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OST-2003-15863 - ABX Air - Request for Comments on Procedure
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ABX Air, Inc. Served August 6, 2003 OST-03-15863 Notice Requesting Comments on Procedure | Word Notice, the Department directs ABX to file in this docket within 7 calendar days (August 15, 2003), a copy of the public material that it submitted to the Department on July 15 with its notice of substantial change. Public comments on the procedures will be due within 21 days thereafter (September 5, 2003). On July 15, 2003, ABX Air, Inc. filed a notice with the Department under section 204.5 of our rules (14 CFR 204.5) reporting a substantial change in its ownership and operations. According to the notice, the ground operations of Airborne, Inc., ABX's parent, would be sold to DHL Worldwide Express B.V., and merged into a subsidiary of that company, Atlantis Licensing Corporation d/b/a DHL Express ("DHL Express"). ABX would be separated from Airborne, becoming an independent public company wholly owned by Airborne's stockholders at the time of the separation. ABX also reported that it would enter into various commercial agreements with the new DHL Express, including an Aircraft, Crew, Maintenance, and Insurance (ACMI) services agreement, a hub and line-haul services agreement, a transition services agreement, and a sublease for space at the Wilmington Air Park. In addition, DHL Holdings (USA), Inc., will make a loan to ABX and will provide performance guarantees for DHL Express' obligations under the ACMI and hub and line-haul services agreements. By: Michael Reynolds August 15, 2003 OST-03-15863 - Notice Requesting Comments on Procedure This is to advise the Air Carrier Fitness Division that on August 14, 2003 at approximately 10:20 PDT (1:20 EDT), Airborne, Inc. announced that its shareholders had approved the separation of ABX Air, Inc., pursuant to which ABX will become an independent company, wholly and directly owned by Airborne's stockholders at the time of the separation. In addition, the shareholders approved the acquisition of Airborne (minus ABX) by Atlantis Acquisition Corporation, a wholly owned indirect subsidiary of DHL Worldwide Express B.V. . As communicated to your office yesterday, of the: 30.9 million votes cast, 88.4% were in favor of the transaction and related proposals. The transaction is described more fully in the materials delivered to the Department on July 14th in connection with the Section 204.5 Notice of Substantial Change for ABX. Counsel: O'Melveny Myers, Donald Bliss, 202-383-5331, dbliss@omm.com OST-03-15863 - In the Matter of the Notice of Substantial Change in Ownership September 3, 2003 A review process similar to that used in carrier selection proceedings for limited-entry route authorities would impede the free flow of information, open up the notifying carrier's confidential information and plans to opponents and subject it to one-way attacks, and severely restrict - if not effectively preclude - ongoing discussions between the Department and the notifying carrier about the substantial change and resolution of any issues related thereto. Clearly, such a process is inimical to the process and objectives of continuing fitness reviews. Counsel: Silverberg, Goldman, Robert Silverberg, 202-944-3300 / O'Melveny Myers, Donald Bliss, 202-383-5300
September 3, 2003 ABX’s independence going forward is rooted in the past. ABX, like ASTAR, is a former in-house airline, now claiming to be independent of its former control relationship. The “controller” is now foreign-owned, still supplying 98% of ABX’s business. ABX investors have already been warned that a significant reduction in the scope of services under the ACMI agreement “would have a material adverse effect” on ABX’s results.26 It is now up to the Department to determine in an open and transparent manner whether the separation of these sister companies will create a company that is able to operate independently. Counsel: Fed Ex, Nancy Spark, 202-756-2461
September 3, 2003 UPS appreciates the opportunity to provide its views on an appropriate means of conducting an inquiry into the citizenship of ABX, and particularly appreciates the Department's recognition of the need for transparency in complex citizenship cases. UPS continues to believe that nothing is gained by an across-the-board decision to exclude such matters from formal, public view. A more-particularized approach that reserves formal adjudication process for situations in which the applicant's full submissions indicate such a need appears to be the most effective and efficient course. Counsel: Kelley Drye, David Vaughan, 202-955-9864, dvaughan@kelleydrye.com OST-03-15863 - Notice Requesting Comments on Procedure September 8, 2003 ASTAR and its predecessor Airways have been the target of numerous DOT filings in dockets opened by FedEx and UPS over a period of years, frivolously challenging the DOT's determinations of citizenship and fitness over and over again. The FedEx and UPS petitions were not motivated by altruism or patriotism, but rather by their desire to drive ASTAR out of the marketplace. Because these petitions lacked merit, DOT rejected them, repeatedly upholding its own determination that Airways was a citizen. Undeterred, FedEx and LIPS were able ultimately to force an adjudicatory hearing, which is ongoing, regarding Airways' and now ASTAR's citizenship. As a result, ASTAR has been compelled to undergo the significant burden of adversarial litigation and discovery to demonstrate -- as was already done by Airways -- that it is, indeed, a citizen of the United States. As set forth in the next section, none of this drain on DOT's resources will have served any public interest, but rather will have simply advanced FedEx's and UPS's goal of making life very difficult for any company that has the temerity to compete with them. Counsel: Quinn Emanuel, Sanford Litvack, 202-702-8100, sandylitvack@quinnemanuel.com OST-03-15863 - Notice Requesting Comments on Procedure September 23, 2003 Supplement to Comments of United Parcel Service Supplement of United Parcel Service Co. to comments previously submitted to bring to the Department's attention newly available information relating to the Airborne Express ground operations serviced by ABX that materially changes both the scope and complexity of the issues to be reviewed in this proceeding. With the announced integration and the establishment of the "New DHL" as successor to Airborne Express, ABX will be serving a different and much larger Germanowned enterprise than at the time this proceeding was instituted. Through its ACMI contract, the ABX fleet of some 116 U.S. registered aircraft will now be dedicated to, and become an integral part of, the Deutsche Post-owned DHL Worldwide Network. Virtually all of ABX's revenues will come from this vast German-owned aggregation of express and forwarder companies. While it remains to be seen how, and to what extent, ABX's provision of its 116 U.S. registered aircraft will be coordinated with the 38 U.S. registered aircraft now also being supplied under an ACMI agreement to DHL by ASTAR Air Cargo, Inc. (formerly DHL Airways, Inc.), the two companies combined could (assuming no further fleet growth) offer some 154 U.S. registered large jet all-cargo aircraft for exclusive use by the Deutsche Post in offering commercial air transportation services between points solely within the United States. Counsel: Kelley Drye, David Vaughan, 202-955-9864, dvaughan@kelleydrye.com April 22, 2005 Motion to Withhold Information from Public Disclosure Hereby moves to withhold from public disclosure (i) certain information in Exhibits ABX-S-12 (an ACMI agreement), ABX-S-14 (a Hub and Line-Haul Services agreement), and ABX-S-20 (a Master Separation Agreement), and (ii) Exhibit ABX-S-24, a list of agreements with non-DHL entities for the provision of services. These Exhibits are being provided to the Department as part of ABX's submission of updated fitness information. Counsel: ABX and O'Melveny & Myers, Donald Bliss, 202-383-5300, dbliss@omm.com
April 22, 2005 Re: Updated 14 C.F.R 204.3 Information - Bookmarked The updated fitness information consists of an explanatory cover letter from W. Joseph Payne, Vice President, General Counsel & Secretary of ABX, as well as 26 exhibits, numbered Exhibits ABX‑S‑0 through ABX‑S‑25. Counsel: ABX and O'Melveny & Myers, Donald Bliss, 202-383-5300, dbliss@omm.com |
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