Order 2011-5-18

Served: May 26, 2011

Issued by the Department of Transportation

on the 26th day of May, 2011

Application of

 ATLAS AIR, INC. 

for a certificate of public convenience and necessity under 

49 U.S.C. § 41102 to engage in interstate charter air 

transportation of persons, property, and mail

 Docket DOT-OST-2009-0268

ORDER ISSUING CERTIFICATE

Summary

By this order, we (1) find that Atlas Air, Inc. (“Atlas”), is a citizen of the United States and is 

fit, willing, and able to provide interstate charter air transportation of persons, property, and mail, using 

two large aircraft; and (2) issue it a certificate of public convenience and necessity authorizing such 

operations, subject to conditions.

Background

Section 41102 of Title 49 of the United States Code (the “Transportation Code”) directs us to determine 

that applicants for certificate authority to provide interstate charter air transportation of persons, property 

and mail are “fit, willing, and able” to perform such transportation and to ensure that all operations 

relating to this authority conform to the provisions of the Transportation Code and the regulations and 

requirements of the Department. In making fitness findings, the Department uses a three-part test that 

reconciles the Airline Deregulation Act’s liberal entry policy with Congress’ concern for operational 

safety and consumer protection. The three areas of inquiry that must be addressed in order to determine 

a company’s fitness are whether the applicant (1) will have the managerial skills and technical ability to 

conduct the proposed operations, (2) will have access to resources sufficient to commence operations 

without posing an undue risk to consumers or their funds, and (3) will comply with the Transportation 

Code and regulations imposed by Federal and State agencies. We must also find that the applicant is a 

U.S. citizen.

On October 23, 2009, Atlas filed applications requesting authorization under 49 U.S.C. § 41102 in 

Dockets DOT-OST-2009-0267 and DOT-OST-2009-0268, to engage in interstate and foreign charter air 

transportation of persons, property, and mail. Atlas’ request for interstate authority lacked the required 

domestic service proposal, and therefore that application was suspended until Atlas provided such 

information to the Department. The company did, however, provide all the necessary fitness 

information for its proposed foreign charter passenger operations. Consequently, the Department found 

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C. UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION
2

Atlas fit for foreign charter passenger authority and issued to it an effective certificate authorizing such 

operations.1

On March 9, 2011, Atlas submitted a domestic service proposal in Docket DOT-OST-2009-0268.

 

2 The 

air carrier stated that it intends to complement its existing foreign charter passenger operations by 

providing domestic passenger charter services for the U.S. Military’s Air Mobility Command, and to 

supplement such usage with commercial charters, using the same leased B-747 series aircraft used in the 

air carrier’s foreign charter operations. Atlas indicates that it may acquire additional aircraft in the 

future for similar purposes as demand for its services increases. No objections to Atlas’ interstate 

charter application were filed in the docket.

As discussed below, our review of the information in Atlas’ application indicates that the air carrier is fit 

to hold the interstate charter passenger authority it seeks. We note that the interstate flights 

contemplated by Atlas are similar in scope to those it is currently conducting internationally. Under 

these circumstances, and because of the findings made below, we have decided that neither an oral 

evidentiary hearing nor a show-cause proceeding is necessary for us to make a decision in this case. 

Therefore, in accordance with 14 CFR § 302.210(a)(2) of our regulations, we will proceed directly to 

final approval of Atlas’ certificate for interstate charter passenger authority. 

FITNESS

The Company

Atlas is a corporation that was organized under the laws of the State of Delaware in April 1992. The 

applicant was found fit to conduct interstate and foreign scheduled all-cargo air transportation in 

November 1992 and commenced operations under this authority in March 1993.3 The air carrier holds a 

Federal Aviation Regulation (“FAR”) Part 121 operating certificate from the Federal Aviation 

Administration (“FAA”) and operates a fleet of 26 B-747 freighter aircraft on a scheduled basis between 

the U.S. and South America, and globally on a non-scheduled basis for other airlines, freight 

consolidators, and the U.S. military. Atlas also operates two B-747 passenger aircraft in foreign charter 

passenger air transportation from Houston, Texas, to Luanda, Angola, on behalf of the United States –

African Energy Association. 

Since receiving effective foreign charter passenger authority in May 2010, Atlas states that it has not 

undergone any material changes in areas affecting its fitness. The air carrier continues to be wholly 

owned by Atlas Air Worldwide, Inc. (“AAWW”), a publicly traded Delaware corporation with no single 

shareholder owning 10 percent or more of its outstanding voting stock. AAWW and Atlas remain under 

the same Board of Directors, all of whom are U.S. citizens. Additionally, there have been no changes to 

the applicant’s key management and technical personnel. 

 

1 See Order 2010-5-27, issued May 25, 2010.

2 On that same date, Atlas filed a motion for confidential treatment under 14 CFR § 302.12 (“Rule 12”) to withhold from 

public disclosure certain information filed in support of its application. A more detailed discussion regarding the applicant’s 

Rule 12 motion can be found in the CONFIDENTIAL TREATMENT section of this order. 

3 See Order 93-32-7, issued March 5, 1993.
3

As previously mentioned, Atlas intends to provide interstate charter passenger operations on behalf of 

the U.S. Military under which the government will compensate Atlas for its services without regard to 

the number of passengers carried. It has been the Department’s practice, with respect to fitness based on 

similar fee-for-service agreements, not to apply its standard financial fitness criteria in determining the 

company’s fitness.4 We see no reason not to follow the same practice here. However, we do require 

that such applicants demonstrate that they have sufficient financial resources to cover their pre-operating 

costs to commence operations.

According to its most recent 10-K filing with the Securities Exchange Commission (“SEC”), Atlas and 

its parent company had cash and cash equivalents of $588.9 million on deposit at December 31, 2010. 

For the last three years, AAWW has been profitable. For calendar years 2008, 2009, and 2010, the

company reported net income of $60.02 million, $76.15 million, and $142.95 million, respectively. 

Additionally, at December 31, 2010, AAWW had current assets of $727.43 million and current 

liabilities of $269.04 million, giving the company positive working capital of $458.38 million. The 

company also reported stockholder’s equity of $1.04 billion.

In support of its proposed operations, the applicant submitted a confidential supplement to its 

application, which included forecasts of its pre-operating costs and first-year revenues and expenses for 

its proposed charter operations. We have reviewed the applicant’s projected direct costs on a block hour 

basis against the costs reported by other air carriers operating similar aircraft, and believe them to be 

reasonable. Therefore, we find that the applicant continues to have access to sufficient financial 

resources to cover its pre-operating costs of the passenger service and operating costs for three months.

The applicant states that there are no actions or outstanding judgments against its key personnel nor have 

there been any charges of unfair, deceptive or anti-competitive business practices, or of fraud, felony or 

antitrust violations brought against any of these parties in the past ten years. 

A review of our records and other information available to us indicated that two changes affecting Atlas’ 

compliance disposition have occurred since the Department’s May 2010 issuance of effective foreign 

charter passenger authority to the applicant. First, the six open FAA investigations which were pending 

against Atlas are now closed and were resolved without a civil penalty imposed. Second, the FAA has 

opened two new investigations regarding Atlas’ operations - FAA case number 2011EA150031, which 

involves a maintenance violation which occurred on February 13, 2011, and FAA case number 

2011EA150047, which relates to Atlas improperly operating an aircraft on March 27, 2011, allegedly 

violating its certificate conditions. All other compliance issues remain the same as presented in the 

Department’s Show Cause Order in response to Atlas’ foreign charter passenger application, and are 

therefore incorporated here by reference.5

According to the FAA, the applicant has conducted its operations satisfactorily and the agency knows of 

no reason why the air carrier should not be granted the authority it seeks. Moreover, Atlas notes that 

neither it nor any of its key personnel have been involved in an accident or incident in the year 

preceding its application or at any time in the past which remains under investigation by the FAA, the 

National Transportation Safety Board, or the company itself.

 

4 See, for example, Order 2004-9-9, Chautauqua Airlines, Inc., and Order 2000-11-22, Potomac Air, Inc. 

5 See Order 2010-4-8, issued April 15, 2010.
4

In light of these circumstances, we tentatively find that Atlas has the proper regard for the laws and 

regulations governing its services to ensure that its aircraft and personnel conform to applicable safety 

standards and that acceptable consumer relations practices will be followed. 

Based on our review of the information available to us, we have determined that no significant changes 

affecting the air carrier’s fitness (i.e., management, financial condition, compliance disposition, or 

ownership) have occurred since the Department’s fitness finding of May 2010, and we have no other 

information at this time that leads us to conclude that Atlas is not fit, willing, and able to conduct its 

proposed interstate charter passenger operations. 

In light of the above, we find that Atlas is a U.S. citizen, that it continues to have a competent 

management team, that it has adequate financial resources to conduct its proposed interstate charter

passenger operations, and that it has a satisfactory compliance disposition to conduct the operations

proposed.

CERTIFICATE CONDITIONS AND LIMITATIONS

While we are making the certificate authority issued here effective immediately, Atlas’ ability to 

conduct interstate charter passenger operations with large aircraft under this certificate remains subject 

to its receipt of the appropriate approval for interstate charter passenger operations from the FAA. 

We remind Atlas of the requirements of 49 U.S.C. § 41110(e). Specifically, that section requires 

that, once an air carrier is found fit initially, it must remain fit in order to hold its authority. To be 

assured that certificated air carriers continue to be fit after effective authority has been issued to 

them, we require that they supply information describing any subsequent substantial changes they may 

undergo in areas affecting fitness.6 The compliance of the company with this requirement is essential if 

we are to carry out our responsibilities under section 41110(e).7

Moreover, as noted earlier, Atlas is currently limited to operations with no more than two large aircraft

in its passenger operations. We will continue our requirement that Atlas notify the Department in 

writing at least 45 days in advance of any planned expansion in its passenger fleet and demonstrate its 

fitness for such operations prior to implementing service with any additional aircraft. 

 

6 The air carrier may contact our Air Carrier Fitness Division to report proposed substantial changes in its 

operations, ownership, or management, and to determine what additional information, if any, will be required under section 

204.5. In addition, by notice dated July 21, 1998, the Department requested air carriers to provide a 30-day advance 

notification of any proposed change in ownership, restructuring, or recapitalization. If the air carrier fails to file this updated 

information or if the information fails to demonstrate that the air carrier will continue to be fit upon implementation of the 

substantial change, the Department may take such action as is appropriate, including enforcement action or steps to 

modify, suspend, or revoke the air carrier's certificate authority.

7 We also remind Atlas about the requirements of section 204.7 of our rules. This section provides, among other 

things, that (1) the certificate authority granted to a company shall be revoked if the company does not commence actual 

flying operations under that authority within one year of the date of the Department's determination of its fitness; (2) if the 

company commences operations for which it was found fit and subsequently ceases such operations, it may not resume 

certificated air carrier service unless its fitness has been redetermined; and (3) if the company does not resume operations 

within one year of its cessation, its authority shall be revoked for dormancy.
5

Finally, to aid the Department in monitoring the fitness of new air carriers, we ask that all newly 

certificated air carriers submit a detailed progress report within 45 days following the end of the first 

year of certificated interstate operations, to the Air Carrier Fitness Division. The report should include a 

description of the air carrier’s current operations (number and type of aircraft, principal markets 

served, total number of full-time and part-time employees), a summary of how these operations have 

changed during the year, a discussion of any changes it anticipates from its current operations during its 

second year, current financial statements,8 and a listing of current senior management and key technical 

personnel. The air carrier should also be prepared to meet with staff members of the Fitness Division to 

discuss its current and future operations. 

REQUEST FOR CONFIDENTIAL TREATMENT

On March 9, 2010, Atlas filed a motion for confidential treatment under 14 CFR § 302.12 (“Rule 12”) to 

withhold from public disclosure certain information filed in support of its interstate charter application. 

Specifically, Atlas requested confidential treatment of financial information and projections related to 

the operation of the single B-747-400 passenger aircraft leased primarily to allow Atlas to enter into the 

passenger charter market for the U.S. military and to operate commercial charters. 

Rule 12 instructs us to evaluate requests for confidential treatment in accordance with the standards of 

disclosure found in the Freedom of Information Act (5 U.S.C. section 552). Information may be 

withheld from disclosure under 5 U.S.C. 552(b)(4) if it is (1) commercial or financial, (2) obtained from 

a person outside of the government, and (3) privileged or confidential (Gulf and Western Industries, Inc. 

v. United States, 615 F.2d 527, 529 (D.C. Cir. 1979)).

There is no question that the information for which Atlas seeks confidential treatment is financial or 

commercial in nature and that it was obtained from a person outside the government. The remaining 

question is whether the information is privileged or confidential--whether “disclosure of the information 

is likely to have either of the following effects: (1) impair the Government’s ability to obtain necessary 

information; or (2) cause substantial harm to the competitive position of the person from whom the 

information was obtained” (National Parks and Conservation Association v. Morton, 498 F.2d 765, 770 

(D.C. Cir. 1974)). Further, to be privileged or confidential, the information must not be of the type that 

is usually released to the public (Gulf and Western Industries, Inc. v. United States, 615 F.2d 527, 530 

(D.C. Cir. 1979)). 

Based on our review of the information, we grant Atlas’ request for confidential treatment. The 

information contained in the confidential submission includes itemized start-up and on-going expenses 

associated with the lease and operation of the single aircraft. We agree that the release of such material 

would allow Atlas’ competitors and others to readily calculate the underlying economic terms and Atlas’ 

competitors could then use this information to undermine its relationship with its customers by offering 

more attractive terms. The information for which Atlas seeks confidential treatment is similar to that for 

which we have granted confidential treatment in the past, and we see no reason not to do so here.

 

8 These financial statements should include a balance sheet as of the end of the company’s first full year of actual 

certificated operations and a twelve-month income statement ending that same date.
6

ACCORDINGLY,

1. We find that Atlas Air, Inc., is fit, willing, and able to engage in interstate charter air transportation 

of persons, property, and mail. 

2. We issue a certificate of public convenience and necessity to Atlas Air, Inc., to engage in interstate 

charter air transportation of persons, property, and mail, subject to the Terms, Conditions, and 

Limitations attached. 

3. We direct that should Atlas Air, Inc., wish to operate more than two large aircraft in its passenger 

operations, it must first provide the Department with at least 45-days’ notice and demonstrate its fitness 

for such operations.

4. We grant the request from Atlas Air, Inc. to afford confidential treatment to financial information 

and projections related to the operation of a B-747-400 series aircraft. 

5. We will serve a copy of this Order on the persons listed in Appendix A. 

By:

SUSAN L. KURLAND

Assistant Secretary

for Aviation and International Affairs

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

http://www.regulations.gov
Certificate of Public Convenience and Necessity for

Interstate Charter Air Transportation

This Certifies That

ATLAS AIR, INC.

is authorized, subject to the provisions of Subtitle VII of Title 49 of the United 

States Code, the orders, rules, and regulations issued thereunder, and the 

attached Terms, Conditions, and Limitations, to engage in interstate charter air 

transportation of persons, property, and mail.

This Certificate is not transferable without the approval of the Department of 

Transportation.

 

 

 By Direction of the Secretary

Issued by Susan L. Kurland

On Assistant Secretary for 

Effective on Aviation and International Affairs
Attachment 

Terms, Conditions, and Limitations

ATLAS AIR, INC.

is authorized to engage in interstate charter air transportation of persons, property and mail 

between any point in any State, territory, or possession of the United States or the District of 

Columbia, and any other point in any of those entities.

This authority is subject to the following provisions:

(1) The holder shall at all times conduct its operations in accordance with the regulations 

prescribed by the Department of Transportation for the services authorized by this certificate, 

and with such other reasonable terms, conditions, and limitations as the Department of 

Transportation may prescribe in the public interest. 

(2) The holder's authority under this certificate is effective only to the extent that such 

operations are also authorized by the Federal Aviation Administration (FAA), and comply with 

all U.S. Government requirements concerning security, including, but not limited to 

49 CFR Part 1544. ∗∗

(3) The holder shall at all times remain a "Citizen of the United States" as required by 

49 U.S.C. 40102(a)(15).

(4) The holder shall maintain in effect liability insurance coverage as required under 

14 CFR Part 205. Failure to maintain such insurance coverage will render a certificate 

ineffective, and this or other failure to comply with the provisions of Subtitle VII of Title 49 of the 

United States Code or the Department's regulations shall be sufficient grounds to revoke this 

certificate.

(5) The holder is not authorized to engage in air transportation operations between points 

within the State of Alaska.

(6) Should the holder propose any substantial change in its ownership, management, or 

operations (as defined in 14 CFR 204.2(l)), it must first comply with the requirements of 

14 CFR 204.5.

 

∗∗ To assure compliance with all applicable U.S. Government requirements concerning security, the 

holder shall, before commencing any new service (including charter flights) to or from a foreign airport, 

contact its Principal Security Inspector (PSI) to advise the PSI 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.
2

(7) In the event that the holder commences operations for which it was found "fit, willing, 

and able" and subsequently ceases all such operations, its authority under all certificates held 

shall be suspended under the terms of 14 CFR 204.7 and the holder may neither recommence 

nor advertise such operations unless its fitness to do so has been redetermined by the 

Department. Moreover, if the holder does not resume operations within one year of its 

cessation, its authority shall be revoked for dormancy.
Attachment A

SERVICE LIST FOR ATLAS AIR INC

MR RUSSELL POMMER

ASSOCIATE GENERAL COUNSEL AND SENIOR 

DIRECTOR OF REGULATORY AFFAIRS

ATLAS AIR INC

1147 PENNSYLVANIA AVENUE NW

SUITE 875

WASHINGTON DC 20006

MR PETER LYNCH

ASST CHIEF COUNSEL FOR 

ENFORCEMENT AGC 300

FEDERAL AVIATION ADMINISTRATION

800 INDEPENDENCE AVENUE SW

WASHINGTON DC 20591

MR ADAM KOKAS

SENIOR VICE PRESIDENT GENERAL COUNSEL

AND CHIEF HUMAN RESOURCES OFFICER

ATALS AIR INC

200 WESTCHESTER AVENUE

PURCHASE NEW YORK 10577-2543

MR WILLIAM WEBER

CERTIFICATION SECTION MANAGER

FAA AFS 900

45005 AVIATION DRIVE SUITE 131

DULLES VA 20166

MR ALLEN TAYLOR

POI FOR ATLAS AIR INC

FAA NEW YORK FSDO 15

900 STEWART AVENUE

GARDEN CITY NEW YORK 11530

MS ANNE SUISSA RTS 42

OFFICE OF AIRLINE INFORMATION

DOT/RITA/BTS E-34

1200 NEW JERSEY AVENUE SE

WASHINGTON DC 20590