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BEFORE THE 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF THE SECRETARY 

WASHINGTON, D.C. 

__________________________________________ 

 ) 

Applications of ) 

 ) 

 HAWAIIAN AIRLINES, INC. ) 

 & UNITED AIRLINES, INC. ) Docket DOT-OST-2010-0018 

 ) 

in the matter of 2010 U.S.-Haneda ) 

Combination Services Allocation Proceeding ) 

__________________________________________) 

Sur-Reply of Hawaiian to Delta’s Petition for Reconsideration 

of Order 2013-11-9

 Hawaiian Airlines, Inc. (“Hawaiian”) moves to file this sur-reply submitted in response to 

Delta’s Supplement to its Petition for Reconsideration of Order 2013-11-9. In its Petition and 

Reply, Delta proposes to change the conditions applicable to slot pairs for U.S.-Haneda 

combination services awarded by the Department to airlines in the current proceeding and prior 

proceedings. Hawaiian, the smallest carrier operating to Japan, opposes Delta’s Motion, but 

should it be granted, Hawaiian believes that, as a matter of elemental fairness, all prior awards 

should be reviewed in a new proceeding. The Department should use the new proceeding to 

eliminate other restrictions on Haneda service, such as the hours of operations, to provide a truly 

unregulated environment in which competition can truly flourish. Under those new rules 

applicable to all applicants, the Department should re-allocate all Haneda slots. 

Through a purported “application,” Delta proposes to alter the rights and conditions 

applicable not only to the single pair of Haneda slots at issue in this proceeding but all the 

previously awarded slot pairs. As a threshold matter, Delta’s “application” is not proper because 
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Delta has not applied for the Haneda slot pair being returned by American Airlines, stating it has 

no plans to terminate recently approved service from Seattle. More significantly, the proposal 

was not incorporated into either Order 2013-11-9 or in the Notice Amending Procedural 

Schedule issued November 22, 2013. Grant of the Delta’s petition, which would constitute relief 

to a party not participating in the current proceeding, is defective under the Administrative 

Procedure Act. 

It would simply be unfair and improper for the Department to initiate an adjudicatory 

proceeding based on a single set of assumptions and, in the middle of the proceeding, change the 

rules. Hawaiian, and presumably United, applied to initiate service from Kona and San Francisco 

respectively, based on the understanding that the single available Haneda slot pair would be 

awarded on the same basis as the prior awards. The purpose of this proceeding is for Hawaiian 

and United, not Delta, to explain the merits of their respective proposals so that the Department 

can make an award that is in the public interest. The carriers’ proposals, arguments and the 

administrative record necessarily reflect the carriers’ understanding of how those benefits will be 

realized in light of the existing regulatory framework, but Delta proposes to fundamentally alter 

the operating environment for U.S. carriers. Changing the nature of the criteria to award the 

slots in the middle of the proceeding completely undermines the process. Neither the applicants 

nor the Department’s interest are served in generating a record based on one set of assumptions 

only to have the rules changed as the proceeding progresses. Hawaiian therefore respectfully 

requests that the Department move forward to award the authority contemplated in Order 2013-

11-9 with all deliberate speed and to reject Delta’s Petition. 

 Should the Department grant Delta’s Petition and consider altering the prior designations, 

Hawaiian believes that DOT should undertake this review in a manner that puts all of the prior 
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approvals for operations up for review. In receiving two of the four Haneda route rights, Los 

Angeles and Detroit (now moved to Seattle), Delta benefited more than any other applicant from 

the rules established by the Department under the prior proceeding. The fact that Delta has 

failed to prosper from that largesse lies, ironically, in the limitations of the operating window for 

U.S. flights into and out of Haneda that Delta works so hard to maintain. Now Delta is trying to 

pick and choose the limitations which should be liberalized in the hopes of compounding Delta’s 

already manifest good fortune. Advocating for rules to suit one’s purpose, while a common 

strategy, is not however synonymous with the promotion of a competitive environment nor a 

benefit to the traveling public. 

So, if the Department decides to accept Delta’s proposal supposedly offered in the guise 

of liberalization, Hawaiian suggests that the liberalization undertaken should be complete rather 

than an ad hoc, self-serving (or Delta-serving) approach. In such a proceeding, the reallocated 

slots should be free from operating hour restrictions presently imposed on all U.S.-Haneda 

operations. Under the new ground rules, all interested carriers would resubmit proposals and a 

new comparative review undertaken. 

Regardless of which path that the Department decides to undertake, the resulting 

proceeding should be established such that the Department can award the available slots in the 

public interest to the carrier or carriers that provide the most benefits to the traveling public with 

service proposals that are based upon conditions that are established in advance and not changed 

halfway through the process. This would require notice to all carriers of the changed rules and 

the opportunity to apply for one or all of the four slots at Haneda. 
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 Respectfully submitted. 

 /s/ 

 

 Jonathan B. Hill 

J. Parker Erkmann 

 Benjamin Berlin 

 Dow Lohnes PLLC 

 1200 New Hampshire Ave., NW #800 

 Washington, DC 20036 

 202/776-2700 

 Counsel for Hawaiian Airlines, Inc. 

Dated: November 29, 2013 

 
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CERTIFICATE OF SERVICE

 I hereby certify that a copy of the foregoing Sur-Reply of Hawaiian to Delta’s Petition for 

Reconsideration of Order 2013-11-9 was served this 29th day of November, 2013 via email 

transmission on the following:

 

megan.lawrence@alaskaair.com 

kyle.levine@alaskaair.com 

francis.heil@aa.com 

Robert.wirick@aa.com 

sascha.vanderbellen@delta.com 

chris.walker@delta.com 

dan.weiss@united.com 

Thomas.bolling@united.com 

steve.morrissey@united.com 

lhalloway@crowell.com 

gmurphy@crowell.com 

howard.kass@usairways.com 

benjamin.slocum@usairways.com 

marshall.sinick@squiresanders.com 

esta.rosenberg@dot.gov 

robert.finamore@dot.gov 

brett.kruger@dot.gov 

paul.gretch@dot.gov 

todd.homan@dot.gov 

john.s.duncan@faa.gov 

urskr@state.gov 

cristinasa@state.gov 

info@airlineinfo.com 

 /s/ 

 

 J. Parker Erkmann