Order 2011-8-26

Served: August 30, 2011

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

Issued by the Department of Transportation

on the 30th day of August, 2011

Essential Air Service at

CODY, WYOMING

Under 49 U.S.C. 41731 et seq. 

DOCKET DOT-OST-2011-0121

 

ORDER PROHIBITING TERMINATION OF SERVICE AND 

REQUESTING PROPOSALS

Summary

By this order, the Department is (a) prohibiting SkyWest Airlines (SkyWest), operating as 

Delta Connection (Delta Connection), from terminating its unsubsidized service at Cody and 

requiring that it continue one round trip a day until conclusion of this case and (b) requesting 

proposals from airlines interested in providing EAS at Cody beginning October 4, 2011 through 

approximately May 31, 2012, and from about October 5, 2012 through approximately May 31, 

2013, with or without subsidy. Proposals are due by September 7, 2011. (See Appendix A for 

a map.)

Background

Cody is an EAS community by virtue of its being listed on a certificated airline’s certificate on 

October 24, 1978, the date of enactment of the Airline Deregulation Act. Cody’s EAS 

determination guarantees the community a minimum of two round trips each weekday and each 

weekend with 58 seats in each direction with 15-seat or larger aircraft. 

Currently, Delta Connection operates two daily nonstop round trips (14 a week) to Salt Lake 

City on 30-seat Brasilia EMB-120 aircraft. In addition, SkyWest also operates service to 

Denver as United Express (United Express) providing one daily round trip on 50-seat Canadair
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regional jet aircraft on a year-round basis, and one additional daily round trip on 30-seat 

Brasilia EMB-120 aircraft from June through September.1 

On June 27, 2011, SkyWest filed a 90-notice of its intent to terminate service as Delta 

Connection to Salt Lake City, effective September 25.

Decision

This is a very unusual case because SkyWest’s remaining service to Denver as United Express 

fully meets the statutory service guarantee for four months of the year but not during the eight

month off-peak season when it traditionally reduces its service to one round trip a day, below 

the statutory minimum of two round trips a day, six days a week. The most logical result for 

the community would be for United Express to simply provide Cody with two round trips a day

to Denver on a year-round basis. We informally contacted United Express to inquire whether, 

given the significant amount of capacity that will be leaving the market, it would be willing to 

add that daily round trip. At this point, United Express is not willing to commit to increasing 

service in the off-peak season, and, consistent with Order 2004-4-12 dealing with seasonal 

service, we cannot prevent the carrier from implementing its seasonal service reduction. Thus, 

we are left with no other choice but to require Delta Connection to continue to provide one 

round trip a day to Salt Lake City during the eight-month, off-peak period from October 4, 

2011 through about May 31, 2012, or whenever United Express reinstates the second Denver 

round trip in 2012.

Request for Proposals

We are here providing interested carriers with some basic information to serve as guidance 

when they prepare their proposals, but we will not prescribe a precise format. We expect 

proposals to adequately describe the service being proposed and the annual amount of subsidy 

being requested. The applicants can make their own judgments as to the level of detail they 

wish to present; however, they might want to include proposed schedules as well as supporting 

data for their subsidy requests, such as projected block hours, revenues and expenses. We 

strongly encourage clear, well-documented proposals that will facilitate their evaluation by the 

affected community and the Department.2

Carriers are also welcome to propose more than one option, if they choose; they need not limit 

themselves to those requirements if they envision other, potentially more attractive service 

possibilities -- different hubs, frequency or equipment, for example -- with subsidy 

requirements that remain competitive. The community and air carriers are encouraged to work 

together in advance of the due date for proposals to craft a service pattern that is desirable to 

the community and meets the operational needs of the airlines.

 1 United Express service from October through May is negotiated annually and is provided through a minimum 

revenue guarantee contract subsidized by the Wyoming Aeronautics Division of the Wyoming Department of 

Transportation and the local community.

2 In selecting a carrier to provide subsidized essential air service, 49 U.S.C. 41733(c)(1) directs us to consider 

four factors: (1) service reliability; (2) contractual and marketing arrangements with a larger carrier at the hub; 

(3) interline arrangements with a larger carrier at the hub; and (4) community views. In addition, the 

Consolidated Appropriations Act, 2008, Public Law 110-161, provides that when selecting a carrier to provide 

EAS, the Department may consider the relative subsidy requirements, thus codifying a factor that we have 

considered since the inception of the program. Interested carriers should also be aware that our general 

provisions governing EAS will be included in the selection order as part of our authorization of subsidy for the 

selected service. Appendix C of this order contains those general provisions.
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Carriers should file their proposals no later than September 7, 2011. After that date, our staff 

will docket proposals, thereby making them public, and shortly afterwards will provide a 

summary of the proposals to the community and ask them for their final comments. We will 

give full consideration to all proposals filed in a timely manner. 

Interested carriers should prepare their proposals with every expectation that their initial 

proposals will also be their final and only proposals. We retain the discretion to negotiate 

proposals with carriers when we deem it desirable. We also retain the discretion to reject 

outright all unreasonable or unrealistic proposals and solicit a new round of proposals.

We are here requesting proposals from carriers interested in providing service, with or without 

subsidy support, beginning October 4, 2011. Because SkyWest’s service from June through 

September to Denver fully meets Cody’s EAS requirements, and its service from October

through May meets half of its minimum EAS requirements, we expect proposals that will 

provide only one round trip a day with 15-seat or larger aircraft from October 4, 2011, through 

approximately May 31, 2012, and from about October 5, 2012 through approximately 

May 31, 2013. In order to assist carriers in developing traffic and revenue projections for their 

proposals, we have provided a summary of historical passengers in Appendix B. We note that 

traffic has been increasing and averaged 93 enplanements a day for the year ended March 31, 

2011. We expect proposals for service to Salt Lake City, Denver, or any hub that offers access 

to the national air transportation system utilizing 15-seat or larger aircraft. We would also 

entertain proposals for two round trips a day with 8/9-seat aircraft. Should the community 

agree to aircraft with fewer than 15 passenger seats, in effect waiving their right to 15-seat or 

larger aircraft, we would consider the waiver to apply only to the two-year carrier-selection at 

hand, i.e. we would not assume that the community would waive their rights for all time when 

EAS is subsidized. As always, we will formally solicit the community’s views on any service 

options we receive before making a long-term carrier selection decision. 

New Filing Procedures

Carrier proposals should be submitted to the Department with all materials merged into a single 

document. In addition, because the document will be published on Regulations.gov, each page 

should be formatted to be viewed online.

Other Carrier Requirements

The Department is responsible for implementing various Federal statutes governing lobbying 

activities, drug-free workplaces and nondiscrimination.3 Consequently, all carriers receiving 

Federal subsidy to support essential air service must certify that they are in compliance with 

Department regulations regarding drug-free workplaces and nondiscrimination, and those 

carriers whose subsidies exceed $100,000 over the life of the rate term must also certify that 

they are in compliance with the regulations governing lobbying activities. All carriers that plan 

to submit proposals involving subsidy should submit the required certifications along with their 

 3 The regulations applicable to these areas are: (1) 49 CFR Part 20 – New restrictions on lobbying; (2) 49 CFR 

Part 21 – Nondiscrimination in federally-assisted programs of the Department of Transportation – Effectuation of 

title VI of the Civil Rights Act of 1964; 49 CFR Part 27 – Nondiscrimination on the basis of disability in programs 

and activities receiving or benefiting from Federal financial assistance; and 14 CFR Part 382 – Nondiscrimination

on the basis of disability in air travel; and (3) 49 CFR Part 29 – Government-wide debarment and suspension (nonprocurement) and government-wide requirements for drug-free workplace (grants).
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proposals. Interested carriers requiring more detailed information regarding these 

requirements, as well as copies of the certifications, should contact the Office of Aviation 

Analysis at (202) 366-5903. The Department is prohibited from paying subsidy to carriers that 

do not submit these documents.4

Community and State Comments

Civic officials are welcome to submit comments on the proposals at any time. As noted earlier, 

we will provide a summary of the proposals to the civic parties and ask them to submit their 

final comments shortly after September 7, the due date for carrier proposals.

This order is issued under authority delegated in 49 CFR 1.56a(f).

ACCORDINGLY,

1. We prohibit SkyWest Airlines operating as Delta Connection from suspending one round 

trip a day to Salt Lake City, at the end of the 90-day notice period, and require it to maintain 

service at the communities, as set forth in Appendix D, for an initial 30-day period through 

November 27, 2011, or until a carrier capable of providing reliable EAS actually begins 

service, whichever is first5; 

2. We request that carriers interested in providing essential air service at Cody, Wyoming,

submit their proposals, with or without subsidy requests, no later than September 7, 2011. The 

proposals should be emailed to: EAS@dot.gov with the title “Proposal to Provide Essential Air 

Service at Cody, Wyoming”;6

3. This docket will remain open until further order of the Department; and

 4 The certifications are also available on the web at http://ostpxweb.dot.gov/aviation/index.html.

5 In accordance with 49 U.S.C. 41734(c), we will extend Delta Connection’s service obligation for successive 30-

day periods as necessary until replacement service actually begins.

6 Questions regarding filings in response to this order should be directed to Michael Martin at 202-366-6494, or 

via email at michael.f.martin@dot.gov.
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4. The Department will serve a copy of this order on the mayor and airport manager of Cody, 

SkyWest Airlines, and the service list for this Docket.

By:

SUSAN L. KURLAND

Assistant Secretary for

Aviation and International Affairs

(SEAL)

An electronic version of this document is available online at

www.regulations.gov
Appendix A

Area Map
APPENDIX B

Historical Origin-Destination Plane Traffic1

Cody, Wyoming

Quarter Year Deplanements Enplanements

Total 

Traffic

Enplanements 

per Day

2 2008 6,171 5,614 11,785 76

3 2008 8,930 9,618 18,548 117

4 2008 5,845 6,126 11,971 76

1 2009 4,539 4,608 9,147 59

Annual 

Totals 25,485 25,966 51,451 82

2 2009 7,378 7,033 14,411 92

3 2009 8,781 9,540 18,321 116

4 2009 5,192 5,424 10,616 67

1 2010 3,794 3,909 7,703 50

Annual 

Totals 25,145 25,906 51,051 82

2 2010 7,329 6,913 14,242 91

3 2010 10,104 11,016 21,120 134

4 2010 6,303 6,599 12,902 82

1 2011 5,007 5,069 10,076 65

Annual 

Totals 28,743 29,597 58,340 93

 1 Source: USDOT Bureau of Transportation Statistics, TransStats Intermodal Database, Schedule T-100.
Appendix C

Example of General Terms and Conditions for Essential Air Service

The carrier understands that it may forfeit its compensation for any flights that it does not operate 

in conformance with the terms and stipulations of the rate order, including the service plans 

outlined in the order and any other significant elements of the required service, without prior 

approval. The carrier understands that an aircraft take-off and landing at its scheduled 

destination constitutes a completed flight; absent an explanation supporting subsidy eligibility 

for a flight that has not been completed, such as certain weather cancellations, only completed 

flights are considered eligible for subsidy. In addition, if the carrier does not schedule or operate 

its flights in full conformance with the order for a significant period, it may jeopardize its entire 

subsidy claim for the period in question. If the carrier contemplates any such changes beyond 

the scope of the order during the applicable period of these rates, it must first notify the Office of 

Aviation Analysis in writing and receive written approval from the Department to be ensured of 

full compensation. Should circumstances warrant, the Department may locate and select a 

replacement carrier to provide service on these routes. The carrier must complete all flights that 

can be safely operated; flights that overfly points for lack of traffic will not be compensated. In 

determining whether subsidy payment for a deviating flight should be adjusted or disallowed, the 

Department will consider the extent to which the goals of the program are met and the extent of 

access to the national air transportation system provided to the community.

If the Department unilaterally, either partially or completely, terminates or reduces payments for 

service or changes service requirements at a specific location provided for under this order, then, 

at the end of the period for which the Department does make payments in the stipulated amounts 

or at the stipulated service levels, the carrier may cease to provide service to that specific 

location without regard to any requirement for notice of such cessation. Those adjustments in 

the levels of subsidy and/or service that are mutually agreed to in writing by the Department and 

carrier do not constitute a total or partial reduction or cessation of payment.

Subsidy contracts are subject to, and incorporate by reference, relevant statutes and Department 

regulations, as they may be amended from time to time. However, any such statutes, regulations, 

or amendments thereto shall not operate to controvert the foregoing paragraph.

Funds are not currently available for performance under this solicitation beyond [DATE]. The 

Department’s obligation for performance under this solicitation beyond [DATE], is contingent 

upon the availability of appropriated funds from which payment for services can be made. No 

legal liability on the part of the Government for any payment may arise for performance under 

this order beyond [DATE], until funds are made available to the Department for performance. If 

funds are not made available for performance beyond [DATE], the carrier will receive notice in 

writing by the Department.

All claims for payment must be submitted within 60 days of the last day of service provided 

under this order.
Appendix D

Essential Air Service to be Maintained at Cody, Wyoming

Effective Period: October 29, 2011, until further Department action

Scheduled Service: One round trip a day to Salt Lake City

Aircraft: 30-seat Brasilia EMB-120