbean will not involve a near-term net annual change in aircraft fuel consumption exceeding 10 million gallons, meaning DOT approval would not constitute a “major regulatory action” under the Energy Policy andResponse of CAIRE Page 5
Conservation Act. No additional information or analysis is needed for the Department to make a determination that approval of CAIRE’s application would not constitute a major regulatory action. 8. Contrary to Mr. Barder’s assumption, CAIRE does not need to submit a Family Assistance Plan under 49 U.S.C. § 41313. CAIRE proposes to conduct operations in foreign air transportation using only small aircraft with a maximum passenger capacity of less than 60 seats and, pursuant to DOT Order 98-1-31, issued February 3, 1998, is exempt from the requirement to file a Family Assistance Plan.2 9. CAIRE submits that Mr. Barder’s attempt to mislead the Department with fallacious and unfounded claims constitutes an improper attempt to disrupt the fair and orderly processing of CAIRE’s DOT application in violation of the Department’s Rules of Conduct. 14 C.F.R. §§ 300.5 and 6. CAIRE believes that Mr. Barder’s submission is a spurious effort to somehow influence a pending private commercial dispute with CAIRE, which is currently being litigated in France. Mr. Barder’s “Motion” should be summarily denied. Mr. Barder has a history of filing improper Department submissions. In 2002, he filed an objection to an application of Edelweiss Air, a Swiss airline, making allegations about a commercial dispute. Mr. Barder subsequently withdrew

2 While not a substantive issue, Mr. Barder questions the adequacy of CAIRE’s service list. CAIRE’s service list included what its representative believed to be the U.S. certificated air carriers that were required to be served. The Department did not advise CAIRE of any additional service requirements in accordance with 14 C.F.R. § 302.203(c) or 302.304(b)(5). Moreover, a notice regarding CAIRE’s application was published in the Federal Register on December 3, 2013, inviting interested persons to file comments. 78 Federal Register 72747, December 3, 2013.Response of CAIRE Page 6
his submission. If he continues his efforts to delay and impede the fair and orderly processing of CAIRE’s application, CAIRE may seek sanctions under 14 C.F.R. § 300.20. In conclusion, the Department should not countenance Mr. Barder’s improper attempt to delay the processing of CAIRE’s routine application filed under the U.S.-EU Reciprocal Recognition Procedures, nor should CAIRE be required to submit additional information. Mr. Barder has provided no credible information that calls into question the merits of CAIRE’s application. Any additional unauthorized pleadings by Mr. Barder should be soundly rejected by the Department, and CAIRE’s application should be granted without further delay. Respectfully submitted,

______________________________ Robert E. Cohn HOGAN LOVELLS US LLP Counsel for Compagnie Aérienne Inter Régionale ExpressCERTIFICATE OF SERVICE I hereby certify that the foregoing Response of CAIRE was served this 6th day of February, 2014, upon the following addressees:
atc@prw.net serge.barder@gmail.com howard.kass@aa.com francis.heil@aa.com sascha.vanderbellen@delta.com dan.weiss@united.com gfoss@seaborneairlines.com ismael.bonilla@aerostarairports.com paul.gretch@dot.gov robert.finamore@dot.gov brett.kruger@dot.gov urskr@state.gov

Jonathan Echmalian