UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C.

Issued by the Department of Transportation on March 13 , 20 1 3



### NOTICE OF ACTION TAKEN

-- DOCKET DOT

- OST

- 20 1 3

- 0 003

_____________________________________________ ___________________________________________________ ________ 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 : TORTUG’AI R , S.A. ( Tortug ) Date Filed: January 3

, 2 0 1 3

, as supplemented February 28, 2013

Relief requested: E xemption under 49 USC § 4 0109 to engage in (1) scheduled and charter foreign air transportation of persons, property and mail between a point or poin ts in Haiti and a point or points in the United States , and (2) charter foreign air transportation of persons, property and mail pursuant to 14 C.F.R. Part 212 of the Department’s regulations

, using aircraft wet leased from a duly authorized and properly s upervised U.S. or foreign air carrier. 1

Applicant representative: Richard A. Asper

, 954

- 763

- 4848 DOT ana lyst: Brett D. Kruger

, 202

- 366

- 8025

Responsive pleadings: On January 18, 2013, IBC Airways, Inc. ( IB C) filed an answer objecting to the applications of Tortug and Cem A ir . Tortug and Cem A ir 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: March 13 , 2013 , through March 13 , 2014

.

Basis for approval (bil ateral agreement/reciprocity): Comity and recipr ocity with Haiti.

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 Tortug is operationally and financia lly 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.

Tortug m ay conduct the operations authorized here only by using aircraft wet

- leased from a duly authorized and properly supervised U.S. or foreign air carrier. Tortug may not conduct U.S. operations with its own aircraft and crews without further action by the De partment. 4

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

1 Cem A ir (Pty) Ltd. (CemAir) , a foreign carrier of South Africa, has separately filed an application in Docket DOT

- OST

- 2013

- 0009 for corresponding exemption authority and a statement of authorization to engage in a long

- term wet lease with Tortug for Tortug’s proposed Haiti

- U.S. operations . We are acting on that request concurrently.

2 Tortug states that 34% of its shares are held by Clear Water Supply, a Haitian company that is, in turn, owned by two Haitian

citizens . Tortug further states that 18% of its shares are owned by a dual citizen of Haiti and the United States; 22% of its shares are owned by a citizen of Haiti; 18% are owned by a citizen of Belgium; and 8% are owned by a citizen of the Dominican Republic. In addition, Tortug states that its President/Director of Operations and its Administrative Director are citizens of Haiti, and its Vice President/CFO is a citizen of Belgium.

3 The applicant has requested confidential treatment of its financial submission s, under the provisions of 14 CFR §302.12. Good cause having been shown, we will grant this request.

4 Haiti is currently a Category 2 country under the FAA’s International Aviation Safety Assessment Program.________________________________________________________________________________________________________ Under authority assigned by the Department in its regulation s, 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 consist ent with the public interest; and (4) grant of the authority w ould 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 th is 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 regulati ons, 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 f rom 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 applicab le 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 ho lder 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 Inte rnational Principal Security Inspector) to advise the I IR 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 Ma nagement 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 equiva lent 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 wit h 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 t he 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 th e 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 schedu led, 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 S tates.

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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