Order 2010-9-30

Served: September 30, 2010

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

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 September, 2010

Joint application of

SKYWEST AIRLINES, INC., 

ATLANTIC SOUTHEAST AIRLINES, INC., 

and EXPRESSJET AIRLINES, INC.

for an exemption from the provisions of 49 U.S.C. § 41105

Docket DOT-OST-2010-0224

ORDER GRANTING EXEMPTION

Summary

By this order, we exempt SkyWest Airlines, Inc. (“SkyWest Airlines”), Atlantic 

Southeast Airlines, Inc. (“ASA”), and ExpressJet Airlines, Inc. (“ExpressJet”), 

hereinafter the “Joint Applicants,” from the provisions of section 41105 of Title 49 of the 

United States Code (the Statute), subject to certain conditions.

Background 

On September 2, 2010, ASA and ExpressJet jointly filed an application for a pendente 

lite exemption from section 41105 of the Statute. The parties state that SkyWest, Inc. 

(“SkyWest”), the parent company of ASA and SkyWest Airlines, entered into an 

agreement with ExpressJet Holdings, Inc. (“ExpressJet Holdings”), the parent company 

of ExpressJet, under which ExpressJet Holdings will become a wholly owned subsidiary 

of ASA. According to the parties, upon closing, a wholly owned subsidiary of ASA will 

merge into ExpressJet Holdings with ExpressJet Holdings surviving as a direct wholly 

owned subsidiary of ASA. ASA and ExpressJet will then operate as separate entities for 

approximately 12 to 18 months after which ASA and ExpressJet intend to merge into a 

single operating company. 

On September 20, 2010, ASA and ExpressJet amended their application to include 

SkyWest Airlines, an affiliate of ASA related by common ownership.

1

 

1 The Joint Applicants also filed a motion requesting that the Department shorten the answer 

period to September 29, 2010. By letter dated September 24, 2010, the Joint Applicants advised 

us that there were no objections to its request for a shortened answer period. By Notice dated 
2

The Department has held that a stock acquisition resulting in common control of two or 

more air carriers having international route authority constitutes a de facto transfer 

subject to section 41105. The relief requested here would allow the Joint Applicants to 

operate under the common ownership of SkyWest pending the Department’s action on a 

contemporaneously filed de facto transfer application.2 In support of this request, the 

Joint Applicants state that, upon consummation of the transaction, while SkyWest 

Airlines, ASA, and ExpressJet will be subsidiaries of SkyWest, each will remain a 

separate entity and will be operated as separate companies. They further contend that 

grant of the exemption request would be consistent with the past practice of the 

Department. 

SkyWest Airlines holds interstate scheduled certificate authority, as well as interstate 

scheduled all-cargo authority,

3

blanket open-skies certificate authority,

4

and exemption 

authority to conduct foreign scheduled air transportation between Salt Lake City and 

Guadalajara, Mazatlan, San Jose del Cabo, and Puerto Vallarta, Mexico.5 The air carrier 

has also been designated under the U.S.-Mexico Air Transport Agreement to provide 

foreign scheduled air transportation in each of the above markets. 

ASA holds interstate scheduled certificate authority,

6

blanket open skies certificate 

authority,

7

and exemption authority to engage in foreign scheduled air transportation 

between points in the United States and points in Belize,

8

the Turks and Caicos,9and the 

Dominican Republic.

10 The air carrier also holds a route integration certificate. 

ExpressJet holds interstate scheduled certificate authority,

11 as well as a number of 

designations under the U.S.-Mexico Air Transport Agreement,

12 which it operates as 

 

September 24, 2010, the Department granted the Joint Applicants’ request for a shortened answer 

period, with answers due no later than September 29, 2010.

2 On September 2, 2010, concurrent with the Joint Applicants’ exemption request in Docket 

DOT-OST-2010-0224, SkyWest Airlines, ASA, and ExpressJet jointly filed an application in 

Docket DOT-OST-2010-0225 for the Department’s approval under 49 U.S.C. § 41105 of the de 

facto transfer of the economic authorities held by ExpressJet Airlines to ExpressJet under the 

ownership of SkyWest. No answers have been filed.

3

See Order 78-1-86 and Order 81-12-131. SkyWest Airlines’ interstate scheduled passenger 

and all-cargo certificate authority has been reissued, most recently by Order 98-7-6 and Order 85-

11-49, respectively.

4

See Order 2008-4-26.

5

See Notice of Action Taken, dated December 19, 2008, in Docket DOT-OST-2006-25495 

and Docket DOT-OST-2007-29016.

6

See Order 93-2-23. This authority was most recently reissued by Order 98-7-6. 

7

See Order 2008-4-26.

8

See Notice of Action Taken, dated May 13, 2010, in Docket DOT-OST-2006-25018.

9

See Notice of Action Taken, dated November 20, 2009, in Docket DOT-OST-2004-17960.

10 See Notice of Action Taken, dated July 15, 2009, in Docket DOT-OST-2006-24591. 

11 See Order 2002-4-8.

12 These designations include: Houston-Acapulco, Aguascalientes, Chihuahua, Ciudad del 

Carmen, Durango, Guadalajara, Huatulco, Ixtapa/Zihuatanejo, Leon/Guanajuato, Manzanillo, 
3

Continental Express pursuant to a code share agreement with Continental Airlines, Inc.

ExpressJet’s foreign operations are conducted under the provisions of section 206.5 of 

our rules (14 CFR 206.5), which permits air carriers holding an effective certificate 

issued under section 41102 of the Statute to operate under the exemption provisions of 14 

CFR 298 Subpart B when using aircraft having an original design capacity of no more 

than 60 passenger seats or 18,000 pound payload.

No answers opposing the Joint Applicants’ exemption request were filed. 

Decision

We have decided to grant the Joint Applicants’ request for an exemption from the 

provisions of section 41105 until we have ruled on the de facto transfer request. The 

Joint Applicants correctly noted that our grant of exemptions in cases such as this is 

contingent upon the air carriers involved, in this case SkyWest Airlines, ASA, and 

ExpressJet remaining separate and independently operated corporations until a ruling has 

been made in the underlying de facto transfer case. In this case, as in previous cases,13

we see no reason to withhold exemption authority pending Departmental action on the 

certificate transfer application. As long as SkyWest Airlines, ASA, and ExpressJet

remain separate entities, should we disapprove the proposed transfer, either in whole or in 

part, SkyWest could divest itself of ASA and ExpressJet. The Joint Applicants should 

not construe our grant of this exemption as a decision to approve the related de facto

transfer application or any aspect of that application. 

ACCORDINGLY,

1. We exempt SkyWest Airlines, Inc., Atlantic Southeast Airlines, Inc., and ExpressJet 

Airlines, Inc., from the provisions of section 41105 of the Statute, to the extent necessary 

to allow them to operate under the common ownership of SkyWest, Inc., pending the 

Department’s final action on the de facto transfer application in Docket DOT-OST-2010-

0225, subject to the condition that, pending such final action, SkyWest Airlines, Inc., 

Atlantic Southeast Airlines, Inc., and ExpressJet Airlines, Inc., continue to be maintained 

and operated as separate corporations.

2. This authority shall be effective until 90 days after the Department issues its final 

order on the joint application of SkyWest Airlines, Inc., Atlantic Southeast Airlines, Inc., 

and ExpressJet Airlines, Inc., in Docket DOT-OST-2010-0225 for approval of a transfer 

of route authority under section 41105 of the Statute.

3. We may amend, modify, or revoke this order at any time and without hearing.

 

Mazatlan, Mexico City, Monterrey, Morelia, Oaxaca, Puebla, Puerto Vallarta, Queretaro, Saltillo, 

San Jose Del Cabo, San Luis Potosi, Tampico, Toluca, Torreon, and Tuxtla Gutierrez; and Los 

Angeles-Leon/Guanajuato.

13 See Order 89-1-60, p. 4; Order 97-9-3, p. 3; Order 97-11-8, p. 5; Order 99-4-5, p. 4; and 

Order 2001-9-16, p. 4.
4

4. We will serve a copy of this order on the persons listed in Attachment 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 
 Attachment A

SERVICE LIST FOR

SKYWEST AIRLINES, INC., 

ATLANTIC SOUTHEAST AIRLINES, INC., AND 

EXPRESSJET AIRLINES, INC.

MS EILEEN M GLEIMER

MS LORRAINE B HALLOWAY

MR GERALD F MURPHY

CROWELL & MORING LLP

1001 PENNSYLVANIA AVE NW

WASHINGTON DC 20004

MR PETER LYNCH

ASST CHIEF COUNSEL 

FOR ENFORCEMENT (AGC-300)

FEDERAL AVIATION ADMINISTRATION

800 INDEPENDENCE AVE SW

WASHINGTON DC 20591

MR ROBERT SILVERBERG

1101 30TH STREET NW

SUITE 120

WASHINGTON DC 20007

MR BRAD HOLT

PRESIDENT

ATLANTIC SOUTHEAST AIRLINES, INC.

A-TECH CENTER

900 TOFFIE TERRACE

ATLANTA GEORGIA 30354

MR WILLIAM J WEBER (AFS-900)

CERTIFICATION SECTION MANAGER 

FEDERAL AVIATION ADMINISTRATION

45005 AVIATION DRIVE SUITE 131 

DULLES VA 20166

MR TODD EMERSON

GENERAL COUNSEL

SKY WEST AIRLINES INC

444 SOUTH RIVER ROAD

SAINT GEORGE UTAH 84790

MR THOMAS M HANLEY

PRESIDENT AND CHIEF EXECUTIVE OFFICER

EXPRESSJET AIRLINES INC

700 NORTH SAM HOUSTON PARKWAY WEST

SUITE 200

HOUSTON TEXAS 77067

MR CLAY MORITZ

OFFICE OF AIRLINE INFORMATION

DOT/RSPA/BTS E-36

1200 NEW JERSEY AVE SE

WASHINGTON DC 20590

MR BERNARD STANKUS RTS-42

OFFICE OF AIRLINE INFORMATION

DOT/RSPA/BTS E-36

1200 NEW JERSEY AVE SE

WASHINGTON DC 20590