	UNITED STATES OF AMERICA  

DEPARTMENT OF TRANSPORTATION  

OFFICE OF THE SECRETARY  

WASHINGTON, D.C.  

Served: May 12, 2003

In the matter of the citizenship of

DHL AIRWAYS, INC.

Under 49 U.S.C. § 40102(a)(15)

Docket OST-2002-13089



NOTICE ON REQUEST FOR EXTENSION OF TIME FOR

SUBMISSION OF RECOMMENDED DECISION

By Order 2003-4-14, issued April 17, 2003 (“Instituting Order”), the
Department instituted a de novo review of the current citizenship of DHL
Airways, Inc. (“DHL Airways”) before an Administrative Law Judge. 
We directed the Law Judge to submit a Recommended Decision (“RD”) to
the Department by September 2, 2003.  In so doing, we also stated that,
if the Law Judge determined that additional time was needed to complete
this proceeding, he could request an extension of time from the DOT
Decisionmaker.

On April 29, 2003, Chief Administrative Law Judge Ronnie A. Yoder held a
prehearing conference in this proceeding, and on May 2, issued his
prehearing conference report (“Report”), which included a request to
the Decisionmaker for an extension of time.  

In his request, Judge Yoder indicated that DHL Airways proposed October
31 as the due date for the RD and that the other parties indicated a
willingness to accept November 24, but later changed that to December 23
without further explanation.  The Chief Judge requested November 24 as
the date for submission of his RD.  In support of his request, the Chief
Judge notes that the issues in this proceeding have been before the
Department for 2½ years.  See Report at 3.  

It is precisely because these issues have been before the Department for
this length of time that we believe that there should be an expeditious
resolution of this matter.  To make it possible to complete this
proceeding by our September 2 deadline, the Department directed that all
parties designate, in a filing in this docket within seven days of the
issuance of the Instituting Order, the documents that should be included
in the record in the proceedings before the Law Judge.  Not one of the
parties complied with this order in a timely manner.  See Report at 3. 
We believed that this seven-day deadline was reasonable at the time we
imposed it, and we continue to believe that it was a reasonable time
frame, despite the fact that the parties disregarded it, and instead of
complying with our direction, now seek additional time to expand this
proceeding. 

The Chief Judge further states that additional time is necessary because
there has been no previous opportunity for discovery.  See Report at 5
n.6.  While we have directed the Chief Judge to conduct a de novo review
of this matter, the issue involved in this proceeding has been the
subject of multiple pleadings before the Department over the past 2½
years, by each of these parties.  We recognize and acknowledge that some
limited discovery may be justified.  Under these circumstances, however,
the process of discovery should take considerably less time than it
might have if this issue were new to the parties.  That is particularly
true because discovery should be limited only to facts relevant to the
issue of the current citizenship of DHL Airways. 

Lastly, the Chief Judge states that the “need for additional time is
especially acute as the Instituting Order provides that Public Counsel
will not participate in these proceedings.”  See Report at 5.  We see
no reason why the participation of Public Counsel would have helped the
parties to meet the deadlines set by the Instituting Order.  Both sides
of the questions at issue here are adequately, indeed amply, represented
by competent counsel.  We therefore see no reason to believe that the
parties would require the intervention of Public Counsel to develop a
full record on the issues in a timely way.  It is an obligation of the
parties who requested this proceeding to devote the resources necessary
to proceed expeditiously and meet all deadlines with the same zeal that
they have demonstrated in addressing the issue of whether we should
institute an oral evidentiary hearing in the first place.

We believe that the original September 2 deadline afforded the Chief
Judge and all parties an adequate amount of time to fully consider the
important issues raised in this proceeding. We note that Federal Express
Corp., United Parcel Service Co., and Lynden Air Cargo, LLC have
expressed concerns in this docket about the impact of alleged
“foreign” competition and that DHL Airways has stated its concern
about the impact on its business of the extensive time that this
proceeding has been pending.  Nevertheless, we have decided to grant the
request for an extension in part and believe that a deadline of October
31 would adequately serve the public interest.  For the reasons stated
above, we regard an extension of almost two months, to October 31, as
more than sufficient.  A further extension would unreasonably extend a
proceeding that, in the public interest, should be brought to closure
without undue delay.  Moreover, we see no reasons why this case cannot
be completed on time if the Instituting Order is complied with by all
parties and rigorously enforced by the Chief Judge.

ACCORDINGLY, We extend the deadline to submit a Recommended Decision to
the Department to October 31, 2003.  No further extensions will be
granted unless warranted by extraordinary circumstances.

We will serve a copy of this notice on each of the parties in this
proceeding as set forth in the attached Service List.

Dated at Washington, DC, May 12, 2003:

   READ C. VAN DE WATER

Assistant Secretary for Aviation

     and International Affairs

Attachment

SERVICE LIST

DHL AIRWAYS, INC.

Docket OST-2002-13089

The Honorable Ronnie A. Yoder

Chief Administrative Law Judge

Office of Hearing, M-20, Room 5411

U.S. Department of Transportation

Washington, DC 20590

   FAX: 202-366-7536

	Robert Jeffrey Kelsey

Federal Express Corporation

3620 Hacks Cross Road

Bldg. B, 2nd Floor

Memphis, TN  38125

   FAX: 901-434-4523

Sanford M. Litvack

Joanna R. Swomley

Quinn, Emanueal, Urquhart, Oliver

  & Hedges, LLP

Counsel for DHL Airways, Inc.

805 Third Avenue

New York, NY  10022

   FAX: 212-702-8146

	Pierre Murphy

Law Office of Pierre Murphy

Counsel for Lynden Air Cargo, LLC

1200 New Hampshire Avenue, NW

Suite 800

Washington, DC 20036

   FAX: 202-776-3975

David L. Vaughan

Kelley Drye & Warren LLP

Counsel for United Parcel Service Co.

1200 19th Street, NW, Suite 500

Washington, DC  20036

   FAX: 202-955-9792

	Patricia L. Thomas

Chief, Air Carrier Fitness Division, X-56

U.S. Department of Transportation

Room 6401

400 7th Street, SW

Washington, DC 20590

  FAX:  202-366-7638



 See, e.g., UPS Reply of September 17, 2002, Docket OST-2002-13089, at
12-13 (alleging Deutsche Post engages in “anti-competitive behavior”
causing “unfair competition”); FedEx Reply of September 24, 2002,
Docket OST-2002-13089, at 3 (“The Department is required to ensure
that U.S. air carriers compete on an equal footing with foreign air
carriers.  This responsibility has become even more important since last
year’s tragic events.”  (footnote omitted)); Lynden Air Cargo Motion
of November 8, 2002, Docket OST-2002-13089, at 4 (stating loss of Air
Mobility Command contract to DHL Airways  “will have serious financial
consequences for our company”). 

 See Report at 4.

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