Title 14—Aeronautics and Space--Volume 1
PART 300—RULES OF CONDUCT IN DOT PROCEEDINGS UNDER THIS CHAPTER
§ 300.0   Applicability.
The rules of conduct set forth in this part except as otherwise provided in this or any other DOT regulation shall govern the conduct of the parties and their representatives, and the relationships between the Office of the Secretary of Transportation, the Office of the Assistant Secretary for Aviation and International Affairs, and the Office of the General Counsel, including regular personnel, and officials, special Government employees, consultants, or experts under contract to the Department of Transportation (DOT) and administrative law judges (hereinafter referred to as “DOT employee(s)”) and all other persons in all DOT matters involving aviation economic and enforcement proceedings.
§ 300.1   Judicial standards of practice.
Certain of DOT's functions involving aviation economic and enforcement proceedings are similar to those of a court, and parties to cases before DOT and those who represent such parties are expected—in fact and in appearance—to conduct themselves with honor and dignity as they would before a court. By the same token, any DOT employee or administrative law judge carrying out DOT's quasi-judicial functions and any DOT employee making recommendations or advising them are expected to conduct themselves with the same fidelity to appropriate standards of propriety that characterize a court and its staff. The standing and effectiveness of DOT in carrying out its quasi-judicial functions are in direct relation to the observance by DOT, DOT employees, and the parties and attorneys appearing before DOT of the highest standards of judicial and professional ethics. The rules of conduct set forth in this part are to be interpreted in light of those standards.
§ 300.2   Prohibited communications.
(a) Basic requirement. Except as provided in paragraphs (c), (d) and (e) there shall be no substantive communication in either direction between any concerned DOT employee and any interested person outside DOT, concerning a public proceeding, until after final disposition of the proceeding, other than as provided by Federal statute or published DOT rule or order.
(b) Definitions. For purposes of this part:
(1) A “substantive communication” is any written or oral communication relevant to the merits of the proceeding.
(2) The “DOT decisionmaker” is defined in 14 CFR 302.2 and 302.18.
(3) A “concerned DOT employee” is a DOT employee who is or may reasonably be expected to be directly involved in a decision which is subject to a public proceeding.
(4) A “public proceeding” is one of the following:
(i) A hearing proceeding ( i.e. , proceeding conducted on-the record after notice and opportunity for an oral evidentiary hearing as provided in §§ 302.17-302.38)
(ii) A rulemaking proceeding involving a hearing as described in paragraph (b)(4)(i) of this section or an exemption proceeding covered by this chapter. (Other rulemaking proceedings are covered by the ex parte communication policies of DOT Order 2100.6 and 49 CFR 5.19.)
(iii) A tariff filing after DOT has ordered an investigation or a complaint has been filed or docketed.
(iv) A proceeding initiated by DOT show-cause order, after the filing in the docket of an identifiable written opposition to the order's tentative findings.
(v) Any other proceeding initiated by a docket filing, other than a petition for generally applicable rulemaking, after the filing in the docket of an identifiable written opposition to the initiating document.
(c) General exceptions. Paragraph (a) of this section shall not apply to the following:
(1) Informal communications between legal counsel, including discussions about stipulations and other communications considered proper in Federal court proceedings.
(2) Information given to a DOT employee who is participating in a hearing case on behalf of an office that is a party, to another DOT employee who is reviewing that work, or to his or her supervisors within that office.
(3) Communications made in the course of an investigation to determine whether formal enforcement action should be begun.
(4) Settlement discussions and mediation efforts.
(5) Information given at the request of a DOT employee acting upon a specific direction of DOT, in a case other than a hearing proceeding as described in paragraphs (b)(4) (i) and (ii) (a “nonhearing case”), where DOT has decided that emergency conditions exist and this section would otherwise prevent the obtaining of needed information in a timely manner.
(6) Information given at the request of a DOT employee in a tariff matter after a complaint is filed but before an investigation is ordered.
(7) Nonhearing cases that are to be decided within 30 days after the filing of the initiating document.
(8) Nonhearing cases arising under 49 U.S.C. 41731-42.
(9) In nonhearing cases, communications with other Federal agencies not exempted by paragraph (e) of this section, provided the agencies have not participated as parties in the proceeding by making filings on-the-record.
(10) Information given at the request of a DOT career employee in the course of investigating or clarifying information filed, or pursuant to a waiver granted to an applicant or other interested person, in docketed proceedings involving determinations of fitness and/or U.S. citizenship only, for that portion of the proceeding that precedes the issuance of a show-cause order or an order instituting a formal proceeding. Motions for such waivers and any answers shall be filed in the applicable docket in accordance with § 302.11 of the Department's Procedural Regulations (14 CFR 302.11) and served upon all parties to the proceeding.
(d) Status and expedition requests. Paragraph (a) of this section shall not apply to oral or written communications asking about the status, or requesting expeditious treatment, of a public proceeding. However, any request for expeditious treatment should be made in accordance with the Rules of Practice, particularly Rule 11, § 302.11 of this chapter.
(e) National defense and foreign policy. In nonhearing cases, paragraph (a) of this section shall not apply to communications concerning national defense or foreign policy matters, including international aviation matters. In hearing cases, any communications on those subjects that would be barred by paragraph (a) of this section are permitted if the communicator's position with respect thereto cannot otherwise be fairly presented, but such communications shall not be included as part of the record on which decisions must be made.
(f) Communications not considered. A communication in violation of this section shall not be considered part of a record, or included as available material, for decision in any proceeding.
§ 300.3   Reporting of communications.
(a) General. The following types of substantive communication shall be reported as specified in paragraph (b) of this section:
(1) Any communication in violation of § 300.2(a) of this chapter.
(2) Information given upon determination of an emergency under § 300.2(c)(5) of this chapter.
(3) Information given at the request of a DOT employee in a tariff matter under § 300.2(c)(6) of this chapter.
(4) Communications in nonhearing cases to be decided within 30 days under § 300.2(c)(7) of this chapter.
(5) Communications in nonhearing cases arising under 49 U.S.C. 41731-42, made under § 300.2(c)(8).
(b) Public filing. (1) A written communication shall be placed onto the electronic docket management system ( http://www.regulations.gov ) in the file of the docket number corresponding to the proceeding, which shall be available for inspection and copying during business hours in Office of Docket Operations.
(2) An oral communication shall be summarized by the DOT employee receiving it. One copy shall be put into a public file as described in paragraph (b) (1) of this section, and another copy shall be mailed to the communicator.
(3) Electronic copies of written communications and oral summaries shall be posted to the DOT's electronic docket. Such docketed materials may be searched, viewed, and downloaded through the Internet at www.regulations.gov
(4) Copies of all filings under this part dealing with discontinuances or reductions of air transportation shall be mailed to the directly affected local communities, State agencies, and airport managers.
(c) Status and expedition requests. A DOT decisionmaker who receives a communication asking about the status or requesting expeditious treatment of a public proceeding, other than a communication concerning national defense or foreign policy (including international aviation), shall either:
(1) Refer the communicator to Office of Docket Operations.
(2) If the DOT decisionmaker responds by advising on the status, put a memorandum describing the exchange in the public file as described in paragraph (b)(1) of this section.
§ 300.4   Separation of functions in hearing cases.
(a) This section applies after the initiation of a hearing or enforcement case by the Department.
(b) A DOT employee who is participating in a hearing case on behalf of an office that is a party, another DOT employee who is in fact reviewing the position taken, or who has participated in developing the position taken in that case, or, in cases involving accusatory or disciplinary issues (including all enforcement cases) such employees' supervisors within that office, shall have no substantive communication with any DOT decisionmaker, administrative law judge in the case, or other DOT employee advising them, with respect to that or any factually related hearing case, except in accordance with a published DOT rule or order. In addition, each bureau or office supervisor of a DOT employee who is participating in a hearing case on behalf of that office when it is a party shall have no substantive communication with any administrative law judge in the case, or DOT employee advising the judge, in that or any factually related hearing case, except in accordance with a published DOT rule or order. For each hearing case, bureau or office heads shall maintain a publicly available record of those employees who are participating or are in fact reviewing the position taken, or who have participated in developing the position taken in that case.
(c) In hearing cases involving fares or rates, or applications for a certificate or permit under 49 U.S.C. 41102 and 41302, or applications by a holder for a change in a certificate or permit, a supervisor who would not be permitted to advise the DOT decisionmaker under paragraph (b) of this section may advise the DOT decisionmaker in the following manner: The supervisor's advice must either be made orally in an open DOT meeting or by a memorandum placed in the docket or other public file of such matter. Oral advice must be summarized in writing by the supervisor and placed in the docket or file of the matter. A copy of such written memorandum or summary of oral advice must be served on each party to the proceeding within 3 business days after such advice is given to the concerned DOT decisionmaker. Each of the parties may comment in writing on such advice within 5 business days after service or the summary. In no event, however, may a supervisor advise the DOT decisionmaker if he or she acted as the office's counsel or witness in the matter.
(d) In enforcement cases, the Office of the Assistant General Counsel for Aviation Enforcement and Proceedings, under the supervision of the career Deputy General Counsel and the General Counsel, will conduct all enforcement proceedings and related investigative functions, while the non-career Deputy General Counsel will advise the DOT decisionmaker in the course of the decisional process. The Office of the Assistant General Counsel for Aviation Enforcement and Proceedings will report to the career Deputy General Counsel and the General Counsel. To ensure the independence of these functions, this Office and the General Counsel, for the purpose of this section, shall be considered an “office” as that term is used in paragraph (b) of this section, separate from the non-career Deputy General Counsel and the rest of the Office of the General Counsel.
§ 300.5   Prohibited conduct.
No person shall: (a) Attempt to influence the judgment of a concerned DOT employee by any unlawful means such as deception or the payment of money or other consideration; or
(b) Disrupt or interfere with the fair and orderly disposition of a DOT proceeding.
§ 300.6   Practitioners' standards of conduct.
Every person representing a client in matters before DOT in all contacts with DOT employees, should:
(a) Strictly observe the standards of professional conduct;
(b) Refrain from statements or other actions designed to mislead DOT or to cause unwarranted delay;
(c) Avoid offensive or intemperate behavior;
(d) Advise all clients to avoid improprieties and to obey the law as the attorney believes it to be; and
(e) Terminate the professional relationship with any client who persists in improprieties in proceedings before DOT.
§ 300.7   Conciseness.
Every oral or written statement made in a DOT proceding shall be as concise as possible. Verbose or redundant presentations may be rejected.
§ 300.8   Opinions or rulings by the General Counsel.
The General Counsel is authorized to render opinions or rulings to the public on the application of the provisions of this part. When written request is made for such opinions and rulings, they shall be transmitted to DOT and shall be available to the public in the Documentary Services Division after any appeal to or review by the Secretary has been completed or after the time for review has expired. Identifying details shall normally be stricken from copies available to the public unless the public interest requires disclosure of such details.
§ 300.9   Disqualification of partners of DOT employees.
No partner of a DOT employee shall act as agent or attorney for anyone other than the United States in any DOT proceeding or matter in which such employee participates or has participated personally and substantially through decision, approval, disapproval, recommendation, rendering advice, investigation, or otherwise, or which is the subject of his or her official responsibility.
§ 300.10   Motions to disqualify DOT employee in review of hearing matters.
In cases to be determined on an evidentiary record, a party desiring that a concerned DOT employee disqualify himself or herself from participating in a DOT decision shall file a motion supported by an affidavit setting forth the grounds for such disqualification in the form and within the periods prescribed in § 302.11 of this chapter. Where review of the administrative law judge's decision can be obtained only upon the filing of a petition for discretionary review, such motions must be filed on or before the date answers are due pursuant to § 302.32. In cases where exceptions are filed to recommended, initial, or tentative decisions or where the DOT decisionmaker orders review of an initial or recommended decision on his or her own initiative, such motions must be filed on or before the date briefs are due pursuant to § 302.35 or § 302.218, as applicable. Failure to file a timely motion will be deemed a waiver of disqualification. Applications for leave to file an untimely motion seeking disqualification of a concerned DOT employee must be accompanied by an affidavit setting forth in detail why the facts relied upon as grounds for disqualification were not known and could not have been discovered with reasonable diligence within the prescribed time.
§ 300.11   Use of confidential information.
No former CAB member or employee or DOT employee, or any person associated with him or her, shall ever use or undertake to use in any DOT proceeding or matter any confidential facts or information which came into the possession of such Member or employee or to his or her attention by reason of his or her employment with the CAB or DOT without first applying for and obtaining the consent of the appropriate ethics counselor for the use of such facts or information.
§ 300.12   Violations.
(a) DOT may disqualify, and deny temporarily or permanently the privilege of appearing or practicing before it in any way to, any person who is found by DOT after written notice of charges and hearing to have engaged in unethical or improper professional conduct. Any violation of this part shall be deemed to be such conduct.
(b) When appropriate in the public interest, DOT may deny any application or other request of a party in a proceeding subject to this part where DOT finds after hearing that such party has, in connection with any DOT proceeding, violated any of the provisions of this part or any of the provisions of Chapter 11 of Title 18 of the United States Code. DOT may also condition its further consideration of such party's application or other request or the effectiveness of any order granting such application or other request upon such party's first taking such action as DOT may deem necessary or appropriate to remedy the violation of this part or Chapter 11 of Title 18 of the United States Code to prevent or deter any repetition of such violation. DOT may in addition issue a cease and desist order against any repetition of such or similar misconduct.
(c) The actions authorized by this section may take place within the framework of the matter during or concerning which the violations occur or in a separate matter, as the DOT decisionmaker or the presiding administrative law judge may direct. A complaint alleging that a violation has occurred in the course of a matter shall be filed in the docket or appropriate public file of such matter unless such complaint is made after DOT's decision of the matter has become final, in which event such complaint may be filed pursuant to part 302, subpart D of the rules of practice. A violation in the course of a matter which may be attributable to or affect the fitness of a party will ordinarily either be disposed of within the framework of such matter or be considered within the context of any subsequent matter involving the interests of such party. Other violations will ordinarily be disposed of in a separate proceeding.
(d) In the case of any violation of the provisions of this part, the violator may be subject to civil penalties under the provisions of 49 U.S.C. 46301. The violator may also be subject to a proceeding brought under 49 U.S.C. 46101 before the Department, or sections 46106 through 46108 of the Statute before a U.S. District Court, as the case may be, to compel compliance with civil penalties which have been imposed.