06-7645. Notice of Extension for Filing Comments; Request by Hawaiian Airlines for Declaratory Order Concerning Hawaiian's American Samoa Service

AGENCY:

Office of the Secretary, Department of Transportation.

SUMMARY:

The Department is changing the due dates for comments and reply comments on the legal and policy questions presented by a petition submitted by Hawaiian Airlines for a declaratory order regarding an Executive Order issued by the Honorable Togiola T.A. Tulafono, the Governor of American Samoa. The Governor's order proposes to block Hawaiian from continuing to serve American Samoa if another airline replaces Hawaiian's service between Honolulu and Pago Pago. Comments will now be due October 31, and reply comments will be due November 21, 2006.

DATES:

Comments must be submitted on or before October 31, 2006. Replies must be filed by November 21, 2006.

ADDRESSES:

Objections and answers to objections must be filed in Docket number OST-2006-25612 by one of the following means:

(1) By mail to the Docket Management Facility, U.S. Department of Transportation, Room PL-401, 400 Seventh Street, SW., Washington, DC 20590-0001.

(2) By hand delivery to Room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.

(3) Electronically through the Web site for the Docket Management System at http://dms.dot.gov. Comments must be filed in Docket OST-2006-25612.

FOR FURTHER INFORMATION CONTACT:

Thomas Ray, Office of the General Counsel (C-30, Room 4102), U.S. Department of Transportation, 400 Seventh St., SW., Washington, DC 20590, [phone], or Nancy Kessler, Office of the General Counsel (C-10, Room 10102), U.S. Department of Transportation, 400 Seventh St., SW., Washington, DC 20590, [phone].

SUPPLEMENTARY INFORMATION:

On August 10, 2006, Hawaiian Airlines, the only airline currently providing scheduled passenger service between American Samoa and another U.S. State or territory, filed a petition asking for a declaratory order regarding an Executive Order issued by the Honorable Togiola T.A. Tulafono, the Governor of American Samoa, that proposed to block Hawaiian from continuing to serve American Samoa. Governor Tulafono has been dissatisfied with the quality and price of Hawaiian's service. His executive order, issued July 26, 2006, stated that American Samoa intends to find another airline to replace Hawaiian's service and that he will issue a second executive order barring Hawaiian from continuing to operate to American Samoa when another airline is ready to replace Hawaiian's service between Pago Pago and Honolulu. Hawaiian's petition, filed in Docket OST-2006-25612, contends that the Governor may not lawfully block Hawaiian from serving the Honolulu-Pago Pago market. Hawaiian's petition thus presents the question of whether Federal law will allow the Governor to take the action proposed by his Executive Order, or will prohibit him from doing so.

Because we were unwilling to rule on Hawaiian's petition without making sure that American Samoa had a full opportunity to respond to the petition, and because no one submitted comments in response to Hawaiian's petition, we published a notice inviting American Samoa and all other interested persons to submit comments on the petition. Comments were due September 15, and reply comments were due September 22, 2006. 71 FR 52205 (September 1, 2006).

On August 30, the Governor of American Samoa sent a letter to Susan McDermott, the Deputy Assistant Secretary for Aviation and International Affairs, requesting that at least sixty days, and preferably ninety days, be allowed for submitting comments on Hawaiian's petition. The Governor stated that the issues presented by Hawaiian's petition could not be adequately addressed within a fourteen-day comment period. He suggested that the comment period in this proceeding should reflect the procedures used in rulemaking proceedings, where sixty-day comment periods are common. We have placed a copy of the Governor's letter in the docket for this proceeding and sent a copy to Hawaiian. Hawaiian states that it does not object to a sixty-day comment period.

We will establish a comment period of sixty days, as the Governor has requested. Comments therefore will be due sixty days after the September 1 publication of our initial Federal Register notice. This will give the parties ample time for preparing their responses to Hawaiian's petition. We will also give parties two additional weeks for filing reply comments.

The parties' submissions thus far suggest that we should provide some guidance on the procedural requirements for this proceeding. Because Hawaiian is requesting a declaratory order regarding its individual dispute with the Governor, this proceeding is an adjudication, not a rulemaking. As such, it is subject to our rules for adjudicatory proceedings where no oral evidentiary hearing is held, 14 CFR 302.1 through 302.15. In adjudications, fundamental principles of fairness require that each party must serve the other parties whenever it submits its views to us on substantive or procedural issues. As a result, Hawaiian, the Governor, and the other parties must send all of their future filings directly to the docket for this proceeding and must simultaneously serve the other parties (at this time, the parties consist of Hawaiian and the Governor). While we sent a copy of Hawaiian's petition to the Governor and then forwarded the Governor's request for more time to Hawaiian, in the future each party is responsible for ensuring that it has sent a copy of any written request or pleading to the other parties.

Dated: September 8, 2006.

Michael W. Reynolds,

Acting Assistant Secretary for Aviation and International Affairs.