6446 Federal Register / Vol. 65, No. 27 / Wednesday February 9, 2000 / Rules and Regulations

DEPARTMENT OF TRANSPORTATION

Office of the Secretary

14 CFR Parts 200, 211, 213, 216, 291,

300, 302, 303, 305, 377, 385, and 399

[Docket No. OST–97–2090]

RIN 2105–AC48

Rules of Practice in Proceedings

AGENCY: Office of the Secretary,

Department of Transportation.

ACTION: Final rule.

SUMMARY: The Department is finalizing,

with certain exceptions, a Notice of

Proposed Rulemaking (NPRM) (62 FR

5094, Feb. 3, 1997) to revise 14 CFR part

302 in order to eliminate unnecessary

verbiage and obsolete provisions and to

make technical changes to make the

rules current. The final rule also

includes certain changes implementing

the electronic filing component of the

Department’s Docket Management

System (DMS). All reserved subparts are

being removed, and the remaining

subparts are being reorganized and

renumbered to make their arrangement

more logical and to emphasize

procedures applicable to the much more

commonly used written (as opposed to

oral) proceedings. The rulemaking also

adds procedures for slot exemptions at

high-density airports. The NPRM

proposed a number of changes in the

time periods for filing responsive

documents in licensing cases, which we

are adopting. A number of commenters

proposed further changes to the filing

periods. Based on these comments, we

have decided to re-evaluate all of the

prescribed time periods in part 302 and

will issue a supplemental notice of

proposed rulemaking on this matter. In

addition, as noted in the preamble to the

NPRM, we are also amending those

rules in 14 CFR Chapter II containing

now incorrect references to specific

sections in part 302. Finally, one

provision in part 302 is being relocated

to part 300, Rules of Conduct in DOT

Proceedings Under This Chapter.

EFFECTIVE DATE: The rule shall become

effective on March 10, 2000.

FOR FURTHER INFORMATION CONTACT:

Patricia L. Thomas or Carol A. Woods,

Office of Aviation Analysis, X–56, U.S.

Department of Transportation, 400

Seventh Street, SW, Washington, DC

20590, (202) 366–9721.

SUPPLEMENTARY INFORMATION:

Background

14 CFR part 302, Rules of Practice in

Proceedings, contains the regulations

that govern the conduct of all aviation

economic proceedings before the

Department of Transportation. These

rules had not been comprehensively

reviewed and updated since 1985 when

the aviation economic functions of the

Civil Aeronautics Board (CAB) were

transferred to the Department as a result

of the CAB’s ‘‘sunset.’’

In his Regulatory Reinvention

Initiative Memorandum of March 4,

1995, President Clinton directed Federal

agencies to conduct a page-by-page

review of all of their regulations and to

‘‘eliminate or revise those that are

outdated or otherwise in need of

reform.’’ In response to that directive,

the Department undertook a review of

its aviation economic regulations as

contained in 14 CFR chapter II. Not

unexpectedly in reviewing part 302, we

identified a number of provisions and

references that were obsolete, requiring

technical and editorial revisions to

make them current, and areas where

changes were needed to bring the rules

into conformance with the Department’s

current needs and practices and to

facilitate their use by the public.

Toward that end, the Department issued

a Notice of Proposed Rulemaking

(NPRM) (62 FR 5094, February 3, 1997)

to revise part 302.

The Changes

Except as otherwise discussed below

in the section summarizing and

resolving issues raised in the comments

received, we are adopting the changes as

proposed in the NPRM. Because of the

extent and number of changes being

made, we are reissuing part 302 in its

entirety. Unless noted, as with statutory

re-codifications, no changes in the

wording or organization of part 302 are

intended to make a substantive change

in the rules affected. The most

noteworthy of the substantive revisions

being adopted are as follows:

General

Part 302 is extensive, with different

subparts governing different types of

proceedings. In general, the changes

include eliminating redundancies,

obsolete provisions and wordiness;

resequencing sections within subparts

to place them in a more logical order to

‘‘track’’ the course of a particular type

of proceeding; and reorganizing and

renumbering subparts to place a greater

emphasis on procedures used in written

proceedings (i.e., non-oral evidentiary

proceedings) which are used in the

majority of cases handled. Some

sections are being separated or

combined and titles added or revised for

clarity and ease in locating specific

provisions.

A number of the subparts are being

reordered so that the rules of general

applicability (revised Subpart A) come

first, followed by rules pertaining to the

Department’s ‘‘permanent’’ licensing

functions, i.e., issuance of U.S. air

carrier certificates and foreign air carrier

permits (new Subpart B, current

Subparts I and Q), rules pertaining to

‘‘temporary’’ licensing functions, i.e.,

exemptions (new Subpart C, current

Subpart D), rules on enforcement of

those licenses and other Department

regulations (new Subpart D, current

Subpart B), and rules on rates, fares, and

charges, i.e., prices for foreign air

transportation (revised Subpart E),

airport fees (revised Subpart F), and

mail rates and contracts (new Subpart G,

current Subparts C and O).

Current Subpart J, Rules Applicable to

Proceedings Involving Charter Air

Carriers, is being removed. This subpart

contains procedural rules for the

immediate suspension of a charter air

carrier’s certificate. To our knowledge,

this rule has never been used and is

redundant with respect to other

authority and procedures.

Subparts G, H, K, L, M, N, and P,

which are currently ‘‘reserved,’’ are also

being removed.

Subpart A—Rules of General

Applicability currently sets forth the

general rules that apply to all

proceedings before the Department. The

changes to Subpart A include the

addition of a definitions section

(§ 302.2) which include definitions

drawn from other sections of the current

rule (e.g., DOT decisionmaker) as well

as new definitions (e.g., party, nonhearing case) or revised definitions. The

final rule also includes certain changes

implementing the electronic filing

component of the Department’s Docket

Management System (DMS).

Some sections in Subpart A are being

reorganized. For example, requirements

for filing documents (§ 302.3) are being

revised to include provisions on the

prohibition and dismissal of certain

documents, and the discussion on

motions for leave to file otherwise

unauthorized documents, presently

contained in the general requirements

for documents (§ 302.4), is being

relocated to the section on responsive

documents (§ 302.6(c)).

Provisions are being added to specify

when an application may be amended

when the application has not been set

for hearing—e.g., prior to the issuance of

an order establishing further procedures

or disposing of the application (§ 302.5).

Service of documents (new § 302.7) is

being revised to allow for service by

Federal Register / Vol. 65, No. 27 / Wednesday February 9, 2000 / Rules and Regulations 6447

facsimile and other electronic means.

We are also deleting the reference in

proposed § 302.7(h) to the Department’s

Alaska Field Office, since that office has

been closed.

A provision is being added in the

section on requests for confidential

treatment of information (new § 302.12)

to allow limited disclosure to the parties

in a proceeding upon submission of

affidavits by those parties agreeing to

protect the confidentiality of the

documents in accordance with a

Department order.

All of the paragraphs that pertain only

to oral evidentiary hearings are being

moved to the end of the subpart (new

§§ 302.17–302.37) to alleviate confusion

over the procedures that are applicable

only to those types of proceedings and

those applicable to non-hearing cases,

which now comprise the bulk of the

proceedings that the Department

handles.

The section on administrative law

judges (new § 302.17) is being revised to

specify the powers of the judges and to

include the delegation of authority to

the judges to make decisions in hearing

proceedings (current § 302.27(a)).

The section on the DOT

decisionmaker (new § 302.18) is being

revised to reorder the text to eliminate

duplication and to reflect that the

majority of cases are decided by using

non-hearing proceedings.

The list of officially noticeable

documents, included in the evidence

section (§ 302.24), is being updated and

reorganized so that documents filed

with or compiled by the Department,

including the Federal Aviation

Administration, are listed first followed

by documents filed with or compiled by

other government agencies and then

private organizations (§ 302.24(g)).

A new section specifying the actions

that can be taken by administrative law

judges after a hearing, including issuing

initial or recommended decisions

(which would be defined in the rule) or

certifying the record to the DOT

decisionmaker is being added (§ 302.31).

A provision is being added stating that,

in the case of a recommended decision,

unless a petition for discretionary

review, exceptions, or a notice by the

DOT decisionmaker taking review was

filed, the judge’s decision would be

forwarded to the President for review

under 49 U.S.C. 41307 as the

Department’s final order.

Some sections are being removed

from this subpart if they pertain only to

specific types of cases (e.g., § 302.13,

joinder of complaints or complainants,

is being moved to new Subpart D

concerning enforcement proceedings),

or if they more logically belong in other

rules (e.g., § 302.18(a–1)—motions to

disqualify DOT employees in review of

hearing matters—is being redesignated

§ 300.18 in part 300 of this chapter,

which covers rules of conduct in DOT

proceedings).

Subpart B—Rules Applicable to U.S.

Air Carrier Certificate and Foreign Air

Carrier Permit Licensing Proceedings

replaces and revises current Subparts I

and Q with respect to licensing

procedures for new U.S. certificated and

foreign air carriers and the conduct of

international route proceedings.

The new Subpart B is being organized

to indicate more clearly what evidence

requirements and filing and review

procedures will be followed in each

type of licensing case. Thus, current

§ 302.1720, which applies to certificate

cases in general, contains provisions on

filing conforming applications or

motions to modify the scope of a

proceeding that are applicable to

international route cases but not

applicable to initial fitness cases.

Provisions pertaining solely to

international route cases are being

combined in new § 302.212; those

pertaining to initial or continuing

fitness cases for U.S. carriers are being

placed in new § 302.211; and those

pertaining to foreign air carrier permit

cases are being included in new

§ 302.213.

A provision is being added (new

§ 302.202(a)) stating that, in those cases

involving the initial or continuing

fitness of a U.S. air carrier, any

application filed should also contain the

supporting fitness information required

by part 204 of this chapter.

The requirement to serve copies of

pleadings on other parties is being

revised for proceedings involving

foreign air carrier permit applications to

conduct scheduled operations to

include the airport authority of any U.S.

airport that the applicant initially

proposes to serve (new

§ 302.203(b)(2)(C)). Service on such

parties is already required and is being

retained in U.S. air carrier certificate

application proceedings (new

§ 302.203(b)(1)).

We are also eliminating the separate

regulatory procedures and time periods

for responsive pleadings for certificate

restriction removal cases (current

§§ 302.1730). Such cases are rare and

can be handled under the same rules

and timeframes as international route

award cases. If different procedures or

timetables are required in a specific

case, the Department can establish those

in a procedural order at the outset of

such proceeding.

We are adding a provision to allow

specifically for the filing of replies to

answers in licensing cases (new

§ 302.204(b)). Replies are routinely filed

in such cases (accompanied by a motion

for leave to file), are permitted in

response to answers to show-cause

orders issued in such proceedings, and

are of benefit to the Department in

analyzing the information and

allegations in any filed answer.

We are adding a provision to specify

that, in U.S. air carrier certificate cases,

the order establishing further

procedures will be issued in 90 days

after a complete application is filed

(new §§ 302.211(b) and 302.212(e)). This

clarification, which reflects the

provision in current § 302.1713 (new

§ 302.209) that the time periods

contained in the subpart would not

begin to run until the application is

complete, is intended to alleviate any

confusion over when a DOT order

taking action on an application would

be issued, since many certificate

applications are not complete when

submitted and must be deferred pending

receipt of supplementary information.

The section on the disposition of

applications (new § 302.210) is being

reorganized to reflect the current

practices employed in the majority of

application cases of using show-cause

procedures or final orders, rather than

instituting an oral evidentiary hearing.

A provision is being added to current

§ 302.1757 (new § 302.220(b)(2)) to

clarify that if the DOT decisionmaker

does not act within 90 days of the

issuance of an initial decision by an

administrative law judge, that decision

becomes the final decision of the

Department.

Current § 302.1760, which pertains to

internal procedures of the Department,

is being eliminated as unnecessary.

Subpart C—Rules Applicable to

Exemption Proceedings replaces and

revises current Subpart D, which sets

forth procedural rules for U.S. and

foreign air carriers to follow in applying

for exemption authority under section

40109 of Subtitle VII of Title 49 of the

United States Code (‘‘the Statute’’). It

adds proceedings for slot exemptions at

high-density airports under section

41714 of the Statute to its scope. It also

gives guidance to U.S. and foreign air

carrier applicants on the specific

information they must file.

New § 302.302(b) revises the names of

the offices where exemption

applications are to be filed to the U.S.

Air Carrier Licensing Division or

Foreign Air Carrier Licensing Division,

as appropriate, in the Office of

International Aviation. New

§ 302.302(b)(4) is being revised to

permit the filing of exemption requests

by facsimile and electronic mail (when

6448 Federal Register / Vol. 65, No. 27 / Wednesday February 9, 2000 / Rules and Regulations

available), and new § 302.302(e) (current

§ 302.401(e)) is being revised to reflect

our present practice of omitting

applicants’ addresses when publishing

notices of exemption applications filed.

Also, the word ‘‘undue’’ is being

changed to ‘‘unreasonable’’ in

paragraphs (3) and (4) of new

§ 302.303(d) to reflect a change in this

language in section 40109(g)(1)(C) of the

Statute.

Subpart D—Rules Applicable to

Enforcement Proceedings replaces and

revises current Subpart B, which

contains the specific rules governing

actions or proceedings by which the

Department enforces the aviation

economic provisions of the Statute and

the rules, orders, and other

requirements the Department issues

under those provisions. These rules also

inform the public how to lodge

complaints and detail the procedures

that the Department and the parties will

follow in the event the Department takes

enforcement action.

A definitions section is being added

to new Subpart D (new § 302.402).

In addition, various sections are being

combined, separated or retitled for

purposes of clarity. Thus, a separate

section on informal complaints is being

established (new § 302.403), and the

section on formal complaints is being

expanded to include current §§ 302.203

and 302.13 and separated into

paragraphs pertaining to, among others

things, the filing, amendment, and

service of such complaints (new

§ 302.404).

The term ‘‘third-party complaint’’

used throughout is being replaced with

‘‘formal complaint,’’ and the ‘‘saving

clause’’ from Subpart A (current

§ 302.40) is being moved to Subpart D

as new § 302.420 and modified to

include provisions of the Statute and

orders and other requirements of the

Department.

Subpart E—Rules Applicable to

Proceedings with Respect to Rates, Fares

and Charges for Foreign Air

Transportation revises current Subpart

E, which contains special rules for

proceedings relating to rates and fares

and their related rules, classifications

and practices applied in foreign air

transportation. These proceedings are

instituted at the Department’s discretion

in response to a third-party complaint,

or upon the Department’s own

initiative. Historically, most such

proceedings involved complaints

against tariffs by competitors.

The title of the subpart is being

amended to add ‘‘for Foreign Air

Transportation’’ to clarify that these

rules do not apply to rates, fares and

charges in interstate transportation.

Current § 302.506 is being eliminated.

That section places the burden of going

forward with the evidence (i.e., making

at least a prima facie case of lawfulness)

upon the carrier proposing a tariff

change. Under deregulation pricing

policies and procedures, fare decreases

or rule liberalizations do not need any

justification.

Subpart F—Rules Applicable to

Proceedings Concerning Airport Fees

contains the specific rules that apply to

a complaint filed by one or more U.S.

or foreign air carriers for a

determination of the reasonableness of a

fee increase or a newly established fee

imposed upon the carrier by the owner

or operator of an airport. This subpart

also applies to requests by the owner or

operator of an airport for such a

determination.

Since Subpart F was adopted in

February 1995, we had not proposed

any changes to it in the NPRM except

to make the provisions internally

consistent with the rest of revised part

302, such as by changing section

reference numbers (e.g., in § 302.617,

the reference to § 302.28(a) is being

changed to § 302.32(a)), and to include

references to the subpart in the index in

Appendix A.

However, we have decided to take

this opportunity to revise Subpart F in

order to eliminate redundancies,

renumber the paragraphs to conform

with the numbering system in the rest

of part 302, and make editorial changes

for purposes of clarity. In addition,

because the procedures for determining

the reasonableness of airport fees are

identical regardless of whether the

proceeding has been instituted by a

complaint from an air carrier or by a

request from an airport, those

procedures, which are now contained in

separate sections (current §§ 302.611

and 302.613), are being combined into

new § 302.606.

Specifically, the following changes

are being made:

In the third sentence of paragraph (a)

of § 302.601, the words ‘‘is considered

to have’’ are being added after ‘‘An

airport owner or operator’’ and before

‘‘imposed a fee on an air carrier or

foreign air carrier’’ to make clear that

fees that have been set, regardless of

whether they have been collected, are

covered by the rule. A new paragraph

(c) is being added to that section to state

that ‘‘Except as modified by this

subpart, the provisions of subpart A of

this part apply’’ to conform to revisions

in the other subparts.

Current § 302.603 is being

renumbered as § 302.602. In paragraph

(a) of that section, a reference to § 302.4

is being added after the reference to

§ 302.3 to reflect the changes being

made in those sections. In paragraph (b)

of new § 302.602 and throughout the

rest of the subpart, the reference to ‘‘an

air carrier or foreign air carrier’’ is being

simplified to ‘‘carrier’’.

Also to conform to the rest of the part,

any references to numbers of days in

numerical form, e.g., 7, will now also

include the word for that number, e.g.,

‘‘seven (7)’’.

References to other numbered

sections in the subpart are being

updated to reflect the new section

numbers, e.g., the reference to

§§ 302.611 and 302.613 will now be

§ 302.606.

Current § 302.605 is being

renumbered as § 302.603. In the second

sentence of paragraph (a) of that section,

the statement that the complaint or

request shall include a copy of ‘‘all

supporting testimony and exhibits

available to the carrier on which the

filing party intends to rely’’ is being

revised to eliminate the reference to

‘‘available to the carrier’’ since such

documents available to the airport

should also be included. In paragraph

(b), the reference to the ‘‘Chief of the

Economic and Financial Analysis

Division’’ is being dropped for the more

generic ‘‘Office of Aviation Analysis’’

and the reference to filing several copies

of diskettes containing exhibits with

Department of Transportation Dockets,

the administrative law judge, and the

Office of Aviation Analysis is being

revised to indicate that all 3 copies can

be submitted to Department of

Transportation Dockets instead of

directly with each of the other two

offices. The latter change is being made

at the suggestion of the Airports Council

International (see following section on

comments received on the NPRM). The

provisions in subparagraphs (c)(1) and

(c)(2) concerning service of complaints

are being combined, and the remaining

subparagraphs renumbered. Similarly,

the provisions in subparagraphs (d)(1)

and (d)(2) concerning service of requests

for determinations are being combined.

In new subparagraph (d)(1), a reference

is being included to new § 302.603(c)(1)

to indicate the manner of service and to

eliminate excess verbiage.

Current § 302.607 is being

renumbered § 302.604. In paragraph (d)

of that section, a reference is being

included to new § 302.603(b) to indicate

the format to be used for diskettes and

to eliminate excess verbiage. The

provisions in subparagraphs (e)(1) and

(e)(2) concerning service of answers are

being combined.

Current § 302.609 is being

renumbered § 302.605. In paragraph (d),

a reference to new paragraph

Federal Register / Vol. 65, No. 27 / Wednesday February 9, 2000 / Rules and Regulations 6449

§ 302.603(b) is being included to

indicate the format to be used for

diskettes and to eliminate excess

verbiage. In paragraph (e), a reference to

certifying that the parties served with a

reply have actually received it is being

added to conform to the rules on service

of other types of documents in these

proceedings.

Current § 302.611 is being

renumbered § 302.606 and combined

with current § 302.613 so that the

procedures for review of complaints or

requests for determination are in the

same section. Thus, the provisions of

paragraphs (a) and (e) of current

§ 302.613 are being combined with

current § 302.611(a) into new

§ 302.606(a); current §§ 302.611(b) and

302.613(b) are being combined into new

§ 302.606(b); current §§ 302.611(c) and

302.613(c) are being combined into new

§ 302.606(d); and current §§ 302.611(d)

and 302.613(d) are being combined into

new § 302.606(c). The heading of this

section is also being retitled to reflect

this change.

Current § 302.615 is being

renumbered as § 302.607.

Current § 302.617 is being

renumbered as § 302.608. In that

section, subparagraphs (b)(1) and (b)(2)

relating to service of petitions for review

are being combined into new

subparagraph (b)(1).

Current § 302.619 is being

renumbered as § 302.609. Paragraphs (a)

and (b) of that section are being

combined into new paragraph (a), and

paragraph (c) is being renumbered as

paragraph (b).

Current § 302.621 is being

renumbered as § 302.610. In paragraph

(c) of that section, a reference is being

added to a request for a determination

to indicate that if the Secretary does not

issue a final decision within 120 days

after the filing of such a request, the

decision of the administrative law judge

will be deemed the final order of the

Secretary.

Subpart G—Rules Applicable to Mail

Rate Proceedings and Contracts

combines, replaces and revises subparts

C and O.

Current Subpart C—Rules Applicable

to Mail Rate Proceedings sets forth the

special rules applicable to proceedings

for the establishment of mail rates by

the Department in accordance with

section 41901 of the Statute. These are

the rates paid by the United States

Postal Service to U.S. air carriers for the

transportation of mail within Alaska

and between the U.S. and foreign

countries.

Current Subpart O—Procedure for

Processing Contracts for Transportation

of Mail by Air in Foreign Air

Transportation sets forth procedures

applicable to certain contractor

arrangements for the carriage of mail

between the U.S. Postal Service and

certificated air carriers pursuant to 39

U.S.C. 5402(a).

Certain sections are being revised to

allow the DOT decisionmaker

additional flexibility in dealing with

specific cases. Thus, current

§ 302.305(a) provides that a notice of

objection to the rates proposed in a

show-cause order is due within ten (10)

days and, if such a notice is properly

filed, written answers and any

supporting documents are due within

thirty (30) days. Subsequent to the

issuance of the NPRM, the Department

eliminated the provision for notices of

objection and extended the answer

period to forty-five (45) days, or within

such other period as the order may

specify. (See Orders 97–9–37, 97–11–20,

and 98–6–16.) We are adopting these

changes in new § 302.704(a). In

addition, current § 302.307 is being

revised to allow the decisionmaker to

authorize the filing of additional

pleadings or establish further

procedural steps in lieu of instituting an

oral hearing (new § 302.705(b)) and to

allow the issues in any hearing that is

instituted to be formulated by the

instituting order (new § 302.706(a)).

The provisions of current § 302.306

and certain provisions of § 302.307

concerning the filing of answers are

being combined into new § 302.705

covering further procedures, and current

§§ 302.301, 302.302, and 302.308, and

certain provisions of § 302.307 are being

combined into new § 302.706 entitled

‘‘Hearing.’’

The provisions of paragraphs (a) and

(b) of current § 302.1503 are being

eliminated as unnecessary, and new

§ 302.719 refines and condenses the

data required to reflect current practice.

The subject index contained in

Appendix A—Index to Rules of Practice

is being updated to include additional

references (such as to Fitness Cases and

Airport Fee cases), and to eliminate

obsolete references. Also, to assist users

in locating the newly renumbered

sections, the revised Appendix lists for

each subject both the current section

number(s) and the corresponding new

section number(s).

Comments and Their Resolution

Comments on the proposed changes

were received from Airports Council

International (‘‘ACI’’); American

Airlines, Inc. (‘‘American’’); Continental

Airlines, Inc. (‘‘Continental’’); Dade

County (Florida) Aviation Department

(‘‘Dade’’); Mr. Richard J. Fahy, Jr., an

aviation attorney (‘‘Mr. Fahy’’); and

United Air Lines, Inc. (‘‘United’’). The

comments will be discussed and

resolved in the order in which their

subject matter appears in the proposed

rule.

Subpart A

Section 302.3(c)(1) Number of Copies

The NPRM proposed to continue the

current rule, as amended in a 1996

rulemaking (Docket OST–96–1436, 61

FR 29284, June 10, 1996), which sets

forth the number of copies, ranging from

three to nine, to be filed in each of 19

types of aviation proceedings.

Comments: Mr. Fahy recommends

that the Department standardize the

number of copies to be filed in

proceedings so that the rule will not

have to be consulted each time a

different type of filing is made.

Resolution: After reviewing our needs

in the various types of aviation

proceedings, we have decided not to

change the rule at this time.

Section 302.7(e)(2) Electronic service of

documents

The NPRM proposed that adequate

proof of service of a document would

include ‘‘a certificate of successful

transmission executed by the person

transmitting the document by facsimile

or electronic mail, listing the facsimile

number or electronic mail address to

which the document was sent.’’

Comments: Continental and United

request a clarification of the term

‘‘successful transmission.’’ They

contend that it should be sufficient to

certify that the document was

transmitted by the method stated and is

presumed to have been received unless

the sender receives notice of an

unsuccessful transmission. United

further recommends that, in the case of

a transmission failure, a party should be

allowed to employ another means of

service without having to inform the

Department.

Resolution: We agree with the

commenters that requiring persons who

are electronically serving documents to

obtain signed statements or certificates

acknowledging receipt is overly

burdensome. Upon reconsideration, we

believe that adequate proof of electronic

service would consist of a certificate of

successful transmission by the sender,

including the facsimile number or

electronic mail address, and a statement

that the sender has not received any

indication that the electronic

transmission was unsuccessful.

Moreover, if an electronic transmission

should fail, parties should be allowed to

choose another authorized means of

service without being required to notify

6450 Federal Register / Vol. 65, No. 27 / Wednesday February 9, 2000 / Rules and Regulations

the Department. Therefore, we are

amending proposed § 302.7(e) by

deleting paragraph (3) and adding the

following language at the end of

paragraph (2): ‘‘and stating that no

indication was received that any

transmission had failed. In the event of

an electronic transmission failure, any

other authorized means of service may

be substituted and the appropriate proof

of service provided.’’

Section 302.12(d)(1)(i) Confidentiality

motions

The present rule (§ 302.39(e)(2)(i)), the

text of which is unchanged in the

NPRM, states that motions for

confidential treatment shall include ‘‘a

description of the information sought to

be withheld, sufficient for identification

of the same.’’

Comments: Continental suggests that

the rule should require such motions to

contain an index of the material

requested to be held confidential,

including a title, description of the

document, document number, and

number of pages.

Resolution: Upon review, we consider

the instructions for identifying the

material (‘‘a description of the

information sought to be withheld,

sufficient for identification of the

same’’) to be vague, especially in cases

where confidentiality is requested for

multiple documents, or portions of

documents, or for documents that

appear similar. Therefore, we believe

confidentiality motions should include

an index of the documents covered by

the motion. The rule is being amended

to require ‘‘an index listing each

document by an identifying number,

and including its title, description and

number of pages, and, if relevant, the

specific location within a document.’’

Section 302.28(b) Cost of daily

transcript

The NPRM retains the language in the

current rule (§ 302.24(l)(2)) except for

the addition of a fourth factor—the cost

to the Department—to be considered by

the administrative law judge in

determining whether ordinary or daily

transcripts are needed in a particular

proceeding. The rule states that if the

administrative law judge determines

that an ordinary transcript is adequate,

any party to the proceeding may make

arrangements with the reporting firm to

provide a daily transcript to the

Department, for which extra service the

requesting party will pay.

Comments: United believes that, with

respect to daily transcripts, the

Department should make certain that its

contracts with reporting firms are

enforced with respect to reasonable

prices for both the Department and

other parties, and that transcripts

requested on a daily basis by nonDepartment parties are provided daily.

Dade advocates that the Department

should ensure that (1) both the ordinary

and daily rates are reasonable, (2) ‘‘cost

to the Department’’ is removed as a

factor to be considered by the

administrative law judge in deciding

upon the necessity of a daily transcript,

(3) daily transcripts shall be required in

all proceedings involving airport fees

(Subpart F), (4) the Department shares

the cost equally with other parties who

decide to order daily transcripts, and (5)

parties are allowed to choose a different

reporting firm if its rates for daily

transcripts are more reasonable. ACI

also recommends that the Department

seek more inexpensive official reporting

services for hearing cases.

Resolution: Among the criteria for

determining whether an ordinary or

daily transcript is required in any

particular proceeding, we included

‘‘cost to the Department’’ (§ 302.28(b)(3))

because that factor is presently taken

into account by the administrative law

judges. Adoption of the commenters’

recommendations would inevitably lead

to extensive, complex contract

negotiations, including lengthy

negotiations about what is ‘‘reasonable’’

under certain circumstances. While we

appreciate the concern about costs, and

the need to reduce costs for all parties

including the government, procedural

rulemakings are not the proper place to

resolve contract costs and availability

issues on this matter. In addition, we do

not believe that a specific requirement

for daily transcripts in subpart F

proceedings should be included in the

rule and will continue to leave that

decision to the discretion of the

presiding administrative law judge. We

also see no reason to change the rule to

require the Department to share equally

in the cost of daily transcripts ordered

by another party if the administrative

law judge has determined that ordinary

transcripts are adequate. In addition, we

do not agree that parties should be

allowed to select a court reporter

different from the one selected by the

administrative law judge because

multiple versions of the ‘‘official’’

transcript may result. Therefore, we will

adopt the rule as proposed.

Subpart B

Section 302.202(a) Maps and illustrative

data

The NPRM, like the present rule

(§ 302.4(a)), requires applicants for

certificate authority to provide the data

called for in part 201 of this chapter.

Comments: Continental observes that

adherence to part 201 filing

requirements would obligate applicants

to provide a map and illustrative data in

all cases. These should be required only

of applicants for certificate authority ‘‘as

directed by the Department.’’

Resolution: The requirements that

applicants must provide a map showing

the proposed points of service and

mileages, and an illustrative service

proposal, formerly found in § 201.4(c)(4)

and § 201.4(e)(1), respectively, were

removed in a 1992 rulemaking (see 57

FR 38765, August 27, 1992). Therefore,

no change in the proposed rule is

required.

Section 302.202(d) Energy statement

Comments: United and Continental

urge the Department to remove the

requirement that each application must

be accompanied by an energy statement

in accordance with part 313 of this

chapter. [The NPRM inadvertently

referred to this statement as an

‘‘Environmental Evaluation’’ which is

incorrect and has been changed in the

Final Rule.] Section 313.4(a) of that part

requires applicants to file an energy

statement if the air service for which

authority is sought would result in a

near-term net annual increase in fuel

consumption of 10 million gallons or

more. The objectors state that the fuel

crisis of the 1970s, which prompted the

issuance of this rule, is no longer

relevant, and that such a statement is

costly to prepare and seldom used.

Resolution: Concerns about fuel

consumption that arose in the 1970s

have not disappeared. Today, when a

proposal involves a substantial increase

in fuel usage, we must conclude that the

public benefits derived from the

proposed service outweigh the

disadvantages. Thus, it is not

appropriate to remove the provision

from the rule. Moreover, the part 313

requirements implementing the Energy

Policy and Conservation Act (42 U.S.C.

6362(b)) have been progressively

qualified and narrowed until they have

been minimal in the few cases in which

they have been triggered. Elaborate

calculations rarely have been required,

and certificate applications ‘‘where no

determination of public convenience

and necessity is required’’ are

specifically excluded from this

requirement (§ 313.4(b)(5)). In addition,

proposed § 302.202(d) now contains the

qualifier ‘‘Where required,’’ reflecting

that, in many circumstances,

information on substantial changes in

fuel usage may be omitted. Therefore,

no change in the proposed rule will be

made, except to correct the reference to

‘‘energy statement’’ in place of

Federal Register / Vol. 65, No. 27 / Wednesday February 9, 2000 / Rules and Regulations 6451

‘‘environmental evaluation’’ as noted

above.

Section 302.203(a)(2) Service on the

FAA

A new provision would require an

applicant to serve a complete copy of its

certificate application on the Manager of

the Federal Aviation Administration

Flight Standards District Office

processing any FAA authority needed to

conduct the proposed operations.

Comments: United suggests that the

Department clarify which carriers

would be subject to this requirement

since many would only require minor

amendments to their FAA Operations

Specifications.

Resolution: The proposed

requirement—that an applicant should

serve a complete copy of its certificate

application on the Manager of the FAA

Flight Standards District Office

processing any FAA authority needed to

conduct the proposed operations—was

added to enhance the informationsharing process between the Office of

the Secretary and the FAA regarding an

applicant’s proposed new services. Even

minor amendments in certificate

authority could require FAA action.

Therefore, we believe it is appropriate,

and not unduly burdensome, for the

applicant’s local FAA office to be served

with a copy of any application seeking

a change in the applicant’s certificate

authority. No change in the proposed

rule will be made.

Section Verification (under 18 U.S.C.

1001)

Current § 302.4(b) requires that every

authorized or required document filed

with the Department must be signed by

the party filing that document or by a

duly authorized representative of that

party, certifying that he or she has read

the document and believes every

statement contained therein to be true

and not misleading. In addition, current

§ 302.1707 requires that the facts

contained in pleadings filed under

current Subpart Q (new Subpart B) be

attested to in an affidavit signed by

persons who are knowledgeable about

the facts and who would be called as

witnesses to substantiate the facts if an

oral hearing became necessary. New

§ 302.206 would require a certification

in accordance with 18 U.S.C. 1001, to be

signed by a knowledgeable individual

(as described in § 302.1707), that, under

penalty of fine and/or imprisonment, he

or she has not knowingly or willfully

falsified or concealed any material fact

or made any false statement, or

knowingly used any document

containing such a statement, in

connection with the preparation, filing

or prosecution of the pleading. Similar

certifications are required for electronic

filings in accordance with instructions

at the Dockets DMS internet web site.

Comments: American recommends

that the required certification be moved

to Subpart A and amended to provide

that the certification requirement

applies to all pleadings, and that the

certification is deemed to be

incorporated in all pleadings signed by

an attorney. Continental and United

maintain that the requirement of an

additional certification to be signed by

an officer of the company is redundant

to the certification presently required in

§ 302.4(b). United adds that the

proposed verification is only needed in

the rare event of a hearing case, and

that, for non-hearing cases, the

certification required in § 302.4(b) is

sufficient. Mr. Fahy recommends that

the proposed certification requirement

be limited to applicants for initial

certificate authority.

Resolution: It has been our concern

that the ‘‘subscription’’ required in

§ 302.4(b) and the ‘‘verification’’

required in current § 302.1707 do not

sufficiently bind the applicant in all

cases. We have experienced a number of

proceedings in which an outside

attorney or other person engaged to

prepare and file the application has

signed a subscription attesting to the

veracity of the statements and other

material in the documents filed when in

actuality that individual was attesting

only to the fact that the information had

been represented by his or her client as

being accurate.

We believe that a certification of

veracity is more reliable when signed by

a principal of the applicant. The current

subscription in § 302.4(b), which

requires a certification to be signed by

‘‘the [filing] party, or by a duly

authorized officer or the attorney-at-law

of record of such party, or by any other

person so authorized’’ is not as broad as

the verification in current § 302.1707,

which requires an attestation of the

‘‘facts asserted in any pleading’’ by

‘‘persons having knowledge of them.’’ In

§ 204.3(v) of this chapter, applicants

filing information in support of a fitness

determination are required to include a

verification in accordance with 18

U.S.C. 1001 to be signed by the person

signing the pleading, ‘‘who shall be a

principal owner, senior officer, or

internal counsel of the applicant.’’ In

our experience, the contents of

pleadings covered by the latter

attestation have been found to be the

most truthful and accurate. For these

reasons, we disagree with American’s

view that the certification should be

deemed to be incorporated in all

pleadings signed by an attorney, but we

agree with its recommendation that the

certification should apply to all types of

pleadings and should be relocated to

subpart A. We also agree with

Continental and United that two such

certifications (§ 302.4(b) and § 302.206)

are superfluous. We appreciate United’s

argument that the verification as

proposed in § 302.206, which is to be

signed by ‘‘someone who will appear as

a witness to substantiate the facts

asserted if an oral hearing becomes

necessary,’’ is misleading inasmuch as

hearing cases are now rare events.

Therefore, we have decided to change

§ 302.206 so that it merely refers readers

to § 302.4(b), which is being amended to

read as follows: ‘‘Verification: The

following certification shall be included

with every pleading filed under this

part: ‘Pursuant to Title 18 United States

Code Section 1001, I [the individual

signing the pleading, who shall be a

principal owner, senior officer, or

internal counsel of the pleader], in my

individual capacity and as the

authorized representative of the pleader,

have not in any manner knowingly and

willfully falsified, concealed or failed to

disclose any material fact or made any

false, fictitious, or fraudulent statement

or knowingly used any documents

which contain such statements in

connection with the preparation, filing

or prosecution of the pleading. I

understand that an individual who is

found to have violated the provisions of

18 U.S.C. section 1001 shall be fined or

imprisoned not more than five years, or

both.’ ‘‘ We believe that restating the

sanctions for violating 18 U.S.C. 1001

will serve as a visual reminder to the

signer of the gravity of his or her

attestation.

Section 302.212 International route

cases—applicability

In the NPRM, the provisions in

current §§ 302.1701(a) and 1720(c)

would be combined to provide that any

person may file an application for the

same authority as sought in an

application to obtain, renew, amend, or

transfer a certificate authorizing air

transportation over an international

route.

Comments: United points out that, by

combining language from the two

current sections, the Department seems

to be inviting applications from

competing carriers seeking authority

that is the subject of a transfer

application, although the Department’s

policy has been not to entertain

competing applications relating to

certificate transfers.

Resolution: The proposed combining

of the provisions of current

6452 Federal Register / Vol. 65, No. 27 / Wednesday February 9, 2000 / Rules and Regulations

§§ 302.1701(a) and 1720(c) into new

§ 302.212(a) would not result in a

change in the current policy. As United

notes, the proposed rule allows the

filing of applications from competing

carriers for authority that is the subject

of a transfer application, despite the

Department’s general policy of not

entertaining such applications (see

Orders 92–3–49 at 7 and 91–8–1). We

agree with United and have removed

certificate transfers from the provisions

of § 302.212(c) which allows for the

filing of conforming applications in

other types of certificate cases.

Subpart C

Section 302.301 Exemptions

This section states that Subpart C

contains the rules applicable to

proceedings for exemptions under

sections 40109 and 41714 of the Statute,

including emergency exemptions.

Comments: American, United, and

Continental propose that the rules for

exemptions also apply to applications

for frequency allocations under

international agreements.

Resolution: We agree with the

commenting air carriers that the rules

for exemptions in new subpart C should

also apply to applications for frequency

allocations under international

agreements. Indeed, the carriers’

suggestion can usefully be applied to

other proceedings in which the

Department must allocate limited

bilateral rights, such as third-country

code-sharing, charters, or designation to

exercise other limited opportunities.

While we often will issue a notice or

order to establish procedures in such

cases, it will be helpful to identify

exemption procedures in this subpart as

the ‘‘default’’ process to be followed

unless or until we specify otherwise. We

will amend § 302.301 accordingly and

revise the title of the subpart to ‘‘Rules

Applicable to Exemption and Certain

Other Proceedings.’’

Section 302.304(a)(2)—Service of

notices of exemptions

The proposed rule (formerly

§ 302.403(b)), requires that persons

filing an application for an exemption

shall serve a notice that the application

has been filed.

Comments: United argues that the

exemption itself, not a notice, should be

served since the answer period is short

and the exemptions are usually not

voluminous.

Resolution: We concede United’s

point that it is more expedient when

interested parties in an exemption

proceeding are served with the entire

exemption application, rather than

merely a notice. We have found that

most applicants already serve complete

applications voluntarily. Moreover, if

such ‘‘full service’’ were the rule, it

would eliminate the need for the

Department to make a determination in

each case whether the proceeding is

likely to be contested and then ordering

service of the complete application.

Such a rule also would likely reduce the

number of late-filed comments. After

consideration, we believe that the added

burden on applicants of serving

complete applications (which are

generally not lengthy) is not so

substantive as to outweigh the benefit to

interested parties in terms of more

timely access to the entire application

and to the Department in terms of

facilitated procedures. Therefore, we

will amend § 302.304(a)(2) accordingly.

Section 302.304(b)(4) Service of

documents in slot exemptions

This new provision requires

applicants for slot exemptions under

section 41714 of the Statute to serve the

manager of the affected airport, the

mayor of the city that it serves, and the

Governor of the State in which it is

located.

Comments: American, United and

Continental advocate that slot

exemption applications should also be

served on all U.S. carriers that publish

schedules in the Official Airline Guides

for the airport in question.

Resolution: We appreciate the

rationale of the responding airlines in

asserting that U.S. carriers providing

scheduled service to an airport at which

an applicant is seeking a slot exemption

are ‘‘interested parties’’ and should be

served copies of the exemption

application. Consequently, we will

amend § 302.304(b)(4) to provide for

service to such carriers by applicants for

slot exemptions.

Section 302.308 Replies to answers

This rule (former § 302.407) provides

that an applicant may file a reply to

answers to an exemption application

within seven days of the last day of the

answer period.

Comments: American, United, and

Continental contend that, not only

applicants, but any interested party,

should be allowed to file a reply in

exemption proceedings, as is allowed in

certificate and licensing cases, so that

other parties will not need to request

leave to file their replies.

Resolution: We agree with the

responding airlines that any interested

party should be allowed to file a reply

in exemption proceedings. Liberalizing

the rule in this way will save parties the

burden of having to file, and the

Department of having to rule on,

motions for leave to file unauthorized

documents. Therefore, we will amend

§ 302.308 accordingly.

Subpart D

Section 302.403 Informal complaints

Comments: Continental argues that

the information and allegations

contained in an informal complaint and

the identity of the complainant should

be kept confidential.

Resolution: What Continental

proposes reflects our existing practice

with respect to maintaining the

confidentiality of the contents of an

informal complaint and the identity of

the complainant. We plan to continue

this practice in the future. However, in

the course of conducting an informal

investigation, we may at times have to

reveal this information to the

investigated party if necessary to obtain

its response to the complaint. Our

experience is that this existing practice

is an effective use of limited resources,

expedites the investigation, and

increases accuracy without unduly

prejudicing the rights of the parties

involved.

Section 302.406 Action time on formal

enforcement complaints

The rule (adapted from the existing

practice under current § 302.205(a))

allows the Assistant General Counsel a

‘‘reasonable time’’ after the filing of an

answer to a formal complaint to either

issue a notice instituting a formal

enforcement proceeding or an order

dismissing the complaint.

Comments: United recommends the

retention of the existing rule, which

requires Department staff to process or

dismiss an enforcement complaint

within 60 days, which will avoid

indefinite delays. United notes that no

reason was given in the NPRM for the

proposed change.

Resolution: We disagree with United

and will adopt the rule as proposed. We

have found that most third-party

complaints require considerable timeconsuming follow-up investigation by

the Office of Aviation Enforcement and

Proceedings, and this proposed change

would reflect the current Department

and industry practice in dealing with

third-party complaints. Our experience

is that the 60 days set forth in the

existing rule rarely, if ever, permits

enough time to conduct an investigation

and satisfactorily resolve issues that

may be raised. We are, however,

sensitive to United’s concerns about

indefinite delays, and will endeavor to

ensure that investigations are conducted

as promptly as possible. We note that a

Federal Register / Vol. 65, No. 27 / Wednesday February 9, 2000 / Rules and Regulations 6453

complainant or respondent retains the

right under the rules as revised to move

that the Deputy General Counsel require

the Assistant General Counsel to act if

he or she finds there to be an

unreasonable delay in acting on a formal

complaint.

Subpart E

Sections 302.501–302.507 Rates, Fares

and Charges in Foreign Air

Transportation

Comments: United points out that a

related rulemaking proposes to

eliminate the requirement that rates and

charges for certain foreign air

transportation be filed in tariffs (see

NPRM 97–1, issued in Docket OST–97–

2070 (62 FR 10758, March 10, 1997)).

United asserts that elimination of the

requirement to file tariffs would be

problematical since the procedures for

complaining against foreign rates, fares,

and charges are linked to the

submission of the matter in a tariff.

United urges that the Department

determine how the tariff changes in the

rulemaking cited above will affect

Subpart E and consolidate the two

actions.

Resolution: Under the NPRM issued

in Docket OST–97–2070, current part

302 procedures would continue in force

for complaints against tariffs in those

markets where we require that tariffs be

filed. Since these markets are restrictive,

we expect that most, if not all,

complaints against carrier pricing would

arise in just these markets. However,

there are other remedies that U.S.

carriers may take in the unlikely event

that a foreign carrier or government

pricing practice adversely affects their

interests in the markets where tariffs are

no longer filed. For example, U.S.

carriers can bring the matter to the

attention of the Department which can

address the matter through direct

contact with foreign officials, or, under

the terms of the proposed rule, could

require the foreign carrier to file its

tariffs. Once the tariff was filed, normal

complaint procedures would apply. No

change in the proposed rules will be

made.

Subpart F

Section 302.605 Service of documents

The proposed rule (current

§ 302.605(b)) requires parties filing a

complaint about airport fees to submit a

copy of each diskette to Department of

Transportation Dockets, the Office of the

Chief Administrative Law Judge (M–50),

and to the Chief of the Economic and

Financial Analysis Division of the

Office of Aviation Analysis (X–55).

Comments: ACI notes that, due to

security procedures, persons filing

diskettes with M–50 and X–55 have

difficulty gaining entrance to the DOT

building, and recommends that the

Department make other arrangements

for the latter two offices to receive the

diskettes.

Resolution: To facilitate service of

diskette copies of complaints about

airport fees, we will amend § 302.605(b)

to indicate that service of all of the

diskettes will be acceptable if made at

Department of Transportation Dockets.

Parties may also use the electronic

document filing system available

through the DOT Dockets DMS internet

web site. In addition, because of certain

organizational changes made at the

Department, we will remove the

reference to the Chief of the Economic

and Financial Analysis Division and

refer only to the Office of Aviation

Analysis (X–50), and change the

reference to the Office of Chief

Administrative Law Judge to Office of

Hearings (M–20).

General

Comments: Continental suggests that,

since applicants may petition for

reconsideration of final Department

actions, intermediate review procedures

are unnecessary; therefore, the

Department should consider eliminating

tentative decisions of the DOT

decisionmaker and show-cause orders.

Resolution: We appreciate

Continental’s suggestion with respect to

intermediate actions and concede that

the matter is deserving of review.

However, such an evaluation would be

a significant undertaking and would

require the issuance of a separate

NPRM, since the issue would generate

considerable interest. For the present,

since our current procedures fulfill our

obligations under the Administrative

Procedures Act, we will not modify

them at this time.

Changes to Filing Time Periods

The NPRM proposed to decrease a

number of the time periods for filing

responsive pleadings in U.S. and foreign

air carrier licensing cases in an effort to

expedite those proceedings. For

example, in new §§ 302.204 and

302.212, we proposed to shorten the

period allowed for answers to U.S. air

carrier certificate applications from

twenty-eight (28) to twenty-one (21)

days.

A number of comments to the NPRM

suggested further changes to the current

and proposed filing periods in part 302.

We believe that the commenters’

proposals have merit to the extent that

they suggest reducing filing periods for

a number of items, which, in turn, will

enable us to expedite proceedings even

further. Some of the comments also

suggest other changes, such as

eliminating separate dates for filing

exceptions and briefs in hearing cases.

Except for the changes to the filing

periods in licensing cases proposed in

the NPRM, most of the time periods in

part 302 have not been comprehensively

reviewed in a number of years.

Moreover, as we have already noted, the

Department’s own practices and

procedures have changed dramatically

in recent years with the overwhelming

majority of cases being handled on the

written record rather than through oral

evidentiary proceedings. As a result, we

have decided to re-evaluate all of the

time periods in part 302 to determine

whether any changes are warranted. We

have decided to issue a Supplemental

Notice of Proposed Rulemaking to deal

with this issue, and we will consider the

additional changes proposed by some of

the commenters in that Supplemental

Notice.

The following discussion identifies

the various references to filing periods

for which we did propose changes in

the NPRM, summarizes and evaluates

relevant comments received about them,

if any, and indicates whether the

changes are being adopted as proposed

or with revisions.

Licensing Cases

Section 302.204 Responsive documents

in certificate/permit proceedings

The NPRM proposed to shorten the

answer period to U.S. air carrier

certificate applications (both initial

fitness and international route awards)

and in foreign air carrier permit cases

(current § 302.1720(d)) from twentyeight (28) to twenty-one (21) days after

the original or amended application is

filed, and added a reply period of

fourteen (14) days.

Comments: American proposes a

further shortening of the answer period

to ten (10) days. American, United, and

Continental also advocate shortening

the newly proposed period for replies

from fourteen (14) to seven (7) days. Mr.

Fahy opposes the additional shortening

urged by the air carriers, stating that

additional time is often needed,

particularly by small firms, to prepare

the responses.

Resolution: After considering the

matter further, we have decided to

adopt the proposed twenty-one (21)-day

period for answers and fourteen (14)-

day period for replies. We will consider

the suggested additional changes in the

supplemental rulemaking.

6454 Federal Register / Vol. 65, No. 27 / Wednesday February 9, 2000 / Rules and Regulations

Section 302.208 Petitions for oral

presentation or judge’s decision

The current rule (§ 302.1712(c))

allows for petitions requesting an oral

evidentiary proceeding, oral argument

or the issuance of an administrative law

judge decision to be filed in certificate

cases fifty-two (52) days after the

application is filed; in restriction

removal cases thirty-five (35) days after

the application is filed; and in foreign

permit cases fourteen (14) days after the

due date for answers. The proposed rule

(§ 302.208) replaces and is almost

identical to the current rule, except for

the timing of the filing of the petitions.

Proposed § 302.208(b) provides that

petitions shall be filed no later than the

due date for answers in proceedings

governed by proposed § 302.211,

§ 302.212, and § 302.213, which is

proposed to be twenty-one (21) days.

In addition, proposed § 302.208(a)

provides that such petitions shall be

supported by a detailed explanation of:

‘‘(1) Why the evidence or argument to be

presented cannot be submitted in the

form of written evidence or briefs; (2)

which issues should be examined by an

administrative law judge and why such

issues should not be presented directly

to the DOT decisionmaker for decision;

(3) an estimate of the time required for

the oral presentation and the number of

witnesses whom the petitioner would

present; and (4) if cross-examination of

any witness is desired, the name of the

witness, if known, the subject matter of

the desired cross-examination or the

title or number of the exhibit to be

cross-examined, what the petitioner

expects to establish by the crossexamination, and an estimate of the

time needed for it.’’

Comments: Mr. Fahy argues that the

proposed rule would require petitions

asking for oral hearing to be filed at the

same time answers are due to

certificate/permit applications. Included

in the petition must be witness names,

issues to be examined, subject matter of

cross-examination—information that

may not yet be known at the time of the

objection. Mr. Fahy recommends

replacing these data requirements with

‘‘a good cause showing’’ of why a

hearing is necessary. If the Department

applies the proposed conditions in

certificate cases, he contends, it may

apply the same standards in other cases,

e.g., foreign code-share arrangements.

Resolution: After evaluating the

comments, we have decided to adopt

the proposal that petitions be due at the

same time as answers to applications,

which we have now set at twenty-one

(21) days. However, we agree with Mr.

Fahy that information on potential

witnesses and time required for oral

presentations would unlikely be known

at the time the petition is filed.

Therefore, we are amending the rule to

require the petition to contain items (1)

and (2) as part of the petition itself, with

items (3) and (4) to be filed at a later

time if the Department decides to have

or is leaning toward having an oral

hearing.

Section 302.212 Procedures in

certificate cases involving international

routes

The proposed rule shortens the period

in current § 302.1720(c) for filing

conforming applications [for the same

authority as sought in an application to

obtain, renew, or amend a certificate]

and requests to modify the issues to be

decided and to consolidate applications,

from twenty-eight (28) to twenty-one

(21) days after filing of the original

application. Answers would continue to

be due within fourteen (14) days after

the filing of the conforming application

or motion.

Comments: American advocates

shortening the period for filing

conforming applications even further, to

ten (10) days, and both American and

Continental suggest adopting a seven

(7)-day answer period. Mr. Fahy

opposes any further shortening of these

periods.

Resolution: We have decided that the

filing time for conforming applications

and motions to modify scope should be

set at twenty-one (21) days as proposed

so that the dates for filing objections,

requests for hearing, conforming

applications, and motions to modify

scope would all be due on the same

date. In this way, the parties and the

Department would be presented with

one set of filings. Generally, our

experience has been that, if one air

carrier objects to the application for an

international route submitted by another

air carrier, it is likely that the objector

expects to apply for the authority being

requested; therefore, the objector would

save the effort of a separate filing by

accompanying its objection with its

request for the authority. We will,

however, consider the additional

changes proposed by the commenters in

the supplemental rulemaking.

Mail Rate Cases

Section 302.704 Objections and answers

to order to show cause

The proposed rule, which is identical

to current § 302.305, provides that a

notice of objection to the rates proposed

in an order to show cause is due within

ten (10) days of issuance or the order or

within such other period as the order

may specify. If such a notice is properly

filed, written answers and any

supporting documents shall be filed

within thirty (30) days after the service

of the order to show cause or within

such other period as the order may

specify.

Comments: American argues that

separate dates for objections and

answers are unnecessary and

recommends that the rule require that

fully supported objections be filed

within ten (10) days of service of the

order to show cause.

Resolution: Subsequent to the

issuance of the NPRM, the Department,

in Order 97–9–37, served October 3,

1997, proposed to eliminate the

provision for notices of objection and to

extend the answer period to forty-five

(45) days after the service date of the

show cause order for Alaska bush and

mainline mail rates. Order 97–11–20,

served November 19, 1997, made final

this proposed change to the procedural

schedule for Alaska mail rate orders. In

addition, in Order 98–6–16, served June

23, 1998, the Department, among other

things, proposed identical procedural

changes for international mail rates. No

objections to this proposed change were

received. After reviewing the matter, we

are eliminating the provision for

separate filing dates and amending the

rule to require only answers to be filed

within forty-five (45) days of the date of

service of the order to show cause,

unless otherwise stated in that order.

Correction of References to Sections in

Part 302 Throughout Chapter II

The following table contains the

changes that are being made throughout

Chapter II to correct what are now

obsolete references to sections in part

302.

Location of rule to be changed Current reference to part 302 Revised reference to part 302

§ 200.2 ................................................................ § 302.2 .............................................................. § 302.1(c)

§ 211.12 .............................................................. Subpart Q ......................................................... Subpart B

§ 213.2 ................................................................ Rule 37 ............................................................. Rule 14

§ 213.5(c) ........................................................... Rule 37 ............................................................. Rule 14

§ 216.4(a) ........................................................... §§ 302.3(b), 302.4(b), (c) ................................. §§ 302.3(b), 302.4(a), (b)

Federal Register / Vol. 65, No. 27 / Wednesday February 9, 2000 / Rules and Regulations 6455

Location of rule to be changed Current reference to part 302 Revised reference to part 302

§ 216.4(b) ........................................................... § 302.8 .............................................................. § 302.7

§ 291.10 .............................................................. Subpart Q ......................................................... Subpart B

§ 300.2(b)(2) ....................................................... § 302.22a .......................................................... §§ 302.2, 302.18

§ 300.2(b)(4) ....................................................... § 302.24 ............................................................ §§ 302.17–302.38

§ 300.2(c)(10) ..................................................... § 302.18 ............................................................ § 302.11

§ 300.2(d) ........................................................... §§ 302.14, 302.18 ............................................. § 302.11(e)

§ 300.20(c) ......................................................... Subpart B ......................................................... Subpart D

§ 303.4(b) ........................................................... § 302.19 ............................................................ § 302.25

§ 303.45(c) ......................................................... § 302.15 ............................................................ § 302.20

§ 305.7(b) ........................................................... §§ 302.8, 302.21 ............................................... §§ 302.7, 302.27(c)

§ 305.10 .............................................................. §§ 302.19(g), 302.39 ........................................ §§ 302.25(g), 302.12

§ 305.11 .............................................................. Subpart B ......................................................... Subpart D

§ 305.12 .............................................................. § 302.202 .......................................................... §§ 302.4(b)

§ 377.10(c)(4) ..................................................... § 302.909 .......................................................... Removed

§ 385.10(b) ......................................................... Subpart B ......................................................... Subpart D

§ 385.11(b) ......................................................... Subpart B ......................................................... Subpart D

§ 385.11(d) ......................................................... § 302.215 .......................................................... § 302.417

§ 385.19(i) .......................................................... § 302.39 ............................................................ § 302.12

§ 385.31(c) ......................................................... §§ 302.3(a), (b), (c), 302.4 ............................... §§ 302.3, 302.4

§ 399.18 .............................................................. § 302.909 .......................................................... Removed

Executive Order 12866 (Regulatory

Planning and Review)

The Department has analyzed the

economic and other effects of the

amendment and has determined that

they are not ‘‘significant’’ within the

meaning of Executive Order 12866. The

amendment will not have an annual

effect on the economy of $100 million

or more or adversely affect in a material

way the economy, a sector of the

economy, productivity, competition,

jobs, the environment, public health or

safety, or State, local, or tribal

governments or communities. It will not

create a serious inconsistency or

otherwise interfere with an action taken

or planned by another agency, and it

will not materially alter the budgetary

impact of entitlements, grants, user fees,

or loan programs or the rights and

obligations of recipients thereof. Nor

does it raise any novel legal or policy

issues arising out of legal mandates, the

President’s priorities, or the principles

set forth in Executive Order 12866. This

rule does not impose any unfunded

mandates.

DOT Regulatory Policies and

Procedures

The amendment is not significant

under the Department’s Regulatory

Policies and Procedures, dated February

26, 1979, because it does not involve

important Departmental policies; rather,

it is being made solely for the purposes

of eliminating or correcting obsolete

requirements and reorganizing the

presentation of the regulations used by

the Department to administer its

aviation economic regulatory functions.

The Department has also determined

that the economic effects of the

amendment are so minimal that a full

regulatory evaluation is not required.

Regulatory Flexibility Act

In accordance with the Regulatory

Flexibility Act, the Department has

evaluated the effects of this action on

small entities, i.e., those air carriers

operating small aircraft (as defined in 14

CFR 298.2) in strictly domestic service.

The changes to the Department’s Rules

of Practice in Proceedings merely

eliminate unnecessary and obsolete

verbiage, reorganize the provisions and

bring them up to date with our current

practice, and place no new requirements

on applicants. Therefore, the

Department certifies that the

amendment will not have a significant

economic impact on a substantial

number of small entities.

Executive Order 12612 (Federalism)

The amendment has been analyzed in

accordance with the principles and

criteria contained in Executive Order

12612. The Department has determined

that the amendment does not have

sufficient federalism implications to

warrant the preparation of a Federalism

Assessment. This amendment will not

have a substantial direct effect on the

States, on the relationship between the

national government and the States, or

on the distribution of power and

responsibilities among the various

levels of government.

National Environmental Policy Act

The Department has also analyzed the

amendment for the purposes of the

National Environmental Policy Act. The

amendment will not have any

significant impact on the quality of the

human environment.

Paperwork Reduction Act

There are no reporting or

recordkeeping requirements associated

with the amendment.

List of Subjects

14 CFR Part 200

Air transportation.

14 CFR Part 211

Administrative practice and

procedure, Air carriers, Pacific Islands

Trust Territory, Reporting and

Recordkeeping requirements.

14 CFR Part 213

Air carriers, Reporting and

Recordkeeping requirements.

14 CFR Part 216

Air carriers.

14 CFR Part 291

Administrative practice and

procedure, Air carriers, Freight,

Reporting and Recordkeeping

requirements.

14 CFR Part 300

Administrative practice and

procedure, Conflict of interests.

14 CFR Part 302

Administrative practice and

procedure, Air carriers, Foreign air

carriers.

14 CFR Part 303

Administrative practice and

procedure, Air carriers, Antitrust,

Reporting and Recordkeeping

requirements.

14 CFR Part 305

Administrative practice and

procedure, Air carriers, Investigations.

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14 CFR Part 377

Administrative practice and

procedure, Air carriers.

14 CFR Part 385

Administrative practice and

procedure, Organization and functions

(Government Agencies).

14 CFR Part 399

Administrative practice and

procedure, Air carriers, Air rates and

fares, Air taxis, Consumer protection,

Small businesses.

Final Rule

For the reasons set out in the

preamble, Title 14, Chapter II of the

Code of Federal Regulations is amended

as follows:

PART 200—[AMENDED]

1. The authority citation for part 200

continues to read as follows:

Authority: 49 U.S.C. Chapters 401, 411,

413, 415, 419, 461.

§ 200.2 [Amended]

2. In § 200.2, remove the reference

‘‘§ 302.2’’ and add, in its place, the

reference ‘‘§ 302.1(c)’’.

PART 211—[AMENDED]

3. The authority citation for part 211

continues to read as follows:

Authority: 49 U.S.C. Chapters 401, 411,

413, 415, 417.

§ 211.12 [Amended]

4. In § 211.12, remove the reference

‘‘Subpart Q’’ and add, in its place, the

reference ‘‘Subpart B’’.

PART 213—[AMENDED]

5. The authority citation for part 213

continues to read as follows:

Authority: 49 U.S.C. Chapters 401, 411,

413, 415, 417.

§ 213.2 [Amended]

6. In § 213.2, remove the reference

‘‘Rule 37’’ and add, in its place, the

reference ‘‘Rule14 ’’.

§ 213.5 [Amended]

7. In § 213.5(c), remove the reference

‘‘Rule 37’’ and add, in its place, the

reference ‘‘Rule 14’’.

PART 216—[AMENDED]

8. The authority citation for part 216

is revised to read as follows:

Authority: 49 U.S.C. Chapters 401, 413,

417.

§ 216.4 [Amended]

9. In § 216.4(a), remove the references

‘‘302.4(b) and (c)’’ and add, in their

place, the references ‘‘302.4(a) and (b)’’.

10. In § 216.4(b), remove the reference

‘‘§ 302.8’’ and add, in its place, the

reference ‘‘§ 302.7’’.

PART 291—[AMENDED]

11. The authority citation for part 291

continues to read as follows:

Authority: 49 U.S.C. Chapters 401, 411,

415, 417.

§ 291.10 [Amended]

12. In § 291.10, remove the reference

‘‘subpart Q’’ and add, in its place, the

reference ‘‘subpart B’’.

PART 300—[AMENDED]

13. The authority citation for part 300

is revised to read as follows:

Authority: 49 U.S.C. subtitle I and

chapters 401, 411, 413, 415, 417, 419, 421,

449, 461, 463, and 465.

§ 300.2 [Amended]

14. In § 300.2(b)(2), remove the

reference ‘‘302.22a’’ and add, in its

place, the references ‘‘302.2 and

302.18’’.

15. In § 300.2(b)(4)(i), remove the

reference ‘‘§ 302.24’’ and add, in its

place, the references ‘‘§§ 302.17–

302.38’’.

16. In § 300.2(c)(10), remove the

reference ‘‘§ 302.18’’ both times it

occurs, and add, in its place, the

reference ‘‘§ 302.11’’ both times it

occurs.

17. In § 300.2(d), remove the

references ‘‘Rules 14 and 18, §§ 302.14

and 302.18’’ and add, in their place, the

references ‘‘Rule 11, § 302.11’’.

§ 302.18 [Redesignated in part and

revised]

18. Paragraph (a–1) of § 302.18 is

redesignated as § 300.18 and revised to

read as follows:

§ 300.18 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.

§ 300.20 [Amended]

19. In § 300.20(c), remove the

reference ‘‘subpart B’’, and add, in its

place, the reference ‘‘subpart D’’.

PART 303—[AMENDED]

20. The authority citation for part 303

is revised to read as follows:

Authority: 49 U.S.C. chapters 401, 413,

417.

§ 303.04 [Amended]

21. In § 303.04(b), remove the

reference ‘‘302.19’’ and add, in its place,

the reference ‘‘302.25’’.

§ 303.45 [Amended]

22. In § 303.45(c), remove the

reference ‘‘§ 302.15’’ and add, in its

place, the reference ‘‘302.20’’.

PART 305—[AMENDED]

23. The authority citation for part 305

is revised to read as follows:

Authority: 49 U.S.C. chapters 401, 417,

461; 5 U.S.C. 555, 556.

§ 305.7 [Amended]

24. In § 305.7(b), remove the

references ‘‘§ 302.21’’ both times it

occurs, and ‘‘§ 302.8’’ both times it

occurs, and add, in their place, the

references ‘‘§ 302.7’’ and ‘‘§ 302.27(c)’’,

respectively.

§ 305.10 [Amended]

25. In § 305.10, remove the references

‘‘§§ 302.19(g) and 302.39’’ and add, in

their place, the references ‘‘§§ 302.25(g)

and 302.12’’.

§ 305.11 [Amended]

26. In § 305.11, remove the reference

‘‘subpart B’’ and add, in its place, the

reference ‘‘subpart D’’.

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§ 305.12 [Amended]

27. In § 305.12, remove the reference

‘‘Rule 202’’ and add, in its place, the

reference ‘‘Rule 4(b)’’.

PART 377—[AMENDED]

28. The authority citation for part 377

is revised to read as follows:

Authority: 49 U.S.C. Chapters 401, 461; 5

U.S.C. 558, 559.

§ 377.10 [Amended]

29. In § 377.10(c)(4), remove the

references ‘‘§§ 302.909 and 399.18’’ and

add, in their place, the reference

‘‘§ 399.18’’.

PART 385—[AMENDED]

30. The authority citation for part 385

continues to read as follows:

Authority: 49 U.S.C. subtitle I, chapters

401, 411, 413, 415, 417.

§§ 385.10, 385.11 [Amended]

31. In §§ 385.10(b) and 385.11(b),

remove the reference ‘‘Subpart B’’ and

add, in its place, the reference ‘‘Subpart

D’’.

§ 385.19 [Amended]

32. In § 385.19(i), remove the

reference ‘‘§ 302.39’’ and add, in its

place, the reference ‘‘§ 302.12’’.

§ 385.31 [Amended]

33. In paragraphs (a) and (e) of

§ 385.31, remove the words ‘‘ten (10)’’

and add, in their place, the words

‘‘seven (7)’’; in § 302.31(c), remove the

references ‘‘(a), (b), and (c),’’.

PART 399—[AMENDED]

34. The authority citation for part 399

is revised to read as follows:

Authority: 49 U.S.C. 40101 et seq.

§ 399.18 [Amended]

35. In § 399.18, remove the words

‘‘§ 302.909 of this chapter (Procedural

Regulations) and’’.

36. Part 302 is revised to read as

follows:

PART 302—RULES OF PRACTICE IN

PROCEEDINGS

Sec.

302.1 Applicability and description of part.

302.2 Definitions.

Subpart A—Rules of General Applicability

302.3 Filing of documents.

302.4 General requirements as to

documents.

302.5 Amendment of documents.

302.6 Responsive documents.

302.7 Service of documents.

302.8 Computation of time.

302.9 Continuances and extensions of time.

302.10 Parties.

302.11 Motions.

302.12 Objections to public disclosure of

information.

302.13 Consolidation of proceedings.

302.14 Petitions for reconsideration.

Non-Hearing Proceedings

302.15 Non-hearing procedures.

Rulemaking Proceedings

302.16 Petitions for rulemaking.

Oral Evidentiary Hearing Proceedings

302.17 Administrative law judges.

302.18 DOT decisionmaker.

302.19 Participation by persons not parties.

302.20 Formal intervention.

302.21 Appearances.

302.22 Prehearing conference.

302.23 Hearing.

302.24 Evidence.

302.25 Subpoenas.

302.26 Depositions.

302.27 Rights of witnesses; attendance fees

and mileage.

302.28 Transcripts of hearings.

302.29 Argument before the administrative

law judge.

302.30 Briefs to the administrative law

judge.

302.31 Initial and recommended decisions;

certification of the record.

302.32 Petitions for discretionary review of

initial decisions or recommended

decisions; review proceedings.

302.33 Tentative decision of the DOT

decisionmaker.

302.34 Exceptions to tentative decisions of

the DOT decisionmaker.

302.35 Briefs to the DOT decisionmaker.

302.36 Oral argument before the DOT

decisionmaker.

302.37 Waiver of procedural steps after

hearing.

302.38 Final decision of the DOT

decisionmaker.

Subpart B—Rules Applicable to U.S. Air

Carrier Certificate and Foreign Air Carrier

Permit Licensing Proceedings

302.201 Applicability.

302.202 Contents of applications.

302.203 Service of documents.

302.204 Responsive documents.

302.205 Economic data and other facts.

302.206 Verification.

Disposition of Applications

302.207 Cases to be decided on written

submissions.

302.208 Petitions for oral presentation or

judge’s decision.

302.209 Procedures for deferral of

applications.

302.210 Disposition of applications; orders

establishing further procedures.

302.211 Procedures in certificate cases

involving initial or continuing fitness.

302.212 Procedures in certificate cases

involving international routes.

302.213 Procedures in foreign air carrier

permit cases.

302.214 Oral evidentiary hearing.

302.215 Briefs to the administrative law

judge.

302.216 Administrative law judge’s initial

or recommended decision.

302.217 Exceptions to administrative law

judge’s initial or recommended decision.

302.218 Briefs to the DOT decisionmaker.

302.219 Oral argument before the DOT

decisionmaker.

302.220 Final decision of the Department.

Subpart C—Rules Applicable to Exemption

and Certain Other Proceedings

302.301 Applicability.

302.302 Filing of applications.

302.303 Contents of applications.

302.304 Service of documents.

302.305 Posting of applications.

302.306 Dismissal or rejection of

incomplete applications.

302.307 Answers to applications.

302.308 Replies to answers.

302.309 Requests for hearing.

302.310 Exemptions on the Department’s

initiative.

302.311 Emergency exemptions.

Subpart D—Rules Applicable to

Enforcement Proceedings

302.401 Applicability.

302.402 Definitions.

302.403 Informal complaints.

302.404 Formal complaints.

302.405 Responsive documents.

302.406 Procedure for responding to formal

complaints.

302.407 Commencement of enforcement

proceeding.

302.408 Answers and replies.

302.409 Default.

302.410 Consolidation of proceedings.

302.411 Motions to dismiss and for

summary judgment.

302.412 Admissions as to facts and

documents.

302.413 Evidence of previous violations.

302.414 Prehearing conference.

302.415 Hearing.

302.416 Appearances by persons not

parties.

302.417 Settlement of proceedings.

302.418 Motions for immediate suspension

of operating authority pendente lite.

302.419 Modification or dissolution of

enforcement actions.

302.420 Saving clause.

Subpart E—Rules Applicable to

Proceedings With Respect to Rates, Fares

and Charges for Foreign Air Transportation

302.501 Applicability.

302.502 Institution of proceedings.

302.503 Contents and service of petition or

complaint.

302.504 Dismissal of petition or complaint.

302.505 Order of investigation.

302.506 Complaints requesting suspension

of tariffs; answers to such complaints.

302.507 Computing time for filing

complaints.

Subpart F—Rules Applicable to

Proceedings Concerning Airport Fees

302.601 Applicability.

302.602 Complaint by a carrier; request for

determination by an airport owner or

operator.

302.603 Contents of complaint or request

for determination.

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302.604 Answers to a complaint or request

for determination.

302.605 Replies.

302.606 Review of complaints or requests

for determination.

302.607 Decision by administrative law

judge.

302.608 Petitions for discretionary review.

302.609 Completion of proceedings.

302.610 Final order.

Subpart G—Rules Applicable to Mail Rate

Proceedings and Mail Contracts

302.701 Applicability.

Final Mail Rate Proceedings

302.702 Institution of proceedings.

302.703 Order to show cause or instituting

a hearing.

302.704 Objections and answers to order to

show cause.

302.705 Further procedures.

302.706 Hearing.

Provision for Temporary Rate

302.707 Procedure for fixing temporary

mail rates.

Informal Mail Rate Conference Procedure

302.708 Invocation of procedure.

302.709 Scope of conferences.

302.710 Participants in conferences.

302.711 Conditions upon participation.

302.712 Information to be requested from

an air carrier.

302.713 DOT analysis of data for

submission of answers thereto.

302.714 Availability of data to the U.S.

Postal Service.

302.715 Post-conference procedure.

302.716 Effect of conference agreements.

302.717 Waiver of participant conditions.

Processing Contracts for the Carriage of Mail

in Foreign Air Transportation

302.718 Filing.

302.719 Explanation and data supporting

the contract.

302.720 Service.

302.721 Complaints.

302.722 Answers to complaints.

302.723 Further procedures.

302.724 Petitions for reconsideration.

Appendix A to Part 302—Index to

Rules of Practice

Authority: 39 U.S.C. 5402; 42 U.S.C., 4321,

49 U.S.C. Subtitle I and Chapters 401, 411,

413, 415, 417, 419, 461, 463, 471.

§ 302.1 Applicability and description of

part.

(a) Applicability. This part governs

the conduct of all aviation economic

proceedings before the Department

whether instituted by order of the

Department or by the filing with the

Department of an application,

complaint, petition, motion, or other

authorized or required document. This

part also contains delegations to

administrative law judges and to the

DOT decisionmaker of the Department’s

function to render the agency decision

in certain cases and the procedures for

review of those decisions. This part

applies unless otherwise specified by

order of the Department.

(b) Description. Subpart A of this part

sets forth general rules applicable to all

types of proceedings. Each of the other

subparts of this part sets forth special

rules applicable to the type of

proceedings described in the title of the

subpart. Therefore, for information as to

applicable rules, reference should be

made to subpart A and to the rules in

the subpart relating to the particular

type of proceeding, if any. In addition,

reference should be made to Subtitle VII

of Title 49 of the United States Code

(Transportation) (‘‘the Statute’’), and to

the substantive rules, regulations and

orders of the Department relating to the

proceeding. Wherever there is any

conflict between one of the general rules

in subpart A and a special rule in

another subpart applicable to a

particular type of proceeding, the

special rule will govern.

(c) Reference to part and method of

citing rules. This part may be referred to

as the ‘‘Rules of Practice’’. Each section,

and any paragraph or subparagraph

thereof, may be referred to as a ‘‘Rule’’.

The number of each rule need include

only the numbers and letters at the right

of the decimal point. For example,

‘‘302.7 Service of documents’’, may be

referred to as ‘‘Rule 7’’.

§ 302.2 Definitions.

Administrative law judge as used in

this part means an administrative law

judge appointed pursuant to 5 U.S.C.

3105.

DOT Decisionmaker as used in this

part is the official authorized to issue

final decisions of the Department as set

forth in § 302.18. This includes the

Assistant Secretary for Aviation and

International Affairs, the senior career

official in the Office of the Assistant

Secretary for Aviation and International

Affairs, the Deputy Secretary, and the

Secretary.

Hearing case or oral hearing case

means any proceeding that the

Department has determined will be

conducted on the record using oral

evidentiary procedures subject to 5

U.S.C. 556 and 557.

Non-hearing case means any

proceeding not involving oral

evidentiary procedures.

Party as used in this part includes the

person initiating a proceeding, such as

an applicant, complainant, or petitioner;

any person filing an answer to such

filing; and any other persons as set forth

in § 302.10.

Statute when used in this chapter

means Subtitle VII of Title 49 of the

United States Code (Transportation).

Subpart A—Rules of General

Applicability

§ 302.3 Filing of documents.

(a) Filing address, date of filing,

hours. (1) Documents required by any

section of this part to be filed with the

Department must be filed with

Department of Transportation Dockets at

the Department’s offices in Washington,

DC. Documents may be filed either on

paper or by electronic means using the

process set at the DOT Dockets

Management System (DMS) internet

website.

(2) Such documents will be deemed to

be filed on the date on which they are

actually received by the Department.

Documents must be filed between the

hours of 9:00 a.m. and 5:00 p.m., eastern

standard or daylight savings time,

whichever is in effect in the District of

Columbia at the time, Monday to Friday,

inclusive, except on legal holidays.

Electronic filings may be made at any

time under the process set by the

Department. Electronic filings that are

received after the specified Dockets

Facility hours shall be deemed to be

constructively received on the next

Dockets Facility business day.

(b) Formal specifications of

documents. (1) Documents filed under

this part must be on white paper not

larger than 81⁄2 by 11 inches, including

any tables, charts and other documents

that may be included. Ink must be black

to provide substantial contrast for

scanning and photographic

reproduction. Text must be doublespaced (except for footnotes and long

quotations which may be single-spaced)

using type not smaller than 12 point.

The left margin must be at least 11⁄2

inches; all other margins must be at

least 1 inch. The title page and first page

must bear a clear date and all

subsequent pages must bear a page

number and abbreviated heading. In

order to facilitate automated processing

in document sheet feeders, documents

of more than one page should be held

together with removable metal clips or

similar retainers. Original documents

may not be bound in any form or

include tabs, except in cases assigned by

order to an Administrative Law Judge

for hearing, in which case the filing

requirements will be set by order.

Section 302.35 contains additional

requirements as to the contents and

style of briefs.

(2) Papers may be reproduced by any

duplicating process, provided all copies

are clear and legible. Appropriate notes

Federal Register / Vol. 65, No. 27 / Wednesday February 9, 2000 / Rules and Regulations 6459

or other indications must be used, so

that the existence of any matters shown

in color on the original will be

accurately indicated on all copies.

(c) Number of copies. Unless

otherwise specified, an executed

original, along with the number of true

copies set forth below for each type of

proceeding, must be filed with

Department of Transportation Dockets.

The copies filed need not be signed, but

the name of the person signing the

original document, as distinguished

from the firm or organization he or she

represents, must also be typed or

printed on all copies below the space

provided for signature. Electronic filers

need only submit one copy of the

document, which must conform to the

submission requirements given in the

electronic filing instructions at the

specified DOT DMS internet website

and in this part, as applicable.

Number

of copies

Airport Fees ............................................................................................................................................................................................. 9

Agreements:

International Air Transport Association (IATA) ................................................................................................................................. 6

Other (under 49 U.S.C. 41309) ........................................................................................................................................................ 9

Complaints:

Enforcement ..................................................................................................................................................................................... 5

Mail Contracts ................................................................................................................................................................................... 4

Rates, Fares and Charges in Foreign Air Transportation ................................................................................................................ 6

Unfair Practices in Foreign Air Transportation ................................................................................................................................. 7

Employee Protection Program (14 CFR 314) ......................................................................................................................................... 7

Exemptions:

Computer Reservations Systems (14 CFR 255) ............................................................................................................................. 8

Slot Exemptions (under 49 U.S.C. 41714) ....................................................................................................................................... 7

Tariffs (under 49 U.S.C. Chapter 415 or 14 CFR 221) ................................................................................................................... 5

Other (under 49 U.S.C. 40109) ........................................................................................................................................................ 7

Foreign Air Carrier Permits/Exemptions .................................................................................................................................................. 7

International Authority for U.S. Air Carriers (certificates, exemptions, allocation of limited frequencies, designations, or charters) .... 7

Mail Rate Proceedings ............................................................................................................................................................................ 4

Name Change/Trade Name Registrations .............................................................................................................................................. 4

Suspension of Service (14 CFR 323) ..................................................................................................................................................... 4

Tariff Justifications to exceed Standard International Fare Level ........................................................................................................... 6

U.S. Air Carrier Certificates (involving Initial or Continuing Fitness) ...................................................................................................... 6

Other matters ........................................................................................................................................................................................... 3

(d) Prohibition and dismissal of

certain documents. (1) No document

that is subject to the general

requirements of this subpart concerning

form, filing, subscription, service or

similar matters will be accepted for

filing by the Department, and will not

be physically incorporated in the docket

of the proceeding, unless:

(i) Such document and its filing by

the person submitting it have been

expressly authorized or required in the

Statute, any other law, this part, other

Department regulations, or any order,

notice or other document issued by the

DOT decisionmaker, the Chief

Administrative Law Judge or an

administrative law judge assigned to the

proceeding, and

(ii) Such document complies with

each of the requirements of this

paragraph and 302.7, and for those

electronically filed, the requirements

specified at the DOT DMS internet

website, and is submitted as a formal

application, complaint, petition,

motion, answer, pleading, or similar

paper rather than as a letter, telegram,

or other informal written

communication; Provided, however,

That for good cause shown, pleadings of

any public body or civic organization or

comments concerning tariff agreements

that have not been docketed, may be

submitted in the form of a letter.

(2) If any document initiating, or filed

in, a proceeding is not in substantial

conformity with the applicable rules or

regulations of the Department as to the

contents thereof, or is otherwise

insufficient, the Department, on its own

initiative, or on motion of any party,

may reject, strike or dismiss such

document, or require its amendment.

(e) Official docket copy. With respect

to all documents filed under this part,

the electronic record produced by the

Department shall thereafter be the

official docket copy of the document

and any subsequent copies generated by

the Department’s electronic records

system will be usable for admission as

record copies in any proceeding before

the Department.

(f) Retention of documents by the

Department. All documents filed with

or presented to the Department Dockets

will be retained in the permanent

docket of the Department of

Transportation.

§ 302.4 General requirements as to

documents.

(a) Contents. (1) In case there is no

rule, regulation, or order of the

Department that prescribes the contents

of a formal application, petition,

complaint, motion or other authorized

or required document, such document

shall contain a proper identification of

the parties concerned, a concise but

complete statement of the facts relied

upon and the relief sought, and, where

required, such document shall be

accompanied by an Energy Statement,

in conformity with the provisions of

part 313 of this chapter.

(2)(i) Each document must include

with or provide on its first page:

(A) The docket title and subject;

(B) The relevant operating

administration before which the

application or request is filed;

(C) The identity of the filer and its

filing agent, if applicable;

(D) The name and mailing address of

the designated agent for service of any

documents filed in the proceeding,

along with the telephone and facsimile

numbers and, if available, electronic

mail address of that person; and

(E) The title of the specific action

being requested.

(ii) Department of Transportation

Dockets has an Expedited Processing

Sheet that filers can use to assist in

preparing this index for submission of

paper documents, and an electronic

registration for electronic filing at the

DOT DMS internet website.

6460 Federal Register / Vol. 65, No. 27 / Wednesday February 9, 2000 / Rules and Regulations

(3) All documents filed under this

part consisting of twenty (20) or more

pages must contain a subject index of

the matter in such document, with page

references.

(b) Verification: The following

certification shall be included with

every pleading filed under this part:

‘‘Pursuant to Title 18 United States

Code Section 1001, I [the individual

signing the pleading, who shall be a

principal owner, senior officer, or

internal counsel of the pleader], in my

individual capacity and as the

authorized representative of the pleader,

have not in any manner knowingly and

willfully falsified, concealed or failed to

disclose any material fact or made any

false, fictitious, or fraudulent statement

or knowingly used any documents

which contain such statements in

connection with the preparation, filing

or prosecution of the pleading. I

understand that an individual who is

found to have violated the provisions of

18 U.S.C. section 1001 shall be fined or

imprisoned not more than five years, or

both.’’ In addition, electronic

subscription requirements shall be those

specified at the DOT DMS internet

website.

§ 302.5 Amendment of documents.

(a) An application may be amended

prior to the filing of answers thereto, or,

if no answer is filed, prior to the

issuance of an order establishing further

procedures, disposing of the

application, or setting the case for

hearing. Thereafter, applications may be

amended only if leave is granted

pursuant to the procedures set forth in

§ 302.11.

(b) Except as otherwise provided, if

properly amended, a document and any

statutory deadline shall be made

effective as of the date of original filing

but the time prescribed for the filing of

an answer or any further responsive

document directed towards the

amended document shall be computed

from the date of the filing of the

amendment.

§ 302.6 Responsive documents.

(a) Answers. Answers to applications,

complaints, petitions, motions or other

documents or orders instituting

proceedings may be filed by any person.

In hearing cases, answers may be filed

by any party to such proceedings or any

person who has a petition for

intervention pending. Except as

otherwise provided, answers are not

required.

(b) Further responsive documents.

Except as otherwise provided, a reply to

an answer, reply to a reply, or any

further responsive document is not

authorized.

(c) Motions for leave to file otherwise

unauthorized documents. (1) The

Department will accept otherwise

unauthorized documents for filing only

if leave has been obtained from the DOT

decisionmaker or, if applicable, the

administrative law judge, on written

motion and for good cause shown.

(2) Such motions shall contain a

concise statement of the matters relied

upon as good cause and shall be

attached to the pleading or other

document for which leave to file is

sought, or the written motion may be

incorporated into the otherwise

unauthorized document for which

admission is sought. In such event, the

document filed shall be titled to

describe both the motion and the

underlying documents.

(3) Where unauthorized responsive

documents are not permitted, all new

matter contained in an answer filed

pursuant to paragraph (a) of this section

shall be deemed controverted.

(d) Time for filing. Except as

otherwise provided, an answer, motion,

or other further responsive document

shall be filed within seven (7) days after

service of any document, order, or

ruling to which the proposed filing is

responsive and must be served on all

parties to the proceeding.

§ 302.7 Service of documents.

(a) Who makes service. (1) The

Department. Formal complaints,

notices, orders, and similar documents

issued by the Department will be served

by the Department upon all parties to

the proceeding.

(2) The parties. Answers, petitions,

motions, briefs, exceptions, notices,

protests, or memoranda, or any other

documents filed by any party or other

person with the Department shall be

served by such party or other person

upon all parties to the proceeding in

which it is filed; including, where

applicable, all persons who have

petitioned for intervention in, or

consolidation of applications with, such

proceeding. Proof of service shall

accompany all documents when they

are filed. The Department may require

additional service of any document(s).

(b) How service may be made. Service

may be made by first class mail, express

mail, priority mail, registered or

certified mail, facsimile transmission,

personal delivery, or by electronic mail.

The Department may prescribe other

means of service by order or notice. The

means of service selected must be done

in such manner so as to have the same

attributes as section 46103 of the

Statute, which provides for service of

notices and processes in a proceeding

by personal service or registered or

certified mail.

(c) Who may be served. Service upon

a party or person may be made upon an

individual, or upon a member of a

partnership or firm to be served, or

upon the president or other officer of

the corporation, company, firm, or

association to be served, or upon the

assignee or legal successor of any of the

foregoing, or upon any attorney of

record for the party, or upon the agent

designated by an air carrier or foreign

air carrier under section 46103 of the

Statute, but it shall be served upon a

person designated by a party to receive

service of documents in a particular

proceeding in accordance with

§ 302.4(a)(2)(iv) once a proceeding has

been commenced.

(d) Where service may be made.

Service shall be made at the principal

place of business of the party to be

served, or at his or her usual residence

if he or she is an individual, or at the

office of the party’s attorney of record,

or at the office or usual residence of the

agent designated by an air carrier or

foreign air carrier under section 46103

of the Statute, or at the post office or

electronic address or facsimile number

stated for a person designated to receive

service pursuant to § 302.4(a)(2)(iv).

(e) Proof of service. Proof of service of

any document shall consist of one of the

following:

(1) A certificate of mailing executed

by the person mailing the document.

(2) A certificate of successful

transmission executed by the person

transmitting the document by facsimile

or electronic mail, listing the facsimile

numbers or electronic mail address to

which the document was sent, and

stating that no indication was received

that any transmission had failed. In the

event of an electronic transmission

failure, any other authorized means of

service may be substituted and the

appropriate proof of service provided.

(f) Date of service. The date of service

by post office or electronic mail is the

date of mailing. Whenever proof of

service by personal delivery or facsimile

transmission is made, the date of such

delivery or facsimile transmission shall

be the date of service.

(g) Freely Associated State

Proceedings. In any proceeding directly

involving air transportation to the

Federated States of Micronesia, the

Marshall Islands, or Palau, the

Department and any party or participant

in the proceeding shall serve all

documents on the President and the

designated authorities of the

government(s) involved. This

requirement shall apply to all

Federal Register / Vol. 65, No. 27 / Wednesday February 9, 2000 / Rules and Regulations 6461

proceedings where service is otherwise

required, and shall be in addition to any

other service required by this chapter.

§ 302.8 Computation of time.

In computing any period of time

prescribed or allowed by this part, by

notice, order or regulation or by any

applicable statute, the day of the act,

event, or default after which the

designated period of time begins to run

is not to be included. The last day of the

period so computed is to be included,

unless it is a Saturday, Sunday, or legal

holiday for the Department, in which

event the period runs until the end of

the next day that is neither a Saturday,

Sunday, nor holiday. When the period

of time prescribed is seven (7) days or

fewer, intermediate Saturdays, Sundays,

and holidays shall be excluded in the

computation, unless otherwise specified

by the DOT decisionmaker or the

administrative law judge assigned to the

proceeding, as the case may be.

§ 302.9 Continuances and extensions of

time.

(a) Whenever a party has the right or

obligation to take action within a period

prescribed by this part, by a notice given

thereunder, or by an order or regulation,

the DOT decisionmaker or the

administrative law judge assigned to the

proceeding, as appropriate, may:

(1) Before the expiration of the

prescribed period, with or without

notice, extend such period, or

(2) Upon motion, permit the act to be

done after the expiration of the specified

period, where good cause for the failure

to act on time is clearly shown.

(b) Except where an administrative

law judge has been assigned to a

proceeding, requests for continuance or

extensions of time, as described in

paragraph (a) of this section, shall be

directed to the DOT decisionmaker.

Requests for continuances and

extensions of time may be directed to

the Chief Administrative Law Judge in

the absence of the administrative law

judge assigned to the proceeding.

§ 302.10 Parties.

(a) In addition to the persons set forth

in § 302.2, in hearing cases, parties shall

include Department staff designated to

participate in the proceeding and any

persons authorized to intervene or

granted permission to participate in

accordance with §§ 302.19 and 302.20.

In any proceeding directly involving air

transportation to the Federated States of

Micronesia, the Marshall Islands or

Palau, these governments or their

designated authorities shall be a party.

(b) Upon motion and for good cause

shown, the Department may order a

substitution of parties, except that in

case of the death of a party, substitution

may be ordered without the filing of a

motion.

(c) An association composed entirely

or in part of air carriers may participate

in any proceedings of the Department to

which the Department’s procedural

regulations apply if the association

represents members that are identified

in any documents filed with the

Department, and that have specifically

authorized the positions taken by the

association in that proceeding. The

specific authorizations may be informal

and evidence of them shall be provided

only upon request of the Department.

Upon motion of any interested person or

upon its own initiative, the Department

may issue an order requiring an

association to withdraw from a case on

the grounds of significant divergence of

interest or position within the

association.

§ 302.11 Motions.

(a) Generally. An application to the

DOT decisionmaker or an

administrative law judge for an order or

ruling not otherwise specifically

provided for in this part shall be by

motion. If an administrative law judge is

assigned to a proceeding and before the

issuance of a recommended or initial

decision or the certification of the

record to the DOT decisionmaker, all

motions shall be addressed to the

administrative law judge. At all other

times, motions shall be addressed to the

DOT decisionmaker. All motions shall

be made at an appropriate time

depending upon the nature thereof and

the relief requested therein. This

paragraph should not be construed as

authorizing motions in the nature of

petitions for reconsideration.

(b) Form and contents. Unless made

during a hearing, motions shall be made

in writing in conformity with §§ 302.3

and 302.4, shall state their grounds and

the relief or order sought, and shall be

accompanied by any affidavits or other

evidence desired to be relied upon.

Motions made during hearings, answers

to them, and rulings on them, may be

made orally on the record unless the

administrative law judge directs

otherwise. Written motions shall be

filed as separate documents, and shall

not be incorporated in any other

documents, except where incorporation

of a motion in another document is

specifically authorized by the

Department, or where a document is

filed that requests alternative forms of

relief and one of these alternative

requests is properly to be made by

motion. In these instances the document

filed shall be appropriately titled and

identified to indicate that it incorporates

a motion; otherwise, the motion will be

disregarded.

(c) Answers to motions. Within seven

(7) days after a motion is served, or such

other period as the DOT decisionmaker

or the administrative law judge may fix,

any party to the proceeding may file an

answer in support of or in opposition to

the motion, accompanied by such

affidavits or other evidence as it desires

to rely upon. Except as otherwise

provided, no reply to an answer, reply

to a reply, or any further responsive

document shall be filed.

(d) Oral arguments; briefs. No oral

argument will be heard on motions

unless the DOT decisionmaker or the

administrative law judge otherwise

directs. Written memoranda or briefs

may be filed with motions or answers to

motions, stating the points and

authorities relied upon in support of the

position taken.

(e) Requests for expedition. Any

interested person may by motion

request expedition of any proceeding or

file an answer in support of or in

opposition to such motions.

(f) Effect of pendency of motions. The

filing or pendency of a motion shall not

automatically alter or extend the time to

take action fixed by this part or by any

order of the Department or of an

administrative law judge (or any

extension granted thereunder).

(g) Disposition of motions. The DOT

decisionmaker shall pass upon all

motions properly submitted to him or

her for decision. The administrative law

judge shall pass upon all motions

properly addressed to him or her, except

that, if the administrative law judge

finds that a prompt decision by the DOT

decisionmaker on a motion is essential

to the proper conduct of the proceeding,

the administrative law judge may refer

such motion to the DOT decisionmaker

for decision.

(h) Appeals to the DOT

decisionmaker from rulings of

administrative law judges. Rulings of

administrative law judges on motions

may not be appealed to the DOT

decisionmaker prior to his or her

consideration of the entire proceeding

except in extraordinary circumstances

and with the consent of the

administrative law judge. An appeal

shall be disallowed unless the

administrative law judge finds, either on

the record or in writing, that the

allowance of such an appeal is

necessary to prevent substantial

detriment to the public interest or

undue prejudice to any party. If an

appeal is allowed, any party may file a

brief with the DOT decisionmaker

within such period as the administrative

6462 Federal Register / Vol. 65, No. 27 / Wednesday February 9, 2000 / Rules and Regulations

law judge directs. No oral argument will

be heard unless the DOT decisionmaker

directs otherwise. The rulings of the

administrative law judge on a motion

may be reviewed by the DOT

decisionmaker in connection with his or

her final action in the proceeding or at

any other appropriate time irrespective

of the filing of an appeal or any action

taken on it.

§ 302.12 Objections to public disclosure of

information.

(a) Generally. Part 7 of the Office of

the Secretary regulations, Public

Availability of Information, governs the

availability of records and documents of

the Department to the public. (49 CFR

7.1 et seq.)

(b) Information contained in written

documents. Any person who objects to

the public disclosure of any information

filed in any proceeding, or pursuant to

the provisions of the Statute, or any

Department rule, regulation, or order,

shall segregate, or request the

segregation of, such information into a

separate submission and shall file it

separately in a sealed envelope, bearing

the caption of the enclosed submission,

and the notation ‘‘Confidential

Treatment Requested Under § 302.12.’’

At the time of filing such submission

(or, when the objection is made by a

person who is not the filer, within five

(5) days after the filing of such

submission), the objecting party shall

file a motion to withhold the

information from public disclosure, in

accordance with the procedure outlined

in paragraph (d) or (f) of this section, as

appropriate. Notwithstanding any other

provision of this section, copies of the

filed submission and of the motion need

not be served upon any other party

unless so ordered by the Department.

(c) Information contained in oral

testimony. Any person who objects to

the public disclosure of any information

sought to be elicited from a witness or

deponent on oral examination shall,

before such information is disclosed,

make his or her objection known. Upon

such objection duly made, the witness

or deponent shall be compelled to

disclose such information only in the

presence of the administrative law judge

or the person before whom the

deposition is being taken, as the case

may be, the official stenographer and

such attorneys for and representative of

each party as the administrative law

judge or the person before whom the

deposition is being taken shall

designate, and after all present have

been sworn to secrecy. The transcript of

testimony containing such information

shall be segregated and filed in a sealed

envelope, bearing the title and docket

number of the proceeding, and the

notation ‘‘Confidential Treatment

Requested Under § 302.12 Testimony

Given by (name of witness or

deponent).’’ Within five (5) days after

such testimony is given, the objecting

person shall file a motion in accordance

with the procedure outlined in

paragraph (d) of this section, to

withhold the information from public

disclosure. Notwithstanding any other

provision of this section, copies of the

segregated portion of the transcript and

of the motion need not be served upon

any other party unless so ordered by the

Department.

(d) Form of motion. Motions to

withhold from public disclosure

information covered by paragraphs (b)

and (c) of this section shall be filed with

the Department in accordance with the

following procedure:

(1) The motion shall include:

(i) An index listing the information or

document sought to be withheld by an

identifying number, and including its

title, description and number of pages,

and, if relevant, the specific location

within a document;

(ii) A statement explaining how and

why the information falls within one or

more of the exemptions from the

Freedom of Information Act (5 U.S.C.

552(b)(1)–(9)); and

(iii) A statement explaining how and

why public disclosure of the

information would adversely affect the

interests of the objecting persons and is

not required in the interest of the

public.

(2) Such motion shall be filed with

the person conducting the proceeding,

or with the person with whom said

application, report, or submission is

required to be filed. Such motion will be

denied when the complete justification

required by this paragraph is not

provided.

(3) During the pendency of such

motion, the ruling official may, by

notice or order, allow limited disclosure

to parties’ representatives, for purposes

of participating in the proceeding, upon

submission by them of affidavits

swearing to protect the confidentiality

of the documents at issue.

(e) Conditions of disclosure. The

order, notice or other action of the

Department containing its ruling upon

each such motion will specify the extent

to which, and the conditions upon

which, the information may be

disclosed to the parties and to the

public, which ruling shall become

effective upon the date stated therein,

unless, within five (5) days after the

date of the entry of the Department’s

order with respect thereto, a petition is

filed by the objecting person requesting

reconsideration by the Department, or a

written statement is filed indicating that

the objecting person in good faith

intends to seek judicial review of the

Department’s order.

(f) Objection by Government

departments or representative thereof.

In the case of objection to the public

disclosure of any information filed by or

elicited from any United States

Government department or agency, or

representative thereof, under paragraph

(b) or (c) of this section, the department

or agency making such objection shall

be exempted from the provisions of

paragraphs (b), (c), and (d) of this

section insofar as said paragraphs

require the filing of a written objection

to such disclosure. However, any

department, agency, or representative

thereof may, if it so desires, file a

memorandum setting forth the reasons

why it is claimed that a public

disclosure of the information should not

be made. If such a memorandum is

submitted, it shall be filed and handled

as is provided by this section in the case

of a motion to withhold information

from public disclosure.

§ 302.13 Consolidation of proceedings.

(a) Initiation of consolidations. The

Department, upon its own initiative or

upon motion, may consolidate for

hearing or for other purposes or may

contemporaneously consider two or

more proceedings that involve

substantially the same parties, or issues

that are the same or closely related, if it

finds that such consolidation or

contemporaneous consideration will be

conducive to the proper dispatch of its

business and to the ends of justice and

will not unduly delay the proceedings.

Although the Department may, in any

particular case, consolidate or

contemporaneously consider two or

more proceedings on its own motion,

the burden of seeking consolidation or

contemporaneous consideration of a

particular application shall rest upon

the applicant and the Department will

not undertake to search its docket for all

applications that might be consolidated

or contemporaneously considered.

(b) Time for filing. Unless the

Department has provided otherwise in a

particular proceeding, a motion to

consolidate or contemporaneously

consider an application with any other

application shall be filed within 21 days

of the original application in the case of

international route awards under

section 41102 of the Statute (see

§ 302.212), or, where a proceeding has

been set for hearing before an

administrative law judge, not later than

the prehearing conference in the

proceeding with which consolidation or

Federal Register / Vol. 65, No. 27 / Wednesday February 9, 2000 / Rules and Regulations 6463

contemporaneous consideration is

requested. If made at such conference,

the motion may be oral. All motions for

consolidation or consideration of issues

that enlarge, expand, or otherwise

change the nature of the proceeding

shall be addressed to the DOT

decisionmaker, unless made orally at

the prehearing conference, in which

event the presiding administrative law

judge shall present such motion to the

DOT decisionmaker for his or her

decision. A motion that is not timely

filed, or that does not relate to an

application pending at such time, shall

be dismissed unless the movant shall

clearly show good cause for failure to

file such motion or application on time.

(c) Answer. If a motion to consolidate

two or more proceedings is filed with

the Department, any party to any of

such proceedings, or any person who

has a petition for intervention pending,

may file an answer to such motion

within such period as the DOT

decisionmaker may permit. The

administrative law judge may require

that answers to such motions be stated

orally at the prehearing conference in

the proceeding with which the

consolidation is proposed.

§ 302.14 Petitions for reconsideration.

(a) Department orders subject to

reconsideration; time for filing. (1)

Unless an order or a rule of the

Department specifically provides

otherwise:

(i) Any interested person may file a

petition for reconsideration of any

interlocutory order issued by the

Department that institutes a proceeding;

and

(ii) Any party to a proceeding may file

a petition for reconsideration, rehearing,

or reargument of final orders issued by

the Department (See § 302.38), or an

interlocutory order that defines the

scope and issues of a proceeding or

suspends a provision of a tariff on file

with the Department.

(2) Unless otherwise provided,

petitions for reconsideration shall be

filed, in the case of a final order, within

twenty (20) days after service thereof,

and, in the case of an interlocutory

order, within ten (10) days after service.

However, neither the filing nor the

granting of such a petition shall operate

as a stay of such final or interlocutory

order unless specifically so ordered by

the DOT decisionmaker. Within ten (10)

days after a petition for reconsideration,

rehearing, or reargument is filed, any

party to the proceeding may file an

answer in support of or in opposition.

Motions for extension of time to file a

petition or answer, and for leave to file

a petition or answer after the time for

the filing has expired, will not be

granted except on a showing of unusual

and exceptional circumstances,

constituting good cause for the movant’s

inability to meet the established

procedural dates.

(b) Contents of petition. A petition for

reconsideration, rehearing, or

reargument shall state, briefly and

specifically, the matters of record

alleged to have been erroneously

decided, the ground relied upon, and

the relief sought. If a decision by the

Secretary or Deputy Secretary is

requested, the petition should describe

in detail the reasons for such request

and specify any important national

transportation policy issues that are

presented. If the petition is based, in

whole or in part, on allegations as to the

consequences that would result from the

final order, the basis of such allegations

shall be set forth. If the petition is based,

in whole or in part, on new matter, such

new matter shall be set forth,

accompanied by a statement to the effect

that petitioner, with due diligence,

could not have known or discovered

such new matter prior to the date the

case was submitted for decision. Unless

otherwise directed by the DOT

decisionmaker upon a showing of

unusual or exceptional circumstances,

petitions for reconsideration, rehearing

or reargument or answers thereto that

exceed twenty-five (25) pages (including

appendices) in length shall not be

accepted for filing by Department of

Transportation Dockets.

(c) Successive petitions. A successive

petition for rehearing, reargument,

reconsideration filed by the same party

or person, and upon substantially the

same ground as a former petition that

has been considered or denied will not

be entertained.

Non-Hearing Proceedings

§ 302.15 Non-hearing procedures.

In cases where oral evidentiary

hearing procedures will not be used,

§ 302.17 through § 302.37, relating to

hearing procedures, shall not be

applicable except to the extent that the

DOT decisionmaker shall determine that

the application of some or all of such

rules in the particular case will be

conducive to the proper dispatch of its

business and to the public interest.

References in these and other sections of

this part to powers or actions by

administrative law judges shall not

apply.

Rulemaking Proceedings

§ 302.16 Petitions for rulemaking.

Any interested person may petition

the Department for the issuance,

amendment, modification, or repeal of

any regulation, subject to the provisions

of part 5, Rulemaking Procedures, of the

Office of the Secretary regulations (49

CFR 5.1 et seq.).

Oral Evidentiary Hearing Proceedings

§ 302.17 Administrative law judges.

(a) Powers and delegation of

authority. (1) An administrative law

judge shall have the following powers,

in addition to any others specified in

this part:

(i) To give notice concerning and to

hold hearings;

(ii) To administer oaths and

affirmations;

(iii) To examine witnesses;

(iv) To issue subpoenas and to take or

cause depositions to be taken;

(v) To rule upon offers of proof and

to receive relevant evidence;

(vi) To regulate the course and

conduct of the hearing;

(vii) To hold conferences before or

during the hearing for the settlement or

simplification of issues;

(viii) To rule on motions and to

dispose of procedural requests or

similar matters;

(ix) To make initial or recommended

decisions as provided in § 302.31;

(x) To take any other action

authorized by this part or by the Statute.

(2) The administrative law judge shall

have the power to take any other action

authorized by part 385 of this chapter or

by the Administrative Procedure Act.

(3) The administrative law judge

assigned to a particular case is delegated

the DOT decisionmaker’s function of

making the agency decision on the

substantive and procedural issues

remaining for disposition at the close of

the hearing in such case, except that this

delegation does not apply in cases

where the record is certified to the DOT

decisionmaker, with or without an

initial or recommended decision by the

administrative law judge, or in cases

requiring Presidential approval under

section 41307 of the Statute. This

delegation does not apply to the review

of rulings by the administrative law

judge on interlocutory matters that have

been appealed to the DOT

decisionmaker in accordance with the

requirements of § 302.11.

(4) The administrative law judge’s

authority in each case will terminate

either upon the certification of the

record in the proceeding to the DOT

decisionmaker, or upon the issuance of

an initial or recommended decision, or

when he or she shall have withdrawn

from the case upon considering himself

or herself disqualified.

(b) Disqualification. An

administrative law judge shall withdraw

6464 Federal Register / Vol. 65, No. 27 / Wednesday February 9, 2000 / Rules and Regulations

from the case if at any time he or she

deems himself or herself disqualified. If,

prior to the initial or recommended

decision in the case, there is filed with

the administrative law judge, in good

faith, an affidavit of personal bias or

disqualification with substantiating

facts and the administrative law judge

does not withdraw, the DOT

decisionmaker shall determine the

matter, if properly presented by

exception or brief, as a part of the record

and decision in the case. The DOT

decisionmaker shall not otherwise

consider any claim of bias or

disqualification. The DOT

decisionmaker, in his or her discretion,

may order a hearing on a charge of bias

or disqualification.

§ 302.18 DOT decisionmaker.

(a) Assistant Secretary for Aviation

and International Affairs. Except as

provided in paragraphs (b) and (c) of

this section, the Assistant Secretary for

Aviation and International Affairs is the

DOT decisionmaker. The Assistant

Secretary shall have all of the powers

set forth in § 302.17(a)(1) and those

additional powers delegated by the

Secretary. The Assistant Secretary may

delegate this authority in appropriate

non-hearing cases to subordinate

officials.

(b) Oral hearing cases assigned to the

senior career official. Carrier selection

proceedings for international route

authority that are set for oral hearing

and such other oral hearing cases as the

Secretary deems appropriate will be

assigned to the senior career official in

the Office of the Assistant Secretary for

Aviation and International Affairs, who

will serve as the DOT decisionmaker. In

all such cases, the administrative law

judge shall render a recommended

decision to the senior career official,

who shall have all of the powers set

forth in § 302.17(a)(1) and those

additional powers delegated by the

Secretary.

(1) Decisions of the senior career

official are subject to review by, and at

the discretion of, the Assistant Secretary

for Aviation and International Affairs.

Petitions for discretionary review of

decisions of the senior career official

will not be entertained. A notice of

review by the Assistant Secretary will

establish the procedures for review.

Unless a notice of review is issued, the

decision of the senior career official will

be issued as a final decision of the

Department and will be served fourteen

(14) days after it is adopted by the

senior career official.

(2) Final decisions of the senior career

official may be reviewed upon a petition

for reconsideration filed pursuant to

§ 302.14. Such a petition shall state

clearly the basis for requesting

reconsideration and shall specify any

questions of national transportation

policy that may be involved. The

Assistant Secretary will either grant or

deny the petition.

(3) Upon review or reconsideration,

the Assistant Secretary may either

affirm the decision or remand the

decision to the senior career official for

further action consistent with such

order of remand.

(4) Subject to the provisions of

paragraphs (b)(1) through (3) of this

section, final decisions of the senior

career official will be transmitted to the

President of the United States when

required under 49 U.S.C. 41307.

(c) Secretary and Deputy Secretary.

The Secretary or Deputy Secretary may

exercise any authority of the Assistant

Secretary whenever he or she believes a

decision involves important questions

of national transportation policy.

§ 302.19 Participation by persons not

parties.

Any person, including any State,

subdivision thereof, State aviation

commission, or other public body, may

appear at any hearing, other than in an

enforcement proceeding, and present

any evidence that is relevant to the

issues. With the consent of the

administrative law judge or the DOT

decisionmaker, such person may also

cross-examine witnesses directly. Such

persons may also present to the

administrative law judge a written

statement on the issues involved in the

proceeding. Such written statements

shall be filed and served on all parties

prior to the close of the hearing.

§ 302.20 Formal intervention.

(a) Who may intervene. Any person

who has a statutory right to be made a

party to an oral evidentiary hearing

proceeding shall be permitted to

intervene. Any person whose

intervention will be conducive to the

public interest and will not unduly

delay the conduct of such proceeding

may be permitted to intervene.

(b) Considerations relevant to

determination of petition to intervene.

In passing upon a petition to intervene,

the following factors, among other

things, will be considered and will be

liberally interpreted to facilitate the

effective participation by members of

the public in Department proceedings:

(1) The nature of the petitioner’s right

under the statute to be made a party to

the proceeding;

(2) The nature and extent of the

property, financial or other interest of

the petitioner;

(3) The effect of the order that may be

entered in the proceeding on

petitioner’s interest;

(4) The availability of other means

whereby the petitioner’s interest may be

protected;

(5) The extent to which petitioner’s

interest will be represented by existing

parties;

(6) The extent to which petitioner’s

participation may reasonably be

expected to assist in the development of

a sound record; and

(7) The extent to which participation

of the petitioner will broaden the issues

or delay the proceeding.

(c) Petition to intervene. (1) Contents.

Any person desiring to intervene in a

proceeding shall file a petition in

conformity with this part setting forth

the facts and reasons why he or she

thinks he or she should be permitted to

intervene. The petition should make

specific reference to the factors set forth

in paragraph (b) of this section.

(2) Time for filing. Unless otherwise

ordered by the Department:

(i) A petition to intervene shall be

filed with the Department prior to the

first prehearing conference, or, in the

event that no such conference is to be

held, not later than fifteen (15) days

prior to the hearing.

(ii) A petition to intervene filed by a

city, other public body, or a chamber of

commerce shall be filed with the

Department not later than the last day

prior to the beginning of the hearing.

(iii) A petition to intervene that is not

timely filed shall be dismissed unless

the petitioner shall clearly show good

cause for his or her failure to file such

petition on time.

(3) Answer. Any party to a proceeding

may file an answer to a petition to

intervene, making specific reference to

the factors set forth in paragraph (b) of

this section, within seven (7) days after

the petition is filed.

(4) Disposition. The decision granting,

denying or otherwise ruling on any

petition to intervene may be issued

without receiving testimony or oral

argument either from the petitioner or

other parties to the proceeding.

(d) Effect of granting intervention. A

person permitted to intervene in a

proceeding thereby becomes a party to

the proceeding. However, interventions

provided for in this section are for

administrative purposes only, and no

decision granting leave to intervene

shall be deemed to constitute an

expression by the Department that the

intervening party has such a substantial

interest in the order that is to be entered

in the proceeding as will entitle it to

judicial review of such order.

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§ 302.21 Appearances.

(a) Any party to a proceeding may

appear and be heard in person or by a

designated representative.

(b) No register of persons who may

practice before the Department is

maintained and no application for

admission to practice is required.

(c) Any person practicing or desiring

to practice before the Department may,

upon hearing and good cause shown, be

suspended or barred from practicing.

§ 302.22 Prehearing conference.

(a) Purpose and scope of conference.

At the discretion of the administrative

law judge, a prehearing conference may

be called prior to any hearing. Written

notice of the prehearing conference

shall be sent by the administrative law

judge to all parties to a proceeding and

to other persons who appear to have an

interest in such proceeding. The

purpose of such a conference is to

define the issues and the scope of the

proceeding, to secure statements of the

positions of the parties and amendments

to the pleadings, to schedule the

exchange of exhibits before the date set

for hearing, and to arrive at such

agreements as will aid in the conduct

and disposition of the proceeding. For

example, consideration will be given to:

(1) Matters that the DOT

decisionmaker can consider without the

necessity of proof;

(2) Admissions of fact and of the

genuineness of documents;

(3) Requests for documents;

(4) Admissibility of evidence;

(5) Limitation of the number of

witnesses;

(6) Reducing of oral testimony to

exhibit form;

(7) Procedure at the hearing; and

(8) Use of electronic media as a basis

for exchange of briefs, hearing

transcripts and exhibits, etc., in addition

to the official record copy.

(b) Actions during prehearing

conference. The administrative law

judge may require a further conference,

or responsive pleadings, or both. If a

party refuses to produce documents

requested by another party at the

conference, the administrative law judge

may compel the production of such

documents prior to a hearing by

subpoena issued in accordance with the

provisions of § 302.25 as though at a

hearing. Applications for the production

prior to hearing of documents in the

Department’s possession shall be

addressed to the administrative law

judge, in accordance with the provisions

of § 302.25(g), in the same manner as

provided therein for production of

documents at a hearing. The

administrative law judge may also, on

his or her own initiative or on motion

of any party, direct any party to the

proceeding (air carrier or non-air carrier)

to prepare and submit exhibits setting

forth studies, forecasts, or estimates on

matters relevant to the issues in the

proceeding.

(c) Report of prehearing conference.

The administrative law judge shall issue

a report of prehearing conference,

defining the issues, giving an account of

the results of the conference, specifying

a schedule for the exchange of exhibits

and rebuttal exhibits, the date of

hearing, and specifying a time for the

filing of objections to such report. The

report shall be served upon all parties

to the proceeding and any person who

appeared at the conference. Objections

to the report may be filed by any

interested person within the time

specified therein. The administrative

law judge may revise his or her report

in the light of the objections presented.

The revised report, if any, shall be

served upon the same persons as was

the original report. Exceptions may be

taken on the basis of any timely written

objection that has not been met by a

revision of the report if the exceptions

are filed within the time specified in the

revised report. Such report shall

constitute the official account of the

conference and shall control the

subsequent course of the proceeding,

but it may be reconsidered and modified

at any time to protect the public interest

or to prevent injustice.

§ 302.23 Hearing.

The administrative law judge to

whom the case is assigned or the DOT

decisionmaker shall give the parties

reasonable notice of a hearing or of the

change in the date and place of a

hearing and the nature of such hearing.

§ 302.24 Evidence.

(a) Presenting evidence. Presenting

evidence at the hearing shall be limited

to material evidence relevant to the

issues as drawn by the pleadings or as

defined in the report of prehearing

conference, subject to such later

modifications of the issues as may be

necessary to protect the public interest

or to prevent injustice, and shall not be

unduly repetitious. Evidence shall be

presented in such form by all parties as

the administrative law judge may direct.

(b) Objections to evidence. Objections

to the admission or exclusion of

evidence shall be in short form, stating

the grounds of objections relied upon,

and the transcript shall not include

argument or debate except as ordered by

the administrative law judge. Rulings on

such objections shall be a part of the

transcript.

(c) Exhibits. When exhibits are offered

in evidence, one copy must be furnished

to each of the parties at the hearing, and

two copies to the administrative law

judge, unless the parties previously

have been furnished with copies or the

administrative law judge directs

otherwise. If the administrative law

judge has not fixed a time for the

exchange of exhibits, the parties shall

exchange copies of exhibits at the

earliest practicable time, preferably

before the hearing or, at the latest, at the

commencement of the hearing. Copies

of exhibits may, at the discretion of the

administrative law judge or the DOT

decisionmaker, be furnished by use of

electronic media in lieu of or in

addition to a paper record copy.

(d) Substitution of copies for original

exhibits. In his or her discretion, the

administrative law judge may permit a

party to withdraw original documents

offered in evidence and substitute true

copies in lieu thereof.

(e) Designation of parts of documents.

When relevant and material matter

offered in evidence by any party is

embraced in a book, paper, or document

containing other matter not material or

relevant, the party offering the same

shall plainly designate the matter so

offered. The immaterial and irrelevant

parts shall be excluded and shall be

segregated insofar as practicable. If the

volume of immaterial or irrelevant

matter would unduly encumber the

record, such submission will not be

received in evidence, but may be

marked for identification, and, if

properly authenticated, the relevant or

material matter may be read into the

record, or, if the administrative law

judge so directs, a true copy of such

matter, in proper form, shall be received

as an exhibit, and like copies delivered

by the party offering the same to

opposing parties or their attorneys

appearing at the hearing, who shall be

afforded an opportunity to examine the

submission, and to offer in evidence in

like manner other portions of the

exhibit.

(f) Records in other proceedings. In

case any portion of the record in any

other proceeding or civil or criminal

action is offered in evidence, a true copy

of such portion shall be presented for

the record in the form of an exhibit

unless:

(1) The portion is specified with

particularity in such manner as to be

readily identified;

(2) The party offering the same agrees

unconditionally to supply such copies

later, or when required by the DOT

decisionmaker;

(3) The parties represented at the

hearing stipulate upon the record that

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such portion may be incorporated by

reference, and that any portion offered

by any other party may be incorporated

by like reference upon compliance with

paragraphs (f)(1) and (2) of this section;

and

(4) The administrative law judge

directs such incorporation or waives the

requirement in paragraph (f)(3) of this

section with the consent of the parties.

(g) Official notice of facts contained in

certain documents. (1) Without limiting,

in any manner or to any extent, the

discretionary powers of the DOT

decisionmaker and the administrative

law judge to notice other matters or

documents properly the subject of

official notice, facts contained in any

document within the categories

enumerated in this subdivision are

officially noticed in all formal economic

proceedings except those subject to

subpart D of this part. Each such

category shall include any document

antedating the final Department

decision in the proceeding where such

notice is taken. The matters officially

noticed under the provisions of this

paragraph are:

(i) Air carrier certificates or

applications therefor, together with any

requests for amendment, and pleadings

responding to applications when

properly filed.

(ii) All Form 41 reports required to be

filed by air carriers with the

Department.

(iii) Reports of Traffic and Financial

Data of all U.S. Air Carriers issued by

the Civil Aeronautics Board (CAB) or

the Department.

(iv) Airline Traffic Surveys and

Passenger Origin-Destination Surveys,

Domestic and International, compiled

by the CAB or the Department and

published and/or made available either

to the public or to parties in

proceedings.

(v) Compilations of data relating to

competition in the airline industry and

made available to the public by the CAB

or the Department, such as the 1990

Airline Competition Study.

(vi) Passenger, mail, express, and

freight data submitted to the CAB or the

Department as part of ER–586 Service

Segment Data by U.S. carriers, or similar

data submitted to the Department by

U.S. air carriers (T–100) or by foreign air

carriers (T–100F) that is not

confidential.

(vii) All tariffs, including the

electronic versions, and amendments

thereof, of all air carriers, on file with

the Department.

(viii) Service Mail Pay and Subsidy

for U.S. Certificated Air Carriers

published by the CAB and any

supplemental data and subsequent

issues published by the CAB or the

Department.

(ix) Airport Activity Statistics of

Certificated Air Carriers compiled and

published by the Federal Aviation

Administration (FAA) or the

Department.

(x) Air Traffic Activity Data issued by

the FAA.

(xi) National Plan of Integrated

Airport Systems (NPIAS) issued by the

FAA.

(xii) Airport Facilities Directory, Form

5010, issued by the FAA.

(xiii) The Airman’s Information

Manual issued by the FAA.

(xiv) ICAO Statistical Summary,

Preliminary Issues and Nos. 1 through

14, and Digest of Statistics, Nos. 15

through 71, prepared by ICAO,

Montreal, Canada, with all changes and

additions.

(xv) Monthly, quarterly and annual

reports of the Immigration and

Naturalization Service, U.S. Department

of Justice.

(xvi) All forms and reports required

by the U.S. Postal Service to be filed by

air carriers authorized to transport mail.

(xvii) All orders of the Postmaster

General designating schedules for the

transportation of mail.

(xviii) Publications of the Bureau of

the Census of the U.S. Department of

Commerce (DOC) relating, but not

necessarily limited, to population,

manufacturing, business, statistics, and

any yearbooks, abstracts, or similar

publications published by DOC.

(xix) ABC World Airways Guide and

all Official Airline Guides, including the

North American, Worldwide, All-Cargo

and quick reference editions, including

electronic versions.

(xx) Official Guide of the Railways

and Russell’s Official National Motor

Coach Guide.

(xxi) The Rand McNally Commercial

Atlas and Marketing Guide, and the

Rand McNally Road Atlas, United

States, Canada, and Mexico.

(xxii) Survey of Buying Power

published by Sales Management

Magazine.

(2) Any fact contained in a document

belonging to a category enumerated in

paragraph (g)(1) of this section shall be

deemed to have been physically

incorporated into and made part of the

record in such proceedings. However,

such taking of official notice shall be

subject to the rights granted to any party

or intervener to the proceeding under

section 7(d) of the Administrative

Procedure Act (5 U.S.C. 557(d)).

(3) The decisions of the Department

and its administrative law judges may

officially notice any appropriate matter

without regard to whether or not such

items are contained in a document

belonging to the categories enumerated

in paragraph (g)(1) of this section.

However, where the decision rests on

official notice of a material fact or facts,

it will set forth such items with

sufficient particularity to advise

interested persons of the matters that

have been noticed.

(h) Receipt of documents after

hearing. No document or other writings

shall be accepted for the record after the

close of the hearing except in

accordance with an agreement of the

parties and the consent of the

administrative law judge or the DOT

decisionmaker.

(i) Exceptions. Formal exceptions to

the rulings of the administrative law

judge made during the course of the

hearing are unnecessary. For all

purposes for which an exception

otherwise would be taken, it is

sufficient that a party, at the time the

ruling of the administrative law judge is

made or sought, makes known the

action he or she desires the

administrative law judge to take or his

or her objection to an action taken, and

his or her grounds therefor.

(j) Offers of proof. Any offer of proof

made in connection with an objection

taken to any ruling of the administrative

law judge rejecting or excluding

proffered oral testimony shall consist of

a statement of the substance of the

evidence that counsel contends would

be adduced by such testimony, and if

the excluded evidence consists of

evidence in documentary or written

form or of reference to documents or

records, a copy of such evidence shall

be marked for identification and shall

constitute the offer of proof.

§ 302.25 Subpoenas.

(a) An application for a subpoena

requiring the attendance of a witness at

a hearing or the production of

documentary evidence may be made

without notice by any party to the

administrative law judge or, in the event

that an administrative law judge has not

been assigned to a proceeding or is not

available, to the DOT decisionmaker or

the Chief Administrative Law Judge, for

action.

(b) An application for a subpoena

shall be in duplicate except that if it is

made during the course of a hearing, it

may be made orally on the record with

the consent of the administrative law

judge.

(c) All such applications, whether

written or oral, shall contain a statement

or showing of general relevance and

reasonable scope of the evidence sought,

and shall be accompanied by two copies

of a draft of the subpoena sought that,

Federal Register / Vol. 65, No. 27 / Wednesday February 9, 2000 / Rules and Regulations 6467

in the case of evidence, shall describe

the documentary or tangible evidence to

be subpoenaed with as much

particularity as is feasible, or, in the

case of a witness, the name of the

witness and a general description of the

matters concerning which the witness

will be asked to testify.

(d) The administrative law judge or

DOT decisionmaker considering any

application for a subpoena shall issue

the subpoena requested if the

application complies with this section.

No attempt shall be made to determine

the admissibility of evidence in passing

upon an application for a subpoena, and

no detailed or burdensome showing

shall be required as a condition to the

issuance of a subpoena.

(e) Where it appears during the course

of a proceeding that the testimony of a

witness or documentary evidence is

relevant to the issues in a proceeding,

the administrative law judge, Chief

Administrative Law Judge or DOT

decisionmaker may issue on his or her

own initiative a subpoena requiring

such witness to attend and testify or

requiring the production of such

documentary evidence.

(f) Subpoenas issued under this

section shall be served upon the person

to whom directed in accordance with

§ 302.7(b). Any person upon whom a

subpoena is served may within seven (7)

days after service or at any time prior to

the return date thereof, whichever is

earlier, file a motion to quash or modify

the subpoena with the administrative

law judge or, in the event an

administrative law judge has not been

assigned to a proceeding or is not

available, to the DOT decisionmaker or

the Chief Administrative Law Judge for

action. If the person to whom the

motion to modify or quash the subpoena

has been addressed or directed, has not

acted upon such a motion by the return

date, such date shall be stayed pending

his or her final action thereon. The DOT

decisionmaker may at any time review,

upon his or her own initiative, the

ruling of an administrative law judge or

the Chief Administrative Law Judge

denying a motion to quash a subpoena.

In such cases, the DOT decisionmaker

may order that the return date of a

subpoena be stayed pending action

thereon.

(g) The provisions of this section are

not applicable to the attendance of DOT

employees or the production of

documentary evidence in the custody

thereof at a hearing. The attendance of

DOT employees and the production of

documentary evidence in their custody

are governed by 49 CFR Parts 9 and 7,

respectively.

§ 302.26 Depositions.

(a) For good cause shown, the DOT

decisionmaker or administrative law

judge assigned to a proceeding may

order that the testimony of a witness be

taken by deposition and that the witness

produce documentary evidence in

connection with such testimony.

Ordinarily an order to take the

deposition of a witness will be entered

only if:

(1) The person whose deposition is to

be taken would be unavailable at the

hearing,

(2) The deposition is deemed

necessary to perpetuate the testimony of

the witness, or

(3) The taking of the deposition is

necessary to prevent undue and

excessive expense to a party and will

not result in an undue burden to other

parties or in undue delay.

(b) Any party desiring to take the

deposition of a witness shall make

application therefor in duplicate to the

administrative law judge or, in the event

that an administrative law judge has not

been assigned to a proceeding or is not

available, to the DOT decisionmaker or

Chief Administrative Law Judge, setting

forth the reasons why such deposition

should be taken, the name and

residence of the witness, the time and

place proposed for the taking of the

deposition, and a general description of

the matters concerning which the

witness will be asked to testify. If good

cause be shown, the administrative law

judge, the DOT decisionmaker, or the

Chief Administrative Law Judge, as the

case may be, may, in his or her

discretion, issue an order authorizing

such deposition and specifying the

witness whose deposition is to be taken,

the general scope of the testimony to be

taken, the time when, the place where,

the designated officer (authorized to

take oaths) before whom the witness is

to testify, and the number of copies of

the deposition to be supplied. Such

order shall be served upon all parties by

the person proposing to take the

deposition a reasonable period in

advance of the time fixed for taking

testimony.

(c) Witnesses whose testimony is

taken by deposition shall be sworn or

shall affirm before any questions are put

to them. Each question shall be recorded

and the answers shall be taken down in

the words of the witness.

(d) Objections to questions or

evidence shall be in short form, stating

the grounds of objection relied upon,

but no transcript filed by the designated

officer shall include argument or debate.

Objections to questions or evidence

shall be noted by the designated officer

upon the deposition, but he or she shall

not have power to decide on the

competency or materiality or relevance

of evidence, and he or she shall record

the evidence subject to objection.

Objections to questions or evidence not

made before the designated officer shall

not be deemed waived unless the

ground of the objection is one that might

have been obviated or removed if

presented at that time.

(e) The testimony shall be reduced to

writing by the designated officer, or

under his or her direction, after which

the deposition shall be signed by the

witness unless the parties by stipulation

waive the signing or the witness is ill or

cannot be found or refuses to sign, and

certified in usual form by the designated

officer. If the deposition is not signed by

the witness, the designated officer shall

state on the record this fact and the

reason therefor. The original deposition

and exhibits shall be forwarded to

Department of Transportation Dockets

and shall be filed in the proceedings.

(f) Depositions may also be taken and

submitted on written interrogatories in

substantially the same manner as

depositions taken by oral examination.

Ordinarily such procedure will be

authorized only if necessary to achieve

the purposes of an oral deposition and

to serve the balance of convenience of

the parties. The interrogatories shall be

filed in quadruplicate with two copies

of the application and a copy of each

shall be served on each party. Within

seven (7) days after service any party

may file with the person to whom

application was made two copies of his

or her objections, if any, to such

interrogatories and may file such crossinterrogatories as he or she desires to

submit. Cross-interrogatories shall be

filed in quadruplicate, and a copy

thereof together with a copy of any

objections to interrogatories, shall be

served on each party, who shall have

five (5) days thereafter to file and serve

his or her objections, if any, to such

cross-interrogatories. Objections to

interrogatories or cross-interrogatories,

shall be served on the DOT

decisionmaker or the administrative law

judge considering the application.

Objections to interrogatories shall be

made before the order for taking the

deposition issues and if not so made

shall be deemed waived. When a

deposition is taken upon written

interrogatories, and crossinterrogatories, no party shall be present

or represented, and no person other

than the witness, a reporter, and the

designated officer shall be present at the

examination of the witness, which fact

shall be certified by the designated

officer, who shall ask the interrogatories

and cross-interrogatories to the witness

6468 Federal Register / Vol. 65, No. 27 / Wednesday February 9, 2000 / Rules and Regulations

in their order and reduce the testimony

to writing in the witness’s own words.

The provisions of paragraph (e) of this

section shall be applicable to

depositions taken in accordance with

this paragraph.

(g) All depositions shall conform to

the specifications of § 302.3 except that

the filing of three copies thereof shall be

sufficient. Any fees of a witness, the

reporter, or the officer designated to take

the deposition shall be paid by the

person at whose instance the deposition

is taken.

(h) The fact that a deposition is taken

and filed in a proceeding as provided in

this section does not constitute a

determination that it is admissible in

evidence or that it may be used in the

proceeding. Only such part or the whole

of a deposition as is received in

evidence shall constitute a part of the

record in such proceeding upon which

a decision may be based.

§ 302.27 Rights of witnesses; attendance

fees and mileage.

(a) Any person appearing as a witness

in any proceeding governed by this part,

whether in response to a subpoena or by

request or permission of the

Department, may be accompanied,

represented, and advised by counsel

and may be examined by that counsel

after other questioning.

(b) Any person who submits data or

evidence in a proceeding governed by

this part, whether in response to a

subpoena or by request or permission of

the Department, may retain, or, on

payment of lawfully prescribed costs,

procure, a copy of any document so

submitted or a copy of any transcript

made of such testimony.

(c) No person whose attendance at a

hearing or whose deposition is to be

taken shall be obliged to respond to a

subpoena unless upon a service of the

subpoena he or she is tendered

attendance fees and mileage by the party

at whose instance he or she is called in

accordance with the requirements of

paragraphs (c)(1) and (2) of this section;

Provided, That a witness summoned at

the instance of the Department or one of

its employees, or a salaried employee of

the United States summoned to testify

as to matters related to his or her public

employment, need not be tendered such

fees or mileage at that time.

(1) Witnesses who are not salaried

employees of the United States, or such

employees summoned to testify on

matters not related to their public

employment, shall be paid the same per

diem, subsistence, and mileage fees paid

to witnesses for like service in the

courts of the United States that are in

effect at the time of travel; Provided,

That no employee, officer, or attorney of

an air carrier who travels under the free

or reduced rate provisions of section

41511 of the Statute shall be entitled to

any fees or mileage; And provided

further, That such fees and mileage shall

not be applicable for witnesses

summoned to testify in Alaska, and that,

in Alaska, where permitted by section

41511 of the Statute, the witness may,

at his or her option, accept a pass for

travel by air. Such witnesses shall be

furnished appropriate forms and

instructions for the submission of

claims for attendance fees, subsistence,

and mileage from the Government

before the close of the proceedings that

they are required to attend. Only

persons summoned by subpoena shall

be entitled to claim attendance fees,

subsistence, or mileage from the

Government.

(2) Witnesses who are salaried

employees of the United States and who

are summoned to testify on matters

relating to their public employment,

irrespective of at whose instance they

are summoned, shall be paid in

accordance with applicable Government

regulations.

§ 302.28 Transcripts of hearings.

(a) Hearings shall be recorded and

transcribed under supervision of the

administrative law judge, by a reporting

firm under contract with the

Department. Copies of the transcript

that may, at the discretion of the

administrative law judge, be furnished

by use of electronic media in addition

to the official copy, shall be supplied to

the parties to the proceeding by said

reporting firm, at the contract price for

copies.

(b) The administrative law judge shall

determine whether ‘‘ordinary

transcript’’ or ‘‘daily transcript’’ (as

those terms are defined in the contract)

will be necessary and required for the

proper conduct of the proceeding and

the Department will pay the reporting

firm the cost of reporting its proceedings

at the contract price for such type of

transcript. If the administrative law

judge has determined that ordinary

transcript is adequate, and has notified

the parties of such determination (in the

notice of hearings, or otherwise), then

any party may request reconsideration

of such determination and that daily

transcript be required. In determining

what is necessary and required for the

proper conduct of the proceeding, the

administrative law judge shall consider,

among other things:

(1) The nature of the proceeding itself;

(2) The DOT decisionmaker’s needs as

well as the reasonable needs of the

parties;

(3) The cost to the Department; and

(4) The requirements of a fair hearing.

(c) If the administrative law judge has

determined that ordinary transcript is

adequate, or, upon reconsideration, has

adhered to such determination, then any

party may request the reporting firm to

provide daily transcript. In that case,

pursuant to its contract with the

Department, the reporting firm will be

obligated to furnish to the Department

daily transcript upon the agreement by

the requesting party to pay to the

reporting firm an amount equal to the

difference between the contract prices

for ordinary transcript and daily

transcript, provided that the requesting

party makes such agreement with the

reporting firm at least twenty-four (24)

hours in advance of the date for which

such transcript is requested.

(d) Any party may obtain from the

Office of the Assistant Secretary for

Administration, the name and address

of the private reporting company with

which the Department currently has a

contract for transcripts and copies, as

well as the contract prices then in effect

for such services.

(e) Copies of transcripts ordered by

parties other than the Department shall

be prepared for delivery to the

requesting person at the reporting firm’s

place of business, within the stated time

for the type of transcript ordered. The

requesting party and the reporting firm

may agree upon some other form or

means of delivery (mail, messenger,

electronic media, etc.) and the reporting

firm may charge for such special

service, provided that such charge shall

not exceed the reasonable cost of such

service.

(f) Changes in the official transcript

may be made only when they involve

errors affecting substance. A motion to

correct a transcript shall be filed with

Department of Transportation Dockets,

within ten (10) days after receipt of the

completed transcript by the Department.

If no objections to the motion are filed

within ten (10) days thereafter, the

transcript may, upon the approval of the

administrative law judge, be changed to

reflect such corrections. If objections are

received, the motion and objections

shall be submitted to the official

reporter by the administrative law judge

together with a request for a comparison

of the transcript with the reporter’s

record of the hearing. After receipt of

the report of the official reporter an

order shall be entered by the

administrative law judge settling the

record and ruling on the motion.

Federal Register / Vol. 65, No. 27 / Wednesday February 9, 2000 / Rules and Regulations 6469

§ 302.29 Argument before the

administrative law judge.

(a) The administrative law judge shall

give the parties to the proceeding

adequate opportunity during the course

of the hearing for the presentation of

arguments in support of or in opposition

to motions, and objections and

exceptions to rulings of the

administrative law judge.

(b) When, in the opinion of the

administrative law judge, the volume of

the evidence or the importance or

complexity of the issues involved

warrants, he or she may, either on his

or her own motion or at the request of

a party, permit the presentation of oral

argument, and may impose such time

limits on the argument as he or she may

determine appropriate. Such argument

shall be transcribed and bound with the

transcript of testimony and will be

available to the Department

decisionmaker for consideration in

deciding the case.

§ 302.30 Briefs to the administrative law

judge.

Within such limited time after the

close of the reception of evidence fixed

by the administrative law judge, any

party may, upon request and under such

conditions as the administrative law

judge may prescribe, file for his or her

consideration briefs which may include

proposed findings of fact and

conclusions of law that shall contain

exact references to the record and

authorities relied upon.

§ 302.31 Initial and recommended

decisions; certification of the record.

(a) Action by administrative law judge

after hearing. Except where the DOT

decisionmaker directs otherwise, after

the taking of evidence and the receipt of

briefs which may include proposed

findings of fact and conclusions of law,

if any, the administrative law judge

shall take the following action:

(1) Initial decision. If the proceeding

does not involve foreign air

transportation, the administrative law

judge shall render an ‘‘initial decision.’’

Such decision shall encompass the

administrative law judge’s decision on

the merits of the proceeding and on all

ancillary procedural issues remaining

for disposition at the close of the

hearing.

(2) Recommended decision. In cases

where the action of the Department

involves foreign air transportation and

is subject to review by the President of

the United States pursuant to section

41307 of the Statute, the administrative

law judge shall render a ‘‘recommended

decision.’’ Such decision shall

encompass the administrative law

judge’s decision on the merits of the

proceeding and on all ancillary

procedural issues remaining for

disposition at the close of the hearing.

(b) Certification to the DOT

decisionmaker for decision. At any time

prior to the close of the hearing, the

DOT decisionmaker may direct the

administrative law judge to certify any

question or the entire record in the

proceeding to the DOT decisionmaker

for decision. In cases where the record

is thus certified, the administrative law

judge shall not render a decision but

shall make a recommendation to the

DOT decisionmaker as required by

section 8(a) of the Administrative

Procedure Act (5 U.S.C. 558(a)) unless

advised by the DOT decisionmaker that

he or she intends to issue a tentative

decision.

(c) Every initial or recommended

decision issued shall state the names of

the persons who are to be served with

copies of it, the time within which

exceptions to, or petitions for review of,

such decision may be filed, and the time

within which briefs in support of the

exceptions may be filed. In addition,

every such decision shall recite that it

is made under delegated authority, and

contain notice of the provisions of

paragraph (d) of this section. In the

event the administrative law judge

certifies the record to the DOT

decisionmaker without an initial or

recommended decision, he or she shall

notify the parties of the time within

which to file with the DOT

decisionmaker briefs which may

include proposed findings of fact and

conclusions of law.

(d) Unless a petition for discretionary

review is filed pursuant to § 302.32,

exceptions are filed pursuant to

§ 302.217, or the DOT decisionmaker

issues an order to review upon his or

her own initiative, the initial decision

shall become effective as the final order

of the Department thirty (30) days after

service thereof; in the case of a

recommended decision, that decision

shall be transmitted to the President of

the United States under 49 U.S.C.

41307. If a petition for discretionary

review or exceptions are timely filed or

action to review is taken by the DOT

decisionmaker upon his or her own

initiative, the effectiveness of the initial

decision or the transmission of the

recommended decision is stayed until

the further order of the DOT

decisionmaker.

§ 302.32 Petitions for discretionary review

of initial or recommended decisions; review

proceedings.

(a) Petitions for discretionary review.

(1) Review by the DOT decisionmaker

pursuant to this section is not a matter

of right but is at the sole discretion of

the DOT decisionmaker. Any party may

file and serve a petition for

discretionary review by the DOT

decisionmaker of an initial decision or

recommended decision within twentyone (21) days after service thereof,

unless the DOT decisionmaker sets a

different period for filing.

(2) Petitions for discretionary review

shall be filed only upon one or more of

the following grounds:

(i) A finding of a material fact is

erroneous;

(ii) A necessary legal conclusion is

without governing precedent or is a

departure from or contrary to law, the

Department’s rules, or precedent;

(iii) A substantial and important

question of law, policy or discretion is

involved; or

(iv) A prejudicial procedural error has

occurred.

(3) Each issue shall be separately

numbered and plainly and concisely

stated. Petitioners shall not restate the

same point in repetitive discussions of

an issue. Each issue shall be supported

by detailed citations of the record when

objections are based on the record, and

by statutes, regulations or principal

authorities relied upon. Any matters of

fact or law not argued before the

administrative law judge, but that the

petitioner proposes to argue on brief to

the DOT decisionmaker, shall be stated.

(4) Petitions for discretionary review

shall be self-contained and shall not

incorporate by reference any part of

another document. Except by

permission of the DOT decisionmaker,

petitions shall not exceed twenty (20)

pages including appendices and other

papers physically attached to the

petition.

(5) Requests for oral argument on

petitions for discretionary review will

not be entertained by the DOT

decisionmaker.

(b) Answers. Within fifteen (15) days

after service of a petition for

discretionary review, any party may file

and serve an answer of not more than

fifteen (15) pages in support of or in

opposition to the petition. If any party

desires to answer more than one

petition for discretionary review in the

same proceeding, he or she shall do so

in a single document of not more than

twenty (20) pages.

(c) Orders declining review. The DOT

decisionmaker’s order declining to

exercise the discretionary right of

review will specify the date upon which

the administrative law judge’s decision

shall become effective as the final

decision of the Department. A petition

for reconsideration of a Department

6470 Federal Register / Vol. 65, No. 27 / Wednesday February 9, 2000 / Rules and Regulations

order declining review will be

entertained only when the order

exercises, in part, the DOT

decisionmaker’s discretionary right of

review, and such petition shall be

limited to the single question of whether

any issue designated for review and any

issue not so designated are so

inseparably interrelated that the former

cannot be reviewed independently or

that the latter cannot be made effective

before the final decision of the

Department in the review proceeding. (d) Review proceedings. (1) The DOT

decisionmaker may take review of an

initial or recommended decision upon

petition or on his or her own initiative

or both. The DOT decisionmaker will

issue a final order upon such review

without further proceedings on any or

all the issues where he or she finds that

matters raised do not warrant further

proceedings. (2) Where the DOT decisionmaker

desires further proceedings, he or she

will issue an order for review that will:

(i) Specify the issues to which review

will be limited. Only those issues

specified in the order shall be argued on

brief to the DOT decisionmaker,

pursuant to § 302.35, and considered by

the DOT decisionmaker;

(ii) Specify the portions of the

administrative law judge’s decision, if

any, that are to be stayed as well as the

effective date of the remaining portions

thereof; and

(iii) Designate the parties to the

review proceeding.

§ 302.33 Tentative decision of the DOT

decisionmaker.

(a) Except as provided in paragraph

(b) of this section, whenever the

administrative law judge certifies the

record in a proceeding directly to the

DOT decisionmaker without issuing an

initial or recommended decision in the

matter, the DOT decisionmaker shall,

after consideration of any briefs

submitted by the parties, prepare a

tentative decision and serve it upon the

parties. Every tentative decision of the

DOT decisionmaker shall state the

names of the persons who are to receive

copies of it, the time within which

exceptions to such decision and briefs,

if any, in support of or in opposition to

the exceptions may be filed, and the

date when such decision will become

final in the absence of exceptions

thereto. If no exceptions are filed to the

tentative decision of the DOT

decisionmaker within the period fixed,

it shall become final at the expiration of

such period unless the DOT

decisionmaker orders otherwise.

(b) The DOT decisionmaker may, in

his or her discretion, omit a tentative

decision in proceedings under subpart

B. Final decisions of the DOT

decisionmaker are subject to review as

provided in § 302.18.

§ 302.34 Exceptions to tentative decisions

of the DOT decisionmaker.

(a) Time for filing. Within ten (10)

days after service of any tentative

decision of the DOT decisionmaker, any

party to a proceeding may file

exceptions to such decision with the

DOT decisionmaker.

(b) Form and contents of exceptions.

Each exception shall be separately

numbered and shall be stated as a

separate point, and appellants shall not

restate the same point in several

exceptions. Each exception shall state,

sufficiently identify, and be limited to,

an ultimate conclusion in the decision

to which exception is taken (such as,

selection of one carrier rather than

another to serve any point or points;

points included in or excluded from a

new route; imposition or failure to

impose a given restriction;

determination of a rate at a given

amount rather than another). No specific

exception shall be taken with respect to

underlying findings or statements, but

exceptions to an ultimate conclusion

shall be deemed to include exceptions

to all underlying findings and

statements pertaining thereto; Provided,

however, That exceptions shall specify

any matters of law, fact, or policy that

were not argued before the

administrative law judge but will be set

forth for the first time on brief to the

DOT decisionmaker.

(c) Effect of failure to file timely and

adequate exceptions. No objection may

be made on brief or at a later time to an

ultimate conclusion that is not expressly

made the subject of an exception in

compliance with the provisions of this

section; Provided, however, That any

party may file a brief in support of the

decision and in opposition to the

exceptions filed by any other party.

§ 302.35 Briefs to the DOT decisionmaker.

(a) Time for filing. Within such period

after the date of service of any tentative

decision by the DOT decisionmaker as

may be fixed therein, any party may file

a brief addressed to the DOT

decisionmaker in support of his or her

exceptions to such decision or in

opposition to the exceptions filed by

any other party. Briefs to the DOT

decisionmaker on initial or

recommended decisions of

administrative law judges shall be filed

only in those cases where the DOT

decisionmaker grants discretionary

review and orders further proceedings,

pursuant to § 302.32(d)(2), and only

upon those issues specified in the order.

Such briefs shall be filed within thirty

(30) days after date of service of the

order granting discretionary review

unless otherwise specified in the order.

In cases where, because of the limited

number of parties and the nature of the

issues, the filing of opening, answering,

and reply briefs will not unduly delay

the proceeding and will assist in its

proper disposition, the DOT

decisionmaker may direct that the

parties file briefs at different times

rather than at the same time.

(b) Effect of failure to restate

objections in briefs. In determining the

merits of an appeal, the DOT

decisionmaker will not consider the

exceptions or the petition for

discretionary review but will consider

only the brief. Each objection contained

in the exceptions or each issue specified

in the DOT decisionmaker’s order

exercising discretionary review must be

restated and supported by a statement

and adequate discussion of all matters

relied upon, in a brief filed pursuant to

and in compliance with the

requirements of this section.

(c) Formal specifications of briefs. (1)

Contents. Each brief shall discuss every

point of law, fact, or precedent that the

party submitting it is entitled to raise

and that it wishes the DOT

decisionmaker to consider. Each brief

shall include a summary of the

argument not to exceed five (5) pages.

Support and justification for every point

raised shall include itemized references

to the pages of the transcript of hearing,

exhibit or other matter of record, and

citations of the statutes, regulations, or

principal authorities relied upon. If a

brief or any point discussed in the brief

is not in substantial conformity with the

requirement for such support and

justification, no motion to strike or

dismiss such document shall be made

but the DOT decisionmaker may

disregard the points involved. Copies of

briefs may be furnished by use of

electronic media in a format acceptable

to the Department and the parties.

(2) Incorporation by reference. Briefs

to the DOT decisionmaker shall be

completely self-contained and shall not

incorporate by reference any portion of

any other brief or pleading; Provided,

however, That instead of submitting a

brief to the DOT decisionmaker a party

may adopt by reference specifically

identified pages or the whole of his or

her prior brief to the administrative law

judge if the latter complies with all

requirements of this section. In such

cases, the party shall file with

Department of Transportation Dockets a

letter exercising this privilege and serve

all parties in the same manner as a brief

to the DOT decisionmaker.

Federal Register / Vol. 65, No. 27 / Wednesday February 9, 2000 / Rules and Regulations 6471

(3) Length. Except by permission or

direction of the DOT decisionmaker,

briefs shall not exceed fifty (50) pages

including pages contained in any

appendix, table, chart, or other

document physically attached to the

brief, but excluding maps and the

summary of the argument. In this case

‘‘map’’ means only those pictorial

representations of routes, flight paths,

mileage, and similar ancillary data that

are superimposed on geographic

drawings and contain only such text as

is needed to explain the pictorial

representation.

§ 302.36 Oral argument before the DOT

decisionmaker.

(a) If any party desires to argue a case

orally before the DOT decisionmaker, he

or she shall request leave to make such

argument in his or her exceptions or

brief. Such request shall be filed no later

than the date when briefs before the

DOT decisionmaker are due in the

proceeding. The DOT decisionmaker

will rule on such request, and, if oral

argument is to be allowed, all parties to

the proceeding will be advised of the

date and hour set for such argument and

the amount of time allowed to each

party. Requests for oral argument on

petitions for discretionary review will

not be entertained.

(b) Pamphlets, charts, and other

written data may be offered to the DOT

decisionmaker at oral argument only in

accordance with the following rules: All

such material shall be limited to facts in

the record of the case being argued and

shall be served on all parties to the

proceeding with four (4) copies

transmitted to Department of

Transportation Dockets at least five (5)

calendar days in advance of the

argument.

§ 302.37 Waiver of procedural steps after

hearing.

The parties to any proceeding may

agree to waive any one or more of the

procedural steps provided in § 302.29

through § 302.36.

§ 302.38 Final decision of the DOT

Decisionmaker.

When a case stands submitted to the

DOT decisionmaker for final decision

on the merits, he or she will dispose of

the issues presented by entering an

appropriate order that will include a

statement of the reasons for his or her

findings and conclusions. Such orders

shall be deemed ‘‘final orders’’ within

the purview of § 302.14(a), in the

manner provided by § 302.18.

Subpart B—Rules Applicable to U.S.

Air Carrier Certificate and Foreign Air

Carrier Permit Licensing Proceedings

§ 302.201 Applicability.

(a) This subpart sets forth the specific

rules applicable to proceedings on:

(1) U.S. air carrier certificates of

public convenience and necessity and

U.S. all-cargo air service certificates

under Chapter 411 of the Statute,

including renewals, amendments,

modifications, suspensions and

transfers of such certificates.

(2) Foreign air carrier permits under

Chapter 413 of the Statute, including

renewals, amendments, modifications,

suspensions, and transfers of such

permits.

(b) Except as modified by this subpart,

the provisions of subpart A of this part

apply.

§ 302.202 Contents of applications.

(a) Certificate applications filed under

this subpart shall contain the

information required by part 201 of this

chapter and, where applicable, part 204

of this chapter, and foreign air carrier

permit applications shall contain the

information required by part 211 of this

chapter, along with any other

information that the applicant desires

the Department to notice officially.

(b) Applications shall include a notice

on the cover page stating that any

person may support or oppose the

application by filing an answer and

serving a copy of the answer on all

persons served with the application.

The notice shall also state the due date

for answers. Amendments to

applications will be considered new

applications for the purpose of

calculating the time limitations of this

subsection.

(c) Applications shall include a list of

the names and addresses of all persons

who have been served in accordance

with § 302.203.

(d) Where required, each application

shall be accompanied by an Energy

Statement in conformity with part 313

of this chapter.

§ 302.203 Service of documents.

(a) General requirements. (1)

Applicants shall serve on the persons

listed in paragraph (b) of this section a

notice that an application has been

filed, and upon request shall promptly

provide those persons with copies of the

application and supporting documents.

The notice must clearly state the

authority sought and the due date for

other pleadings.

(2) Applicants shall serve a complete

copy of the application on the Manager

of the FAA Flight Standards District

Office responsible for processing the

application for any FAA authority

needed to conduct the proposed

operations.

(3) After an order under § 302.210 has

been issued, parties need only serve

documents on those persons listed in

the service list accompanying the order.

(4) In the case of an application

sought to be consolidated, the applicant

shall serve the notice required in

paragraph (a)(1) of this section on all

persons served by the original applicant.

(b) Persons to be served—

(1) U.S. air carriers. (i) In certificate

proceedings, except for those

proceedings that involve charter-only

authority under section 41102(a)(3) of

the Statute:

(A) Applicants for certificates to

engage in interstate air transportation

and other persons who file a pleading in

the docket shall serve:

(1) The airport authority of each

airport that the applicant initially

proposes to serve, and

(2) Any other person who has filed a

pleading in the docket.

(B) Applicants for certificates to

engage in foreign air transportation and

other persons who file a pleading in the

docket shall serve:

(1) All U.S. air carriers (including

commuter air carriers) that publish

schedules in the Official Airline Guide

or in the Air Cargo Guide for the

country-pair market(s) specified in the

application,

(2) The airport authority of each U.S.

airport that the applicant initially

proposes to serve, and

(3) Any other person who has filed a

pleading in the docket.

(ii) In certificate proceedings

involving charter-only authority under

41102(a)(3) of the Statute, applicants

and other persons who file a pleading in

the docket shall serve any other person

who has filed a pleading in the docket.

(2) Foreign air carriers. (i) In permit

proceedings, except for those

proceedings involving charter-only

authority, applicants and other persons

who have filed a pleading in the docket

shall serve:

(A) All U.S. air carriers (including

commuter air carriers) that publish

schedules in the Official Airline Guide

or the Air Cargo Guide for the countrypair market(s) specified in the

application,

(B) The U.S. Department of State,

(C) The airport authority of each U.S.

airport that the applicant initially

proposes to serve, and

(D) Any other person who has filed a

pleading in the docket.

(ii) In foreign air carrier permit

proceedings for charter-only authority,

6472 Federal Register / Vol. 65, No. 27 / Wednesday February 9, 2000 / Rules and Regulations

applicants and other persons who file a

pleading in the docket shall serve the

U.S. Department of State and any other

person who has filed a pleading in the

docket.

(c) Additional service. The

Department may, at its discretion, order

additional service upon such persons as

the facts of the situation warrant. Where

only notices are required, parties are

encouraged to serve copies of their

actual pleadings where feasible. In any

proceeding directly involving air

transportation to the Federated States of

Micronesia, the Marshall Islands or

Palau, the Department and any party or

participant in the proceeding shall serve

all documents on the President and the

designated authorities of the

government(s) involved.

§ 302.204 Responsive documents.

(a) Any person may file an answer in

support of or in opposition to any

application. Answers shall set forth the

basis for the position taken, including

any economic data or other facts relied

on. Except as otherwise provided in

§ 302.212(d), answers shall be filed

within twenty one (21) days of the

original or amended application and

shall be served in accordance with

§ 302.203.

(b) Replies to answers shall be filed

within fourteen (14) days after the filing

of the answer.

(c) Persons having common interests

shall, to the extent practicable, arrange

for the joint preparation of pleadings.

§ 302.205 Economic data and other facts.

Whenever economic data and other

facts are provided in any pleading, such

information shall include enough detail

so that final results can be obtained

without further clarification. Sources,

bases, and methodology used in

constructing exhibits, including any

estimates or judgments, shall be

provided.

§ 302.206 Verification.

Any pleading filed under this subpart

shall include a certification as provided

in § 302.4(b).

Disposition of Applications

§ 302.207 Cases to be decided on written

submissions.

(a) Applications under this subpart

will be decided on the basis of written

submissions unless the DOT

decisionmaker, on petition as provided

in § 302.208 or on his or her own

initiative, determines that an oral

presentation or an administrative law

judge’s decision is required because:

(1) Use of written procedures will

prejudice a party;

(2) Material issues of decisional fact

cannot adequately be resolved without

oral evidentiary hearing procedures; or

(3) Assignment of an application for

oral evidentiary hearing procedures or

an initial or recommended decision by

an administrative law judge is otherwise

required by the public interest.

(b) The standards employed in

deciding cases under § 302.210(a)(1) or

(5) shall be the same as the standards

applied in cases decided under

§ 302.210(a)(4). These are the standards

set forth in the Statute as interpreted

and expanded upon under that Statute.

§ 302.208 Petitions for oral presentation or

judge’s decision.

(a) Any person may file a petition for

oral evidentiary hearing, oral argument,

an initial or recommended decision, or

any combination of these. Petitions shall

demonstrate that one or more of the

criteria set forth in § 302.207 are

applicable to the issues for which an

oral presentation or judge’s decision is

requested. Such petitions shall be

supported by a detailed explanation of

the following:

(1) Why the evidence or argument to

be presented cannot be submitted in the

form of written evidence or briefs;

(2) Which issues should be examined

by an administrative law judge and why

such issues should not be presented

directly to the DOT decisionmaker for

decision;

(3) An estimate of the time required

for the oral presentation and the number

of witnesses whom the petitioner would

present; and

(4) If cross-examination of any

witness is desired, the name of the

witness, if known, the subject matter of

the desired cross-examination or the

title or number of the exhibit to be

cross-examined, what the petitioner

expects to establish by the crossexamination, and an estimate of the

time needed for it.

(b) Petitions for an oral hearing, oral

argument, or an administrative law

judge’s decision shall be filed no later

than the due date for answers in

proceedings governed by § 302.211,

§ 302.212 and § 302.213, and be

accompanied with the information

specified in paragraphs (a)(1) and (a)(2)

of this section. Filing of the information

required in paragraphs (a)(3) and (a)(4)

of this section may be deferred until the

DOT decisionmaker has decided to hold

a formal proceeding.

(c) Where a stipulation of disputed

facts would eliminate the need for an

oral presentation or an administrative

law judge’s decision, parties shall

include in their petitions an offer to

withdraw the request should the

stipulation be made.

§ 302.209 Procedures for deferral of

applications.

Within twenty-eight (28) days after

the filing of an application under this

subpart, the DOT decisionmaker may

defer further processing of the

application until all of the information

necessary to process that application is

submitted. The time periods contained

in this subpart with respect to the

disposition of the application shall not

begin to run until the application is

complete. In addition, the DOT

decisionmaker may defer action on a

foreign air carrier permit application for

foreign policy reasons.

§ 302.210 Disposition of applications;

orders establishing further procedures.

(a) General requirements. The DOT

decisionmaker will take one of the

following actions with respect to all or

any portion of each application:

(1) Issue an Order to Show Cause why

the application should not be granted,

denied or dismissed, in whole or in

part.

(2) Issue a Final Order granting the

application if the DOT decisionmaker

determines that there are no material

issues of fact that warrant further

procedures for their resolution.

(3) Issue a Final Order dismissing or

rejecting the application for lack of

prosecution or if the application does

not comply with this subpart or is

otherwise materially deficient.

(4) Issue an order setting the

application for oral evidentiary hearing.

The order will establish the scope of the

issues to be considered and the

procedures to be employed, and will

indicate whether one or more attorneys

from the Office of the Assistant General

Counsel for Aviation Enforcement and

Proceedings will participate as a party.

All of the procedures set forth in

§ 302.214 through § 302.218 will apply

unless the DOT decisionmaker decides

otherwise.

(5) Begin to make a determination

with respect to the application under

simplified procedures without oral

evidentiary hearing. In this event, the

DOT decisionmaker may indicate

which, if any, of the procedural steps set

forth in § 302.215 through § 302.219 will

be employed. The DOT decisionmaker

may also indicate that other non-oral

evidentiary hearing procedures will be

employed.

(b) Additional evidence. An order

establishing further procedures under

paragraph (a)(1), (4) or (5) of this section

may provide for the filing of additional

evidence.

Federal Register / Vol. 65, No. 27 / Wednesday February 9, 2000 / Rules and Regulations 6473

(c) Petitions for reconsideration.

Petitions for reconsideration of an order

issued under this section will not be

entertained except to the extent that the

order dismissed or rejected all or part of

an application. If a petition for

reconsideration results in the

reinstatement of all or part of an

application, the deadline for final

Department decision established in

§ 302.220 will be calculated from the

date of the order reinstating the

application.

§ 302.211 Procedures in certificate cases

involving initial or continuing fitness.

(a) Applicability. This section applies

to cases involving certificate authority

under sections 41102 and 41103 of the

Statute, including applications for new

authority, renewals, amendments,

modifications, suspensions, and

transfers of such certificates, where the

issues involve a determination of the

applicant’s fitness to operate. Where

such applications propose the operation

of scheduled service in limited entry

international markets, the provisions of

§ 302.212 also apply.

(b) Order establishing further

procedures. Within 90 days after a

complete application is filed, the DOT

decisionmaker will take action as

provided in § 302.210.

§ 302.212 Procedures in certificate cases

involving international routes.

(a) Applicability. This section applies

to cases involving certificates under

section 41102 of the Statute that involve

international routes, including

applications to obtain, renew, amend,

transfer, or remove restrictions in such

certificates.

(b) Answers to applications. Answers

shall be filed within twenty one (21)

days after the filing of the original

application.

(c) Conforming applications or

motions to modify scope. Any person

may file an application for the same

authority as sought in an application to

obtain, renew, or amend a certificate

filed under paragraph (a) of this section.

Requests to modify the issues to be

decided and to consolidate applications

filed in other dockets shall be filed as

a ‘‘motion to modify scope.’’ Motions

and applications under this section

shall include economic data, other facts,

and any argument in support of the

person’s position and must be filed

within twenty one (21) days after the

original application is filed. Later-filed

competing applications shall conform to

the base and forecast years used by the

original applicant and need not contain

traffic and financial data for markets for

which data have already been submitted

by another person.

(d) Answers to conforming

applications or motions to modify

scope. Answers to conforming

applications and motions to modify

scope filed in accordance with

paragraph (b) of this section shall be

filed within fourteen (14) days after the

filing of the conforming application or

motion. Answers may argue that an

application should be dismissed.

Answers may also seek to consolidate

an application filed in another docket if

that application conforms to the scope

of the proceeding proposed in the

motion to modify scope and includes

the information prescribed in § 302.202.

Answers and applications shall not,

however, propose the consideration of

additional markets.

(e) Order establishing further

procedures. Within 90 days after a

complete application is filed, the DOT

decisionmaker will issue an order as

provided in § 302.210.

§ 302.213 Procedures in foreign air carrier

permit cases.

(a) Applicability. This section applies

to cases involving foreign air carrier

permits under section 41302 of the

Statute, including applications for new

authority, renewals, amendments,

modifications, suspensions, and

transfers of such permits.

(b) Executive departments. In addition

to the standards set forth in

§ 302.207(b), the views of other

executive agencies, such as the

Department of State, and the Federal

Aviation Administration’s evaluation of

the applicant’s operational fitness, may

be sought in determining the

appropriate action on applications filed

under this section.

(c) Order establishing further

procedures. As soon as possible after the

date that answers are due and all

information needed to reach a decision

is filed, the DOT decisionmaker will

issue an order as provided in § 302.210.

§ 302.214 Oral evidentiary hearing.

If the DOT decisionmaker determines

under § 302.210(a)(4) that an oral

evidentiary hearing should be held, the

application or applications will be set

for oral hearing before an administrative

law judge. The issues will be those set

forth in the order establishing further

procedures. The procedures in § 302.17

to § 302.38 governing the conduct of

oral evidentiary hearings will apply.

§ 302.215 Briefs to the administrative law

judge.

Briefs to the administrative law judge

shall be filed within the following

periods, as applicable:

(a) Fourteen (14) days after the close

of the oral evidentiary hearing, unless

the administrative law judge determines

that, under the circumstances of the

case, briefs are not necessary or that the

parties will require more time to prepare

briefs; or

(b) Fourteen (14) days after the filing

of additional evidence called for in the

order establishing further procedures if

no oral evidentiary hearing is called for,

unless the DOT decisionmaker

determines that some other period

should be allowed.

§ 302.216 Administrative law judge’s initial

or recommended decision.

(a) In a case that has been set for oral

evidentiary hearing under

§ 302.210(a)(4), the administrative law

judge shall adopt and serve an initial or

recommended decision within one

hundred thirty-six (136) days after the

issuance of the order establishing

further procedures unless:

(1) The DOT decisionmaker, having

found extraordinary circumstances, has

by order delayed the initial or

recommended decision by a period of

not more than thirty (30) days; or

(2) An applicant has failed to meet the

procedural schedule adopted by the

judge or the DOT decisionmaker. In this

case, the administrative law judge may,

by notice, extend the due date for the

issuance of an initial or recommended

decision for a period not to exceed the

period of delay caused by the applicant.

(b) In a case in which some of the

issues have not been set for oral hearing

under § 302.210(a)(4), the administrative

law judge shall adopt and serve an

initial or recommended decision within

the time established by the DOT

decisionmaker in the order establishing

further procedures, except that that due

date may be extended in accordance

with paragraph (a)(2) of this section.

(c) The initial or recommended

decision shall be issued by the

administrative law judge fourteen (14)

days after it is served. Unless exceptions

are filed under § 302.217 or the DOT

decisionmaker issues an order to review

on his or her own initiative, an initial

decision shall become effective as the

final order of the Department the day it

is issued. Where exceptions are timely

filed or the DOT decisionmaker takes

action to review on his or her own

initiative, the effectiveness of the initial

decision is stayed until further order of

the DOT decisionmaker.

(d) In all other respects, the

provisions of § 302.31 shall apply.

§ 302.217 Exceptions to administrative law

judge’s initial or recommended decision.

(a) Within seven (7) days after service

of any initial or recommended decision

6474 Federal Register / Vol. 65, No. 27 / Wednesday February 9, 2000 / Rules and Regulations

of an administrative law judge, any

party may file exceptions to the decision

with the DOT decisionmaker.

(b) If timely and adequate exceptions

are filed, review of the initial or

recommended decision is automatic.

(c) In all other respects, the provisions

of § 302.34 shall apply.

§ 302.218 Briefs to the DOT

decisionmaker.

(a) In a case in which an initial or

recommended decision has been served

and exceptions have been filed, any

party may file a brief in support of or

in opposition to any exceptions. Such

briefs shall be filed within fourteen (14)

days after service of the initial or

recommended decision.

(b) In a case in which no exceptions

have been filed, briefs shall not be filed

unless the DOT decisionmaker has

taken review of the initial or

recommended decision on his or her

own initiative and has specifically

provided for the filing of such briefs.

(c) In all other respect, the provisions

of § 302.35 shall apply.

§ 302.219 Oral argument before the DOT

decisionmaker.

If the order establishing further

procedures provides for an oral

argument, or if the DOT decisionmaker

otherwise decides to hear oral argument,

all parties will be notified of the date

and hour set for that argument and the

amount of time allowed each party. The

provisions of § 302.36(b) shall also

apply.

§ 302.220 Final decision of the

Department.

In addition to the provisions of

§ 302.38, the following provisions shall

apply:

(a) In the case of a certificate

application that has been set for oral

evidentiary hearing under

§ 302.210(a)(4), the Department will

issue its final order within ninety (90)

days after the initial or recommended

decision is issued. If an application has

failed to meet the procedural schedule

established by the Department, the DOT

decisionmaker may, by notice, extend

the date for a final decision for a period

equal to the period of delay caused by

the applicant.

(b) If the DOT decisionmaker does not

act in the time period established in

paragraph (a) of this section:

(1) in the case of an application for a

certificate to engage in foreign air

transportation, the recommended

decision shall be transmitted to the

President of the United States under 49

U.S.C. 41307; or

(2) in the case of an application not

subject to review by the President of the

United States, the initial decision shall

become effective as the final order of the

Department.

(c) In the case of a certificate

application that has been processed

under § 302.210(a)(1) or (5), the

Department will issue its final order

within one hundred eighty (180) days

after the order establishing further

procedures. If an applicant has failed to

meet the procedural schedule

established by the Department, the DOT

decisionmaker may, by notice, extend

the due date for a final decision for a

period equal to the period of delay

caused by the applicant.

Subpart C—Rules Applicable to

Exemption and Certain Other

Proceedings

§ 302.301 Applicability.

(a) This subpart sets forth the specific

rules applicable to proceedings for

exemptions under sections 40109 and

41714 of the Statute, including the

granting of emergency exemptions, as

well as applications for frequency

allocations and other limited authority

under international agreements. Except

as modified by this subpart, the

provisions of subpart A of this part

apply.

(b) Proceedings for the issuance of

exemptions by regulation are subject to

the provisions governing rulemaking.

§ 302.302 Filing of applications.

(a) Except as provided in paragraphs

(b) and (c) of this section, applications

for exemption shall conform to the

requirements of §§ 302.3 and 302.4.

(b) Applications for exemption from

section 41101 or 41301 of the Statute

(including those that incorporate an

exemption from section 41504) that

involve ten (10) or fewer flights may be

submitted to the U.S. Air Carrier

Licensing Division or the Foreign Air

Carrier Licensing Division (as

appropriate), Office of International

Aviation, on OST Form 4536. However,

that form may not be used for:

(1) Applications filed under section

40109(g) of the Statute;

(2) Applications by persons who do

not have either:

(i) An effective air carrier certificate or

foreign air carrier permit from the

Department, or

(ii) A properly completed application

for such a certificate or permit, and an

effective exemption from the

Department for operations similar to

those proposed;

(3) Successive applications for the

same or similar authority that would

total more than ten (10) flights; or

(4) Any other application for which

the Department decides the

requirements of §§ 302.3 and 302.4 are

more appropriate. Upon a showing of

good cause, an application may be filed

by cablegram, telegram, facsimile,

electronic mail (when available), or

telephone; all such telephonic requests

must be confirmed by written

application within three (3) business

days of the original request.

(c) Applications for exemption from

Chapter 415 of the Statute, from tariffs

(except for waivers filed under subpart

Q of part 221 of this chapter), or from

Department regulations concerning

tariffs may be submitted by letter. Three

copies of such applications shall be sent

to Department of Transportation

Dockets. Upon a showing of good cause,

the application may also be filed by

cablegram, telegram, facsimile,

electronic mail (when available), or

telephone; all such requests must be

confirmed by written application within

three (3) business days of the original

request.

(d) Applications filed under

paragraph (a) of this section shall be

docketed and any additional documents

filed shall be identified by the assigned

docket number.

(e) Applications filed under paragraph

(b) or (c) of this section will normally

not be docketed. The Department may

require such applications to be docketed

if appropriate. The Department will

publish a notice of such applications in

its Weekly List of Applications Filed.

§ 302.303 Contents of applications.

(a) Title. An application filed under

§ 302.302(a) shall be entitled

‘‘Application for . . .’’ (followed by the

type of authority request, e.g.,

exemption, frequency allocation) and,

where applicable, shall state if the

application involves renewal and/or

amendment of existing exemption

authority.

(b) Factual statement. Each

application shall state:

(1) The section(s) of the Statute or the

rule, regulation, term, condition, or

limitation from which the exemption is

requested;

(2) The proposed effective date and

duration of the exemption;

(3) A description of how the applicant

proposes to exercise the authority (for

example, applications for exemption

from section 41101 or 41301 of the

Statute should include at least: places to

be served; equipment types, capacity

and source; type and frequency or

service; and other operations that the

proposed service will connect with or

support); and

(4) Any other facts the applicant relies

upon to establish that the proposed

Federal Register / Vol. 65, No. 27 / Wednesday February 9, 2000 / Rules and Regulations 6475

service will be consistent with the

public interest.

(c) Supporting evidence. (1) Each

application shall be accompanied by:

(i) A statement of economic data, or

other matters or information that the

applicant desires the Department to

officially notice;

(ii) Affidavits, or statements under

penalty of 18 U.S.C. 1001, establishing

any other facts the applicant wants the

Department to rely upon; and

(iii) Information showing the

applicant is qualified to perform the

proposed services.

(2) In addition to the information

required by paragraph (c)(1) of this

section, an application for exemption

from section 41101 or 41301 of the

Statute (except exemptions under

section 40109(g)) shall state whether the

authority sought is governed by a

bilateral agreement or by principles of

comity and reciprocity. Applications by

foreign carriers shall state whether the

applicant’s homeland government

grants U.S. carriers authority similar to

that requested. If so, the application

shall state whether the fact of

reciprocity has been established by the

Department and cite the pertinent

finding. If the fact of reciprocity has not

been established by the Department, the

application shall include

documentation to establish such

reciprocity.

(d) Emergency cabotage. Applications

under section 40109(g) of the Statute

shall, in addition to the information

required in paragraphs (b) and (c) of this

section, contain evidence showing that:

(1) Because of an emergency created

by unusual circumstances not arising in

the normal course of business, traffic in

the markets requested cannot be

accommodated by air carriers holding

certificates under section 41102 of the

Statute;

(2) All possible efforts have been

made to accommodate the traffic by

using the resources of such air carriers

(including, for example, the use of

foreign aircraft, or sections of foreign

aircraft, under lease or charter to such

air carriers, and the use of such air

carriers’ reservation systems to the

extent practicable);

(3) The authority requested is

necessary to avoid unreasonable

hardship for the traffic in the market

that cannot be accommodated by air

carriers; and

(4) In any case where an inability to

accommodate traffic in a market results

from a labor dispute, the grant of the

requested exemption will not result in

an unreasonable advantage to any party

in the dispute.

(e) Renewal applications. An

application requesting renewal of an

exemption or other limited authority

under this subpart that is intended to

invoke the automatic extension

provisions of 5 U.S.C. 558(c) shall

comply with, and contain the

statements and information required by

part 377 of this chapter.

(f) Record of service. An application

shall list the parties served as required

by § 302.304.

§ 302.304 Service of documents.

(a) General requirements. (1) An

application for exemption and

responsive pleadings shall be served as

provided by § 302.7.

(2) Applicants shall serve on the

persons listed in paragraph (b) of this

section a complete copy of the

application and any supporting

documents. Responsive pleadings shall

be served on the same persons as

applications.

(b) Persons to be served. (1)

Applicants for scheduled interstate air

transportation authority shall serve:

(i) All U.S. air carriers (including

commuter air carriers) that publish

schedules in the Official Airline Guide

or the Air Cargo Guide for the city-pair

market(s) specified in the application,

(ii) The airport authority of each U.S.

airport that the applicant proposes to

serve, and

(iii) Any other person who has filed

a pleading in a related proceeding under

section 41102, 41302, or 40109 of the

Statute.

(3) Applicants for charter-only or

nonscheduled-only authority shall serve

any person who has filed a pleading in

a related proceeding under section

41102, 41302, or 40109 of the Statute.

However, applicants that file fewer than

sixteen (16) days prior to the proposed

start of service must also serve:

(i) Those U.S. carriers (including

commuter carriers) that are known to be

operating in the general market(s) at

issue and

(ii) Those persons who may be

presumed to have an interest in the

subject matter of the application.

(4) Applicants for slot exemptions

under section 41714 of the Statute shall

serve:

(i) All U.S. air carriers (including

commuter air carriers) that publish

schedules in the Official Airline Guide

or the Air Cargo Guide for the airport(s)

specified in the application,

(ii) The manager of each of the

affected airports,

(iii) The mayor of the city that each

affected airport serves,

(iv) The Governor of the State in

which each affected airport is located,

and

(v) Any other person who has filed a

pleading in a related proceeding under

section 41714 of the Statute.

(5) Additional service. The

Department may, in its discretion, order

additional service upon any other

person.

§ 302.305 Posting of applications.

A copy of every docketed application

for exemption shall be posted in

Department of Transportation Dockets

and listed in the Department’s Weekly

List of Applications Filed. A copy of

every undocketed application shall be

posted in the Licensing Division’s lobby

of the Office of International Aviation.

§ 302.306 Dismissal or rejection of

incomplete applications.

(a) Dismissal or rejection. The

Department may dismiss or reject any

application for exemption that does not

comply with the requirements of this

part.

(b) Additional data. The Department

may require the filing of additional data

with respect to any application for

exemption, answer, or reply.

§ 302.307 Answers to applications.

Within fifteen (15) days after the filing

of an application for exemption, any

person may file an answer in support of

or in opposition to the grant of a

requested exemption. Such answer shall

set forth in detail the reasons why the

exemption should be granted or denied.

An answer shall include a statement of

economic data or other matters the

Department is requested to officially

notice, and shall be accompanied by

affidavits establishing any other facts

relied upon.

§ 302.308 Replies to answers.

Within seven (7) days after the last

day for filing an answer, any interested

party may file a reply to one or more

answers.

§ 302.309 Requests for hearing.

The Department will not normally

conduct oral evidentiary hearings

concerning applications for exemption.

However, the Department may, in its

discretion, order such a hearing on an

application. Any applicant, or any

person opposing an application, may

request an oral evidentiary hearing.

Such a request shall set forth in detail

the reasons why the filing of affidavits

or other written evidence will not

permit the fair and expeditious

disposition of the application. A request

relying on factual assertions shall be

accompanied by affidavits establishing

such facts. If the Department orders an

oral evidentiary hearing, the procedures

in subpart A of this part shall apply.

6476 Federal Register / Vol. 65, No. 27 / Wednesday February 9, 2000 / Rules and Regulations

§ 302.310 Exemptions on the Department’s

initiative.

The Department may grant

exemptions on its own initiative when

it finds that such exemptions are

required by the circumstances and

consistent with the public interest.

§ 302.311 Emergency exemptions.

(a) Shortened procedures. When

required by the circumstances and

consistent with the public interest, the

Department may take action, without

notice, on exemption applications prior

to the expiration of the normal period

for filing answers and replies. When

required in a particular proceeding, the

Department may specify a lesser time

for the filing of answers and replies, and

notify interested persons of this time

period.

(b)(1) Applications. Applications for

emergency exemption need not conform

to the requirements of this subpart or of

subpart A of this part (except as

provided in this section and in

§ 302.303(d) concerning emergency

cabotage requests). However, an

application for emergency exemption

must normally be in writing and must

state in detail the facts and evidence

that support the application, the

grounds for the exemption, and the

public interest basis for the authority

sought. In addition, the application

shall state specific reasons that justify

departure from the normal exemption

application procedures. The application

shall also identify those persons notified

as required by paragraph (c) of this

section. The Department may require

additional information from any

applicant before acting on an

application.

(2) Oral requests. The Department

will consider oral requests, including

telephone requests, for emergency

exemption authority under this section

in circumstances that do not permit the

immediate filing of a written

application. All oral requests must,

however, provide the information

required in paragraph (b)(1) of this

section, except that actual evidence in

support of the application need not be

tendered when the request is made. All

oral requests must be confirmed by

written application, together with all

supporting evidence, within three (3)

business days of the original request.

(c) Notice. Except when the

Department decides that no notice need

be given, applicants for emergency

exemption shall notify, as appropriate,

those persons specified in § 302.304(b)

of this subpart. Such notification shall

be made in the same manner, contain

the same information, and be

dispatched at the same time, as the

application made to the Department.

Subpart D—Rules Applicable to

Enforcement Proceedings

§ 302.401 Applicability.

This subpart contains the specific

rules that apply to Department

proceedings to enforce the provisions of

Subtitle VII of the Statute, and the rules,

regulations, orders and other

requirements issued by the Department,

as well as the filing of informal and

formal complaints. Except as modified

by this subpart, the provisions of

subpart A of this part apply.

§ 302.402 Definitions.

Assistant General Counsel, when used

in this subpart, refers to the Assistant

General Counsel for Aviation

Enforcement and Proceedings.

Complainant refers to the person

filing a complaint.

Parties, when used in this subpart,

include the Office of the Assistant

General Counsel, the respondent, the

complainant, and any other person

permitted to intervene under § 302.20.

Respondent refers to the person

against whom a complaint is filed.

§ 302.403 Informal Complaints.

Any person may submit in writing to

the Assistant General Counsel an

informal complaint with respect to

anything done or omitted to be done by

any person in contravention of any

provision of the Statute or any

requirement established thereunder.

Such informal complaints need not

otherwise comply with the provisions of

this part. Matters so presented may, if

their nature warrants, be handled by

correspondence or conference with the

appropriate persons. Any matter not

disposed of informally may be made the

subject of an enforcement proceeding

pursuant to this subpart. The filing of an

informal complaint shall not bar the

subsequent filing of a formal complaint.

§ 302.404 Formal complaints.

(a) Filing. Any person may make a

formal complaint to the Assistant

General Counsel about any violation of

the economic regulatory provisions of

the Statute or of the Department’s rules,

regulations, orders, or other

requirements. Every formal complaint

shall conform to the requirements of

§ 302.3 and § 302.4, concerning the form

and filing of documents. The filing of a

complaint shall result in the institution

of an enforcement proceeding only if the

Assistant General Counsel issues a

notice instituting such a proceeding as

to all or part of the complaint under

§ 302.406(a) or the Deputy General

Counsel does so under § 302.406(c).

(b) Amendment. A formal complaint

may be amended at any time before

service of an answer to the complaint.

After service of an answer but before

institution of an enforcement

proceeding, the complaint may be

amended with the permission of the

Assistant General Counsel. After

institution of an enforcement

proceeding, the complaint may be

amended only on grant of a motion filed

under § 302.11.

(c) Insufficiency of formal complaint.

In any case where the Assistant General

Counsel is of the opinion that a

complaint does not sufficiently set forth

matters required by any applicable rule,

regulation or order of the Department, or

is otherwise insufficient, he or she may

advise the complainant of the deficiency

and require that any additional

information be supplied by amendment.

(d) Joinder of complaints or

complainants. Two or more grounds of

complaints involving substantially the

same purposes, subject or state of facts

may be included in one complaint even

though they involve more than one

respondent. Two or more complainants

may join in one complaint if their

respective causes of complaint are

against the same party or parties and

involve substantially the same purposes,

subject or state of facts. The Assistant

General Counsel may separate or split

complaints if he or she finds that the

joinder of complaints, complainants, or

respondents will not be conducive to

the proper dispatch of the Department’s

business or the ends of justice.

(e) Service. A formal complaint, and

any amendments thereto, shall be

served by the person filing such

documents upon each party complained

of, upon the Deputy General Counsel,

and upon the Assistant General

Counsel.

§ 302.405 Responsive documents.

(a) Answers. Within fifteen (15) days

after the date of service of a formal

complaint, each respondent shall file an

answer in conformance with and subject

to the requirements of § 302.408(b).

Extensions of time for filing an answer

may be granted by the Assistant General

Counsel for good cause shown.

(b) Offers to satisfy. A respondent in

a formal complaint may offer to satisfy

the complaint through submission of

facts, offer of settlement or proposal of

adjustment. Such offer shall be in

writing and shall be served, within

fifteen (15) days after service of the

complaint, upon the same persons and

in the same manner as an answer. The

submittal of an offer to satisfy the

Federal Register / Vol. 65, No. 27 / Wednesday February 9, 2000 / Rules and Regulations 6477

complaint shall not excuse the filing of

an answer.

(c) Motions to dismiss. Motions to

dismiss a formal complaint shall not be

filed prior to the filing of a notice

instituting an enforcement proceeding

with respect to such complaint or a

portion thereof.

§ 302.406 Procedure for responding to

formal complaints.

(a) Within a reasonable time after an

answer to a formal complaint is filed,

the Assistant General Counsel shall

either:

(1) Issue a notice instituting a formal

enforcement proceeding in accordance

with § 302.407 or (2) Issue an order

dismissing the complaint in whole or in

part, stating the reasons for such

dismissal.

(b) An order dismissing a complaint

issued pursuant to paragraph (a)(2) of

this section shall become effective as a

final order of the Department thirty (30)

days after service thereof.

(c) Whenever the Assistant General

Counsel has failed to act on a formal

complaint within a reasonable time after

an answer is due, the following motions

may be addressed to the Deputy General

Counsel:

(1) By the complainant to institute an

enforcement proceeding by docketing

the complaint upon a showing that it is

in the public interest to do so; and

(2) By the respondent to dismiss the

complaint upon a showing that it is in

the public interest to do so.

(d) The Deputy General Counsel may

grant, deny, or defer any of the motions,

in whole or in part, and take appropriate

action to carry out his or her decision.

§ 302.407 Commencement of enforcement

proceeding.

(a) Whenever in the opinion of the

Assistant General Counsel there are

reasonable grounds to believe that any

economic regulatory provision of the

Statute, or any rule, regulation, order,

limitation, condition, or other

requirement established pursuant

thereto, has been or is being violated,

that efforts to satisfy a complaint as

provided by § 302.405 have failed, and

that the investigation of any or all of the

alleged violations is in the public

interest, the Assistant General Counsel

may issue a notice instituting an

enforcement proceeding before an

administrative law judge.

(b) The notice shall incorporate by

reference the formal complaint

submitted pursuant to § 302.404 or shall

be accompanied by a complaint by an

attorney from the Office of the Assistant

General Counsel. The notice and

accompanying complaint, if any, shall

be formally served upon each

respondent and each complainant.

(c) The proceedings thus instituted

shall be processed in regular course in

accordance with this part. However,

nothing in this part shall be construed

to limit the authority of the Department

to institute or conduct any investigation

or inquiry within its jurisdiction in any

other manner or according to any other

procedures that it may deem necessary

or proper.

(d) Whenever the Assistant General

Counsel seeks an assessment of civil

penalties in an enforcement proceeding,

he or she shall serve on all parties to the

proceeding a notice of the violations

alleged and the amount of penalties for

which the respondent may be liable.

The notice may be included in the

notice instituting a formal enforcement

proceeding or in a separate document.

(e) In any proceeding in which civil

penalties are sought, any decisions

issued by the Department shall state the

amount of any civil penalties assessed

upon a finding of violation, and the time

and manner in which payment shall be

made to the United States.

§ 302.408 Answers and replies.

(a) Within fifteen (15) days after the

date of service of a notice issued

pursuant to § 302.407, the respondent

shall file an answer to the complaint

attached thereto or incorporated therein

unless an answer has already been filed

in accordance with § 302.405. Any

requests for extension of time for filing

of an answer to such complaint shall be

filed in accordance with § 302.11.

(b) All answers shall be served in

accordance with § 302.7 and shall fully

and completely advise the parties and

the Department as to the nature of the

defense and shall admit or deny

specifically and in detail each allegation

of the complaint unless the respondent

is without knowledge, in which case,

his or her answer shall so state and the

statement shall operate as a denial.

Allegations of fact not denied or

controverted shall be deemed admitted.

Matters alleged as affirmative defenses

shall be separately stated and numbered

and shall, in the absence of a reply, be

deemed to be controverted. Any answer

to a complaint, or response to a notice,

proposing the assessment of civil

penalties shall specifically present any

matters that the respondent intends to

rely upon in opposition to, or in

mitigation of, such civil penalties.

(c) The DOT decisionmaker or the

administrative law judge may, in his or

her discretion, require or permit the

filing of a reply in appropriate cases;

otherwise, no reply may be filed.

§ 302.409 Default.

Failure of a respondent to file and

serve an answer within the time and in

the manner prescribed by § 302.408

shall be deemed to authorize the DOT

decisionmaker or administrative law

judge, as a matter of discretion, to find

the facts alleged in the complaint

incorporated in or accompanying the

notice instituting a formal enforcement

proceeding to be true and to enter such

orders as may be appropriate without

notice or hearing, or, as a matter of

discretion, to proceed to take proof,

without notice, of the allegations or

charges set forth in the complaint or

order; Provided, that the DOT

decisionmaker or administrative law

judge may permit late filing of an

answer for good cause shown.

§ 302.410 Consolidation of proceedings.

The DOT decisionmaker or Chief

Administrative Law Judge may, upon

his or her own initiative, or upon

motion of any party, consolidate for

hearing or for other purposes, or may

contemporaneously consider, two or

more enforcement proceedings that

involve substantially the same parties or

issues that are the same or closely

related, if he or she finds that such

consolidation or contemporaneous

hearing will be conducive to the

dispatch of business and to the ends of

justice and will not unduly delay the

proceedings.

§ 302.411 Motions to dismiss and for

summary judgment.

(a) At any time after an answer has

been filed, any party may file with the

DOT decisionmaker or the

administrative law judge a motion to

dismiss or a motion for summary

judgment, including supporting

affidavits. The procedure on such

motions shall be in accordance with the

Federal Rules of Civil Procedure (28

U.S.C.), particularly Rules 6(d), 7(b), 12,

and 56, except that answers and

supporting papers to a motion to

dismiss or for summary judgment shall

be filed within seven (7) days after

service of the motion.

(b) Parties may petition the DOT

decisionmaker to review any action by

the administrative law judge granting

summary judgment or dismissing an

enforcement proceeding under the

procedure established for review of an

initial decision in § 302.32.

§ 302.412 Admissions as to facts and

documents.

(a) At any time after an answer has

been filed, any party may file with the

DOT decisionmaker or administrative

law judge and serve upon the opposing

6478 Federal Register / Vol. 65, No. 27 / Wednesday February 9, 2000 / Rules and Regulations

side a written request for the admission

of the genuineness and authenticity of

any relevant documents described in

and exhibited with the request or for the

admission of the truth of any relevant

matters of fact stated in the request with

respect to such documents.

(b) Each of the matters of which an

admission is requested shall be deemed

admitted unless within a period

designated in the request, not less than

ten (10) days after service thereof, or

within such further time as the DOT

decisionmaker or the administrative law

judge may allow upon motion and

notice, the party to whom the request is

directed serves upon the requesting

party a sworn statement either denying

specifically the matters of which an

admission is requested or setting forth

in detail the reasons why he or she

cannot truthfully either admit or deny

such matters.

(c) Service of such request and

answering statement shall be made as

provided in § 302.7. Any admission

made by a party pursuant to such

request is only for the purposes of the

pending proceeding, or any proceeding

or action instituted for the enforcement

of any order entered therein, and shall

not constitute an admission by him or

her for any other purpose or be used

against him or her in any other

proceeding or action.

§ 302.413 Evidence of previous violations.

Evidence of previous violations by

any person or of any provision of the

Statute or any requirement thereunder

found by the Department or a court in

any other proceeding or criminal or civil

action may, if relevant and material, be

admitted in any enforcement proceeding

involving such person.

§ 302.414 Prehearing conference.

A prehearing conference may be held

in an enforcement proceeding whenever

the administrative law judge believes

that the fair and expeditious disposition

of the proceeding requires one. If a

prehearing conference is held, it shall be

conducted in accordance with § 302.22.

§ 302.415 Hearing.

After the issues have been formulated,

whether by the pleadings or otherwise,

the administrative law judge shall give

the parties reasonable written notice of

the time and place of the hearings.

Except as may be modified by the

provisions of this subpart, the

procedures in § 302.17 to § 302.38

governing the conduct of oral

evidentiary hearings will apply.

§ 302.416 Appearances by persons not

parties.

With consent of the administrative

law judge, appearances may be entered

without request for or grant of

permission to intervene by interested

persons who are not parties to the

proceeding. Such persons may, with the

consent of the administrative law judge,

cross-examine a particular witness or

suggest to any party or counsel therefor

questions or interrogations to be asked

witnesses called by any party, but may

not otherwise examine witnesses and

may not introduce evidence or

otherwise participate in the proceeding.

However, such persons may present to

both the administrative law judge and

the DOT decisionmaker an oral or

written statement of their position on

the issues involved in the proceeding.

§ 302.417 Settlement of proceedings.

(a) The Deputy General Counsel and

the respondent may agree to settle all or

some of the issues in an enforcement

proceeding at any time before a final

decision is issued by the DOT

decisionmaker. The Deputy General

Counsel shall serve a copy of any

proposed settlement on each party and

shall submit the proposed settlement to

the administrative law judge for

approval. The submission of a proposed

settlement shall not automatically delay

the proceeding.

(b) Any party to the proceeding may

submit written comments supporting or

opposing the proposed settlement

within ten (10) days from the date of

service.

(c) The administrative law judge shall

approve the proposed settlement, as

submitted, if it appears to be in the

public interest, or otherwise shall

disapprove it.

(d) Information relating to settlement

offers and negotiations will be withheld

from public disclosure if the Deputy

General Counsel determines that

disclosure would interfere with the

likelihood of settlement of an

enforcement proceeding.

§ 302.418 Motions for immediate

suspension of operating authority pendente

lite.

All motions for the suspension of the

economic operating authority of an air

carrier during the pendency of

proceedings to revoke such authority

shall be filed with, and decided by, the

DOT decisionmaker. Proceedings on the

motion shall be in accordance with

§ 302.11. In addition, the DOT

decisionmaker shall afford the parties

an opportunity for oral argument on

such motion.

§ 302.419 Modification or dissolution of

enforcement actions.

Whenever any party to a proceeding,

in which an order of the Department has

been issued pursuant to section 46101

of the Statute or an injunction or other

form of enforcement action has been

issued by a court of competent

jurisdiction pursuant to section 46106 of

the Statute, believes that changed

conditions of fact or law or the public

interest require that said order or

judicial action be modified or set aside,

in whole or in part, such party may file

with the Department a motion

requesting that the Department take

such administrative action or join in

applying to the appropriate court for

such judicial action, as the case may be.

The motion shall state the changes

desired and the changed circumstances

warranting such action, and shall

include the materials and argument in

support thereof. The motion shall be

served on each party to the proceeding

in which the enforcement action was

taken. Within thirty (30) days after the

service of such motion, any party so

served may file an answer thereto. The

Department shall dispose of the motion

by such procedure as it deems

appropriate.

§ 302.420 Saving Clause.

Repeal, revision or amendment of any

of the economic regulatory provisions of

the Statute or of the Department’s rules,

regulations, orders, or other

requirements shall not affect any

pending enforcement proceeding or any

enforcement proceeding initiated

thereafter with respect to causes arising

or acts committed prior to said repeal,

revision or amendment, unless the act of

repeal, revision or amendment

specifically so provides.

Subpart E—Rules Applicable to

Proceedings With Respect to Rates,

Fares and Charges for Foreign Air

Transportation

§ 302.501 Applicability.

This subpart sets forth the special

rules applicable to proceedings with

respect to rates, fares and charges in

foreign air transportation under Chapter

415 of the Statute. Except as modified

by this subpart, the provisions of

subpart A apply.

§ 302.502 Institution of proceedings.

A proceeding to determine the

lawfulness of rates, fares, or charges for

the foreign air transportation of persons

or property by aircraft, or the lawfulness

of any classification, rule, regulation, or

practice affecting such rates, fares or

charges, may be instituted by the filing

Federal Register / Vol. 65, No. 27 / Wednesday February 9, 2000 / Rules and Regulations 6479

of a petition or complaint by any

person, or by the issuance of an order

by the Department.

§ 302.503 Contents and service of petition

or complaint.

(a) If a petition or complaint is filed

it shall state the reasons why the rates,

fares, or charges, or the classification,

rule, regulation, or practice complained

of are unlawful and shall support such

reasons with a full factual analysis.

(b) A petition or complaint shall be

served by the petitioner or complainant

upon the air carrier against whose tariff

provision the petition or complaint is

filed.

(c) Answers to complaints, other than

those filed under § 302.506, shall be

filed within seven (7) working days after

the complaint is filed.

§ 302.504 Dismissal of petition or

complaint.

If the Department is of the opinion

that a petition or complaint does not

state facts that warrant an investigation

or action on its part, it may dismiss such

petition or complaint without hearing.

§ 302.505 Order of investigation.

The Department, on its own initiative,

or if it is of the opinion that the facts

stated in a petition or complaint warrant

it, may issue an order instituting an

investigation of the lawfulness of any

present or proposed rates, fares, or

charges for the foreign air transportation

of persons or property by aircraft or the

lawfulness of any classification, rule,

regulation, or practice affecting such

rates, fares, or charges, and may assign

the proceeding for hearing before an

administrative law judge. If a hearing is

held, except as modified by this subpart,

the provisions of § 302.17 through

§ 302.38 of this part shall apply.

§ 302.506 Complaints requesting

suspension of tariffs; answers to such

complaints.

(a) Formal complaints seeking

suspension of tariffs pursuant to section

41509 of the Statute shall fully identify

the tariff and include reference to:

(1) The issued or posting date,

(2) The effective date,

(3) The name of the publishing carrier

or agent,

(4) The Department number, and

(5) Specific items or particular

provisions protested or complained

against. The complaint should indicate

in what respect the tariff is considered

to be unlawful, and state what

complainant suggests by way of

substitution.

(b) A complaint requesting

suspension of a tariff ordinarily will not

be considered unless made in

conformity with this section and filed

no more than ten (10) days after the

issued date contained within such tariff.

(c) A complaint requesting

suspension, pursuant to section 41509

of the Statute, of an existing tariff for

foreign air transportation may be filed at

any time. However, such a complaint

must be accompanied by a statement

setting forth compelling reasons for not

having requested suspension within the

time limitations provided in paragraph

(b) of this section.

(d) In an emergency satisfactorily

shown by the complainant, and within

the time limits herein provided, a

complaint may be sent by facsimile,

telegram, or electronic mail (when

available) to the Department and to the

carrier against whose tariff provision the

complaint is made. Such complaint

shall state the grounds relied upon, and

must be confirmed in writing within

three (3) business days and filed and

served in accordance with this part.

(e) Answers to complaints shall be

filed within six (6) working days after

the complaint is filed.

§ 302.507 Computing time for filing

complaints.

In computing the time for filing

formal complaints pursuant to

§ 302.506, with respect to tariffs that do

not contain a posting date, the first day

preceding the effective date of the tariff

shall be the first day counted, and the

last day so counted shall be the last day

for filing unless such day is a Saturday,

Sunday, or legal holiday for the

Department, in which event the period

for filing shall be extended to the next

successive day that is not a Saturday,

Sunday, or holiday. The computation of

the time for filing complaints as to

tariffs containing a posting date shall be

governed by § 302.8.

Subpart F—Rules Applicable to

Proceedings Concerning Airport Fees

§ 302.601 Applicability.

(a) This subpart contains the specific

rules that apply to a complaint filed by

one or more air carriers or foreign air

carriers (‘‘carriers’’), pursuant to 49

U.S.C. 47129(a), for a determination of

the reasonableness of a fee increase or

a newly established fee for aeronautical

uses that is imposed upon the carrier by

the owner or operator of an airport. This

subpart also applies to requests by the

owner or operator of an airport for such

a determination. An airport owner or

operator is considered to have imposed

a fee on a carrier when it has taken all

steps necessary under its procedures to

establish the fee, whether or not the fee

is being collected or carriers are

currently required to pay it.

(b) This subpart does not apply to—

(1) A fee imposed pursuant to a

written agreement with a carrier using

the facilities of an airport;

(2) A fee imposed pursuant to a

financing agreement or covenant

entered into prior to August 23, 1994, or

(3) Any other existing fee not in

dispute as of August 23, 1994.

(c) Except as modified by this subpart,

the provisions of subpart A of this part

apply.

§ 302.602 Complaint by a carrier; request

for determination by an airport owner or

operator.

(a) Any carrier may file a complaint

with the Secretary for a determination

as to the reasonableness of any fee

imposed on the carrier by the owner or

operator of an airport. Any airport

owner or operator may also request such

a determination with respect to a fee it

has imposed on one or more carriers.

The complaint or request for

determination shall conform to the

requirements of this subpart and

§§ 302.3 and 302.4 concerning the form

and filing of documents.

(b) If a carrier has previously filed a

complaint with respect to the same

airport fee or fees, any complaint by

another carrier and any airport request

for determination shall be filed no later

than seven (7) calendar days following

the initial complaint. In addition, all

complaints or requests for

determination must be filed on or before

the sixtieth (60th) day after the carrier

receives written notice of the imposition

of the new fee or the imposition of the

increase in the fee.

(c) To ensure an orderly disposition of

the matter, all complaints and any

request for determination filed with

respect to the same airport fee or fees

will be considered in a consolidated

proceeding, as provided in § 302.606.

§ 302.603 Contents of complaint or

request for determination.

(a) The complaint or request for

determination shall set forth the entire

grounds for requesting a determination

of the reasonableness of the airport fee.

The complaint or request shall include

a copy of the airport owner or operator’s

written notice to the carrier of the

imposition of the fee, a statement of

position with a brief, and all supporting

testimony and exhibits on which the

filing party intends to rely. In lieu of

submitting duplicative exhibits or

testimony, the filing party may

incorporate by reference testimony and

exhibits already filed in the same

proceeding.

6480 Federal Register / Vol. 65, No. 27 / Wednesday February 9, 2000 / Rules and Regulations

(b) All exhibits and briefs prepared on

electronic spreadsheet or word

processing programs should be

accompanied by standard-format

computer diskettes containing those

submissions. The disk submission must

be in one of the following formats, in

the latest two versions, or in such other

format as may be specified by notice in

the Federal Register: Microsoft Word (or

RTF), Word Perfect, Ami Pro, Microsoft

Excel, Lotus 123, Quattro Pro, or ASCII

tab-delineated files. Parties should

submit three copies of each diskette to

Department of Transportation Dockets:

one copy for the docket, one copy for

the Office of Hearings, and one copy for

the Office of Aviation Analysis. Filers

should ensure that files on the diskettes

are unalterably locked.

(c) When a carrier files a complaint,

it must also certify:

(1) That it has served on the airport

owner or operator and all other carriers

serving the airport the complaint, brief,

and all supporting testimony and

exhibits, and that those parties have

received or will receive these

documents no later than the date the

complaint is filed. Such service shall be

by hand, by electronic transmission, or

by overnight express delivery. (Unless a

carrier has informed the complaining

carrier that a different person should be

served, service may be made on the

person responsible for communicating

with the airport on behalf of the carrier

about airport fees.);

(2) That the carrier has previously

attempted to resolve the dispute directly

with the airport owner or operator;

(3) That when there is information on

which the carrier intends to rely that is

not included with the brief, exhibits, or

testimony, the information has been

omitted because the airport owner or

operator has not made that information

available to the carrier. The certification

shall specify the date and form of the

carrier’s request for information from

the airport owner or operator; and

(4) That any submission on computer

diskette is a true copy of the data file

used to prepare the printed versions of

the exhibits or briefs.

(d) When an airport owner or operator

files a request for determination, it must

also certify:

(1) That it has served on all carriers

serving the airport the request, brief,

and all supporting testimony and

exhibits, and that those parties have

received or will receive these

documents no later than the date the

request is filed. Such service shall be in

the same manner as provided in

§ 302.603(c)(1).

(2) That the airport owner or operator

has previously attempted to resolve the

dispute directly with the carriers; and

(3) That any submission on computer

diskette is a true copy of the data file

used to prepare the printed versions of

the exhibits or briefs.

§ 302.604 Answers to a complaint or

request for determination.

(a)(1) When a carrier files a complaint

under this subpart, the owner or

operator of the airport and any other

carrier serving the airport may file an

answer to the complaint as provided in

paragraphs (b) and (c) of this section.

(2) When the owner or operator of an

airport files a request for determination

of the reasonableness of a fee it has

imposed, any carrier serving the airport

may file an answer to the request.

(b) The answer to a complaint or

request for determination shall set forth

the answering party’s entire response.

When one or more additional

complaints or a request for

determination has been filed pursuant

to § 302.602(b) with respect to the same

airport’s fee or fees, the answer shall set

forth the answering party’s entire

response to all complaints and any such

request for determination. The answer

shall include a statement of position

with a brief and any supporting

testimony and exhibits on which the

answering party intends to rely. In lieu

of submitting duplicative exhibits or

testimony, the answering party may

incorporate by reference testimony and

exhibits already filed in the same

proceeding.

(c) Answers to a complaint shall be

filed no later than fourteen (14) calendar

days after the filing date of the first

complaint with respect to the fee or fees

in dispute at a particular airport.

Answers to a request for determination

shall be filed no later than fourteen (14)

calendar days after the filing date of the

request.

(d) All exhibits and briefs prepared on

electronic spreadsheet or word

processing programs should be

accompanied by standard-format

computer diskettes containing those

submissions as provided in § 302.603(b).

(e) The answering party must also

certify that:

(1) it has served the answer, brief, and

all supporting testimony and exhibits by

hand, by electronic transmission, or by

overnight express delivery on the carrier

filing the complaint or the airport owner

or operator requesting the

determination, and that those parties

have received or will receive these

documents no later than the date the

answer is filed; and

(2) that any submission on computer

diskette is a true copy of the data file

used to prepare the printed versions of

the exhibits or briefs.

§ 302.605 Replies.

(a) The carrier submitting a complaint

may file a reply to any or all of the

answers to the complaint. The airport

owner or operator submitting a request

for determination may file a reply to any

or all of the answers to the request for

determination.

(b) The reply shall be limited to new

matters raised in the answers. It shall

constitute the replying party’s entire

response to the answers. It shall be in

the form of a reply brief and may

include supporting testimony and

exhibits responsive to new matters

raised in the answers. In lieu of

submitting duplicative exhibits or

testimony, the replying party may

incorporate by reference testimony and

exhibits already filed in the same

proceeding.

(c) The reply shall be filed no later

than two (2) calendar days after answers

are filed.

(d) All exhibits and briefs prepared on

electronic spreadsheet or word

processing programs should be

accompanied by standard-format

computer diskettes containing those

submissions as provided in § 302.603(b).

(e) The carrier or airport owner or

operator submitting the reply must

certify that it has served the reply and

all supporting testimony and exhibits on

the party or parties submitting the

answer to which the reply is directed,

and that those parties have received or

will receive these documents no later

than the date the reply is filed, and that

any submission on computer diskette is

a true copy of the data file used to

prepare the printed versions of the

exhibits or briefs.

§ 302.606 Review of complaints or

requests for determination.

(a) Within thirty (30) days after a

complaint or request for determination

is filed under this subpart, the Secretary

will determine whether the complaint

or request meets the procedural

requirements of this subpart and

whether a significant dispute exists, and

take appropriate action pursuant to

paragraph (b), (c), or (d) of this section.

When both a complaint and a request

for determination have been filed with

respect to the same airport fee or fees,

the Secretary will issue a determination

as to whether the complaint, the

request, or both meet the procedural

requirements of this subpart and

whether a significant dispute exists

Federal Register / Vol. 65, No. 27 / Wednesday February 9, 2000 / Rules and Regulations 6481

within thirty (30) days after the

complaint is filed.

(b) If the Secretary determines that a

significant dispute exists, he or she will

issue an instituting order assigning the

complaint or request for hearing before

an administrative law judge. The

instituting order will—

(1) Establish the scope of the issues to

be considered and the procedures to be

employed;

(2) Indicate the parties to participate

in the hearing;

(3) Consolidate into a single

proceeding all complaints and any

request for determination with respect

to the fee or fees in dispute; and

(4) Include any special provisions for

exchange or disclosure of information

by the parties.

(c) If the Secretary determines that the

complaint or request does not meet the

procedural requirements of this subpart,

the complaint or request for

determination will be dismissed

without prejudice to filing a new

complaint. The order of the Secretary

will set forth the terms and conditions

under which a revised complaint or

request may be filed.

(d) If the Secretary finds that no

significant dispute exists—

(1) If the proceeding was instituted by

a complaint, the Secretary will issue an

order dismissing the complaint, which

will contain a concise explanation of the

reasons for the determination that the

dispute is not significant.

(2) If the proceeding was instituted by

a request for determination, the

Secretary will either issue a final order

as provided in § 302.610 or set forth the

schedule for any additional procedures

required to complete the proceeding.

§ 302.607 Decision by administrative law

judge.

The administrative law judge shall

issue a decision recommending a

disposition of a complaint or request for

determination within sixty (60) days

after the date of the instituting order,

unless a shorter period is specified by

the Secretary.

§ 302.608 Petitions for discretionary

review.

(a) Within five (5) calendar days after

service of a decision by an

administrative law judge, any party may

file with the Secretary a petition for

discretionary review of the

administrative law judge’s decision.

(b) Petitions for discretionary review

shall comply with § 302.32(a). The

petitioner must also certify that it has

served the petition by hand, by

electronic transmission, or by overnight

express delivery on all parties to the

proceeding and that those parties have

received or will receive the petition no

later than the date it is filed.

(c) Any party may file an answer in

support of or in opposition to any

petition for discretionary review. The

answer shall be filed within four (4)

calendar days after service of the

petition for discretionary review. The

answer shall comply with the page

limits specified in § 302.32(b).

§ 302.609 Completion of proceedings.

(a) When a complaint or a request for

determination with respect to an airport

fee or fees has been filed under this

subpart and has not been dismissed, the

Secretary will issue a determination as

to whether the fee is reasonable within

120 days after the complaint or request

is filed.

(b) When both a complaint and a

request for determination have been

filed with respect to the same airport fee

or fees and have not been dismissed, the

Secretary will issue a determination as

to whether the fee is reasonable within

120 days after the complaint is filed.

§ 302.610 Final order.

(a) When a complaint or request for

determination stands submitted to the

Secretary for final decision on the

merits, he or she may dispose of the

issues presented by entering an

appropriate order, which will include a

statement of the reasons for his or her

findings and conclusions. Such an order

shall be deemed a final order of the

Secretary.

(b) The final order of the Secretary

shall include, where necessary,

directions regarding an appropriate

refund or credit of the fee increase or

newly established fee which is the

subject of the complaint or request for

determination.

(c) If the Secretary has not issued a

final order within 120 days after the

filing of a complaint by an air carrier or

foreign air carrier, the decision of the

administrative law judge shall be

deemed to be the final order of the

Secretary.

Subpart G—Rules Applicable to Mail

Rate Proceedings and Mail Contracts

§ 302.701 Applicability.

(a) This subpart sets forth the special

rules applicable to proceedings for the

establishment of mail rates by the

Department for foreign air

transportation and air transportation

between points in Alaska, and certain

contractual arrangements between the

U.S. Postal Service and certificated air

carriers for the carriage of mail in

foreign air transportation entered into

pursuant to 39 U.S.C. 5402(a), 84 Stat.

772.

(b) Such contracts must be for the

transportation of at least 750 pounds of

mail per flight, and no more than five

(5) percent, based on weight, of the

international mail transported under

any such contract may consist of letter

mail.

Final Mail Rate Proceedings

§ 302.702 Institution of proceedings.

(a) Proceedings for the determination

of rates of compensation for the

transportation of mail may be

commenced by the filing of a petition by

an air carrier whose rate is to be fixed,

or the U.S. Postal Service, or upon the

issuance of an order by the DOT

decisionmaker.

(b) The petition shall set forth the rate

or rates sought to be established, a

statement that they are believed to be

fair and reasonable, the reasons

supporting the request for a change in

rates, and a detailed economic

justification sufficient to establish the

reasonableness of the rate or rates

proposed.

(c) In any case where an air carrier is

operating under a final mail rate

uniformly applicable to an entire ratemaking unit as established by the DOT

decisionmaker, a petition must clearly

and unequivocally challenge the rate for

such entire rate-making unit and not

only a part of such unit.

(d) All petitions, amended petitions,

and documents relating thereto shall be

served upon the U.S. Postal Service by

sending a copy to the Assistant General

Counsel, Transportation Division,

Washington, DC 20260–1124, by

registered or certified mail, postpaid,

prior to the filing thereof with the

Department. Proof of service on the U.S.

Postal Service shall consist of a

statement in the document that the

person filing it has served a copy as

required by this section.

(e) Answers to petitions shall be filed

within twenty (20) days after service of

the petition.

§ 302.703 Order to show cause or

instituting a hearing.

Whether the proceeding is

commenced by the filing of a petition or

upon the Department’s own initiative,

the DOT decisionmaker may issue an

order directing the respondent to show

cause why it should not adopt such

findings and conclusions and such final

rates as may be specified in the order to

show cause, or may issue an order

setting the matter for hearing before an

administrative law judge.

6482 Federal Register / Vol. 65, No. 27 / Wednesday February 9, 2000 / Rules and Regulations

§ 302.704 Objections and answers to order

to show cause.

(a) Where an order to show cause is

issued, any person having objections to

the rates specified in such order shall

file with the DOT decisionmaker an

answer within forty-five (45) days after

the date of service of such order or

within such other period as the order

may specify.

(b) An answer to an order to show

cause shall contain specific objections,

and shall set forth the findings and

conclusions, the rates, and the

supporting exhibits that would be

substituted for the corresponding items

in the findings and conclusions of the

show cause order, if such objections

were found valid.

(c) An answer filed by a person who

is neither a party nor a person

ultimately permitted to intervene in an

oral evidentiary hearing if such

proceeding is established shall be

treated as a memorandum filed under

§ 302.706.

§ 302.705 Further procedures.

(a) If no answer is filed within the

designated time, or if a timely filed

answer raises no material issue of fact,

the DOT decisionmaker may, upon the

basis of the record in the proceeding,

enter a final order fixing the rate or

rates.

(b) If an answer raising a material

issue of fact is filed within the time

designated in the Department’s order,

the DOT decisionmaker may then issue

an order authorizing additional

pleadings and/or establishing further

procedural steps, including setting the

matter for oral evidentiary hearing

before an administrative law judge.

§ 302.706 Hearing.

(a) If a hearing is ordered under

§ 302.705, the issues at such hearing

shall be formulated in accordance with

the instituting order, except that at a

prehearing conference, the

administrative law judge may permit the

parties to raise such additional issues as

he or she deems necessary to make a full

determination of a fair and reasonable

rate.

(b)(1) The parties to the proceeding

shall be the air carrier or carriers for

whom rates are to be fixed, the U.S.

Postal Service, the Office of the

Assistant General Counsel for Aviation

Enforcement and Proceedings and any

other person whom the DOT

decisionmaker or administrative law

judge permits to intervene in

accordance with § 302.20.

(2) In addition to participation in

hearings in accordance with § 302.19,

persons other than parties may, within

the time fixed for filing an answer to an

order to show cause as provided in

§ 302.704, submit a memorandum of

opposition to, or in support of, the

position taken in the petition or order.

Such memorandum shall not be

received as evidence in the proceeding.

(c) All direct evidence shall be in

writing and shall be filed in exhibit

form within the times specified by the

DOT decisionmaker or by the

administrative law judge.

(d) Except as modified by this

subpart, the provisions of § 302.17

through § 302.38 of this part shall apply.

Provision for Temporary Rate

§ 302.707 Procedure for fixing temporary

mail rates.

At any time during the pendency of

a proceeding for the determination of

final mail rates, the DOT decisionmaker,

upon his or her own initiative, or on

petition by the air carrier whose rates

are in issue or by the U.S. Postal

Service, may fix temporary rates of

compensation for the transportation of

mail subject to downward or upward

adjustment upon the determination of

final mail rates.

Informal Mail Rate Conference

Procedure

§ 302.708 Invocation of procedure.

(a) Conferences between DOT

employees, representatives of air

carriers, the U.S. Postal Service and

other interested persons may be called

by DOT employees for the purpose of

considering and clarifying issues and

factual material in pending proceedings

for the establishment of rates for the

transportation of mail.

(b) At the commencement of an

informal mail rate conference pursuant

to this section, the authorized DOT

employees conducting such conference

shall issue to each person present at

such conference a written statement to

the effect that such conference is being

conducted pursuant to this section and

stating the time of commencement of

such conference; and at the termination

of such conference the DOT employees

conducting such conference shall note

in writing on such statement the time of

termination of such conference.

§ 302.709 Scope of conferences.

The mail rate conferences shall be

limited to the discussion of, and

possible agreement on, particular issues

and related factual material in

accordance with sound rate-making

principles. The duties and powers of

DOT employees in rate conferences

essentially will not be different,

therefore, from the duties and powers

they have in the processing of rate cases

not involving a rate conference. The

employees’ function in both instances is

to present clearly to the DOT

decisionmaker the issues and the related

material facts, together with

recommendations. The DOT

decisionmaker will make an

independent determination of the

soundness of the employees’s analyses

and recommendations.

§ 302.710 Participants in conferences.

The persons entitled to be present in

mail rate conferences will be the

representatives of the carrier whose

rates are in issue, the staff of the U.S.

Postal Service, and the authorized DOT

employees. No other person will attend

unless the DOT employees deem his or

her presence necessary in the interest of

one or more purposes to be

accomplished, and in such case his or

her participation will be limited to such

specific purposes. No person, however,

shall have the duty to attend merely by

reason of invitation by the authorized

DOT employees.

§ 302.711 Conditions upon participation.

(a) Nondisclosure of information. As a

condition to participation, every

participant, during the period of the

conference and for ninety (90) days after

its termination, or until the Department

takes public action with respect to the

facts and issues covered in the

conference, whichever is earlier:

(1) Shall, except for necessary

disclosures in the course of employment

in connection with conference business,

hold the information obtained in

conference in absolute confidence and

trust;

(2) Shall not deal, directly or

indirectly, for the account of himself or

herself, his or her immediate family,

members of his or her firm or company,

or as a trustee, in securities of the air

carrier involved in the rate conference

except that under exceptional

circumstances special permission may

be obtained in advance from the DOT

decisionmaker; and

(3) Shall adopt effective controls for

the confidential handling of such

information and shall instruct personnel

under his or her supervision, who by

reason of their employment come into

possession of information obtained at

the conference, that such information is

confidential and must not be disclosed

to anyone except to the extent

absolutely necessary in the course of

employment, and must not be misused.

(The term ‘‘information’’, as used in this

section, shall refer only to information

obtained at the conference regarding the

future course of action or position of the

Federal Register / Vol. 65, No. 27 / Wednesday February 9, 2000 / Rules and Regulations 6483

Department or its employees with

respect to the facts or issues discussed

at the conference.)

(b) Signed statement required. Every

representative of an air carrier actually

present at any conference shall sign a

statement that he or she has read this

entire instruction and promises to abide

by it and advise any other participant to

whom he or she discloses any

confidential information of the

restrictions imposed above. Every

representative of the U.S. Postal Service

actually present at any conference shall,

on his or her own behalf, sign a

statement to the same effect.

(c) Presumption of having conference

information. A director of any air carrier

that has had a representative at the

conference, who deals either directly or

indirectly for himself or herself, his or

her immediate family, members of his or

her firm or company, or as a trustee, in

securities of the air carrier involved in

the conference, during the restricted

period set forth above, shall be

presumed to have come into possession

of information obtained at the

conference knowing that such

information was subject to the

restrictions imposed above; but such

presumption can be rebutted.

(d) Compliance report required.

Within ten (10) days after the expiration

of the time specified for keeping

conference matters confidential, every

participant, as defined in paragraph (e)

of this section, shall file a verified

compliance report with Department of

Transportation Dockets stating that he

or she has complied in every respect

with the conditions of this section, or if

he or she has not so complied, stating

in detail in what respects he or she has

failed to comply.

(e) Persons subject to the provisions of

this section. For the purposes of this

section, participants shall include:

(1) Any representative of any air

carrier and any representative of the

U.S. Postal Service actually present at

the conference;

(2) The directors and the officers of

any air carrier that had a representative

at the conference;

(3) The members of any firm of

attorneys or consultants that had a

representative at the conference; and

(4) The members of the U.S. Postal

Service staff who come into possession

of information obtained at the

conference, knowing that such

information is subject to the restrictions

imposed in this section.

§ 302.712 Information to be requested

from an air carrier.

When an air carrier is requested to

submit detailed estimates as to traffic,

revenues and expenses by appropriate

periods and the investment that will be

required to perform the operations for a

future period, full and adequate support

shall be presented for all estimates,

particularly where such estimates

deviate materially from the air carrier’s

experience. With respect to the rate for

a past period, essentially the same

procedure shall be followed. Other

information or data likewise may be

requested by the DOT employees. All

data submitted by the air carrier shall be

certified by a responsible officer.

§ 302.713 DOT analysis of data for

submission of answers thereto.

After a careful analysis of these data,

the DOT employees will, in most cases,

send the air carrier a statement of

exceptions showing areas of differences.

Where practicable, the air carrier may

submit an answer to these exceptions.

Conferences will then be scheduled to

resolve the issues and facts in

accordance with sound ratemaking

principles.

§ 302.714 Availability of data to the U.S.

Postal Service.

The representatives of the U.S. Postal

Service shall have access to all

conference data and, insofar as

practicable, shall be furnished copies of

all pertinent data prepared by the DOT

employees and the air carrier, and a

reasonable time shall be allowed to

review the facts and issues and to make

any presentation deemed necessary;

Provided, That in cases other than those

involving an issue as to the service mail

rates payable by the U.S. Postal Service

pursuant to section 41901 of the Statute,

representatives of the U.S. Postal

Service shall be furnished with copies

of data under this provision only upon

their written request.

§ 302.715 Post-conference procedure.

No briefs, argument, or any formal

steps will be entertained by the DOT

decisionmaker after the rate

conferences. The form, content and time

of the staff’s presentation to the DOT

decisionmaker are entirely matters of

internal procedure. Any party to the

mail rate proceeding may, through an

authorized DOT employee, request the

opportunity to submit a written or oral

statement to the DOT decisionmaker on

any unresolved issue. The DOT

decisionmaker will grant such requests

whenever he or she deems such action

desirable in the interest of further

clarification and understanding of the

issues. The granting of an opportunity

for such further presentation shall not,

however, impair the rights that any

party might otherwise have under the

Statute and this part.

§ 302.716 Effect of conference

agreements.

No agreements or understandings

reached in rate conferences as to facts or

issues shall in any respect be binding on

the Department or any participant. Any

party to mail rate proceedings will have

the same rights to file an answer and

take other procedural steps as though no

rate conference had been held. The fact,

however, that a rate conference was

held and certain agreements or

understandings may have been reached

on certain facts and issues renders it

proper to provide that, upon the filing

of an answer by any party to the rate

proceeding, all issues going to the

establishment of a rate shall be open,

except insofar as limited in prehearing

conference in accordance with § 302.22.

§ 302.717 Waiver of participant conditions.

After the termination of a mail rate

conference hereunder, the air carrier

whose rates were in issue may petition

the DOT decisionmaker for a release

from the obligations imposed upon it

and all other persons by § 302.711. The

DOT decisionmaker will grant such

petition only after a detailed and

convincing showing is made in the

petition and supporting exhibits and

documents that there is no reasonable

possibility that any of the abuses sought

to be prevented will occur or that the

Department’s processes will in any way

be prejudiced. There will be no hearing

or oral argument on the petition and the

DOT decisionmaker will grant or deny

the request without being required to

assign reasons therefor.

Processing Contracts for the Carriage of

Mail in Foreign Air Transportation

§ 302.718 Filing.

Any air carrier that is a party to a

contract to which this subpart is

applicable shall file three (3) copies of

the contract in the Office of Aviation

Analysis, X–50, Department of

Transportation, Washington, DC 20590,

not later than ninety (90) days before the

effective date of the contract. A copy of

such contract shall be served upon the

persons specified in § 302.720 and the

certificate of service shall specify the

persons upon whom service has been

made. One copy of each contract filed

shall bear the certification of the

secretary or other duly authorized

officer of the filing air carrier to the

effect that such copy is a true and

complete copy of the original written

instrument executed by the parties.

6484 Federal Register / Vol. 65, No. 27 / Wednesday February 9, 2000 / Rules and Regulations

§ 302.719 Explanation and data supporting

the contract.

Each contract filed pursuant to this

subpart shall be accompanied by

economic data and such other

information in support of the contract

upon which the filing air carrier intends

that the Department rely, including, in

cases where pertinent, estimates of the

annual volume of contract mail (weight

and ton-miles) under the proposed

contract, the nature of such mail (letter

mail, parcel post, third class, etc.),

together with a statement as to the

extent to which this traffic is new or

diverted from existing classes of air and

surface mail services and the priority

assigned to this class of mail.

§ 302.720 Service.

A copy of each contract filed pursuant

to § 302.718, and a copy of all material

and data filed pursuant to § 302.719,

shall be served upon each of the

following persons:

(a) Each certificated and commuter (as

defined in § 298.2 of this chapter) air

carrier, other than the contracting

carrier, that is actually providing

scheduled mail services between any

pair of points between which mail is to

be transported pursuant to the contract;

and

(b) The Assistant General Counsel,

Transportation Division, U.S. Postal

Service, Washington, DC 20260–1124.

§ 302.721 Complaints.

Within fifteen (15) days of the filing

of a contract, any interested person may

file with the Office of Aviation Analysis,

X–50, Department of Transportation,

Washington, DC 20590, a complaint

with respect to the contract setting forth

the basis for such complaint and all

pertinent information in support of

same. A copy of the complaint shall be

served upon the air carrier filing the

contract and upon each of the persons

served with such contract pursuant to

§ 302.720.

§ 302.722 Answers to complaints.

Answers to the complaint may be

filed within ten (10) days of the filing

of the complaint, with service being

made as provided in § 302.720.

§ 302.723 Further procedures.

(a) In any case where a complaint is

filed, the DOT decisionmaker shall issue

an order dismissing the complaint,

disapproving the contract, or taking

such other action as may be appropriate.

Any such order shall be issued not later

than ten (10) days prior to the effective

date of the contract.

(b) In cases where no complaint is

filed, the DOT decisionmaker may issue

a letter of notification to all persons

upon whom the contract was served

indicating that the Department does not

intend to disapprove the contract.

(c) Unless the DOT decisionmaker

disapproves the contract not later than

ten (10) days prior to its effective date,

the contract automatically becomes

effective.

§ 302.724 Petitions for reconsideration.

Except in the case of a Department

determination to disapprove a contract,

no petitions for reconsideration of any

Department determination pursuant to

this subpart shall be entertained.

Appendix A to Part 302—Index to

Rules of Practice

Appendix A shows the subjects

covered by part 302 and the section

numbers used before and after the final

rule revising part 302, published in the

Federal Register on February 9, 2000

and became effective on March 10,

2000.

Subject Old rule New rule

ADMINISTRATIVE LAW JUDGES:

Actions after hearings .................................................................................................... § 302.27(b) ......................... § 302.31(a)

Actions during prehearing conference ........................................................................... § 302.23(a) ......................... § 302.22(b)

Arguments before .......................................................................................................... § 302.25 .............................. § 302.29

Briefs .............................................................................................................................. § 302.26 .............................. § 302.30

Licensing cases ...................................................................................................... § 302.1752 .......................... § 302.215

Certification for decision ................................................................................................ § 302.22(d) ......................... § 302.31(b)

Definition ........................................................................................................................ § 302.22(a) ......................... § 302.2

Delegation of authority ................................................................................................... § 302.27(a) ......................... § 307.17(a)(3)

Exceptions .............................................................................................................. § 302.27(a) ......................... § 307.17(a)(3)

Interlocutory matters ............................................................................................... § 302.27(a) ......................... § 307.17(a)(3)

Disqualification ............................................................................................................... § 302.22(b) ......................... § 302.17(b)

Exceptions ..................................................................................................................... § 302.24(e) ......................... § 302.24(i)

Licensing cases ...................................................................................................... § 302.1754 .......................... § 302.217

Hearings before ...................................................................................................... § 302.24 .............................. § 302.23

Initial decision (see Initial Decision) .......................................................................

Powers .................................................................................................................... § 302.22(c) .......................... § 302.17(a)

Prehearing conference report ................................................................................. § 302.23(b) ......................... § 302.22(c)

Recommended decision (see Recommended Decision) .......................................

Termination of authority .......................................................................................... § 302.22(c) .......................... § 307.17(a)(4)

ADMISSIONS:

Enforcement proceeding ................................................................................................ § 302.212 ............................ § 302.412

Limitation on use ........................................................................................................... § 302.212 ............................ § 302.412(c)

AIRPORT FEES:

Administrative law judge decision ................................................................................. § 302.615 ............................ § 302.607

Complaints by U.S. or foreign air carriers ..................................................................... § 302.603(a) ....................... § 302.602(a)

Answers .................................................................................................................. § 302.607 ............................ § 302.604

Additional complaints .............................................................................................. § 302.603(b) ....................... § 302.602(b)

Contents ................................................................................................................. § 302.605 ............................ § 302.603

Format of exhibits and briefs .................................................................................. § 302.605(b) ....................... § 302.603(b)

Service .................................................................................................................... § 302.605(c)(1) ................... § 302.603(c)(1)

Replies .................................................................................................................... § 302.609 ............................ § 302.605

Consolidation of proceedings ........................................................................................ § 302.603(c) ........................ § 302.602(c)

Dismissal ........................................................................................................................ §§ 302.611(c), (d) ............... §§ 302.606(c), (d)

Final order ...................................................................................................................... § 302.621 ............................ § 302.610

Timing ..................................................................................................................... § 302.619 ............................ § 302.609

Instituting order .............................................................................................................. § 302.611(b) ....................... § 302.606(b)

Petitions for discretionary review ................................................................................... § 302.617 ............................ § 302.608

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Answers .................................................................................................................. § 302.617(c) ........................ § 302.608(c)

Request for determination by airport owner/operator ................................................... § 302.603(a) ....................... § 302.602(a)

Answers .................................................................................................................. § 302.607 ............................ § 302.604

Contents ................................................................................................................. § 302.605 ............................ § 302.603

Format of exhibits and briefs .................................................................................. § 302.605(b) ....................... § 302.603(b)

Service .................................................................................................................... § 302.605(d)(1) ................... § 302.603(d)(1)

Replies .................................................................................................................... § 302.609 ............................ § 302.605

Review procedures ........................................................................................................ § 302.611 ............................ § 302.606

Significant dispute determination ................................................................................... § 302.611(b) ....................... § 302.606(b)

AMENDMENTS OF DOCUMENTS (see Documents)

ANSWERS (see also Replies):

Airport fees .................................................................................................................... § 302.607 ............................ § 302.604

Certificate applications:

Initial fitness ............................................................................................................ § 302.1730(c) ...................... § 302.204

International route awards

Conforming applications .................................................................................. § 302.1720(d) ..................... § 302.212(d)

Motions to modify scope ................................................................................. § 302.1720(e) ..................... § 302.212(d)

New authority .................................................................................................. § 302.1720(d) ..................... § 302.212(b)

Complaints

Air mail contracts .................................................................................................... § 302.1506 .......................... § 302.722

Airport fees ............................................................................................................. § 302.607 ............................ § 302.604

Enforcement matters .............................................................................................. § 302.204(b) ....................... § 302.405

Suspension of tariffs ............................................................................................... § 302.505 ............................ § 302.506

Consolidation of proceedings ........................................................................................ § 302.12(c) .......................... § 302.13(c)

Enforcement proceeding, notice instituting ................................................................... § 302.207 ............................ § 302.408

Exemption applications .................................................................................................. § 302.406 ............................ § 302.307

Foreign air carrier permit applications ........................................................................... § 302.1740(c) ...................... § 302.204

Generally ........................................................................................................................ § 302.6 ................................ § 302.6

Mail rate proceedings show cause orders .................................................................... § 302.305 ............................ § 302.704

Motions, generally .......................................................................................................... § 302.18(c) .......................... § 302.11(c)

Motions to consolidate ................................................................................................... § 302.12(c) .......................... § 302.13(c)

Motions to dismiss and for summary judgment ............................................................ § 302.212 ............................ § 302.411

Motions for modification/dissolution of enforcement proceedings ................................ § 302.218 ............................ § 302.419

Petitions for discretionary review ................................................................................... § 302.28(b) ......................... § 302.32(b)

Petitions for final mail rates ........................................................................................... § 302.303 ............................ § 302.702(e)

Petitions for intervention ................................................................................................ § 302.15(c)(3) ..................... § 302.20(c)(3)

Petitions for reconsideration .......................................................................................... § 302.37a ............................ § 302.14

Requests for determination of airport fees .................................................................... § 302.607 ............................ § 302.607

APPEALS:

Administrative Law Judge’s ruling ................................................................................. § 302.18(f) .......................... § 302.11(h)

Enforcement complaints ................................................................................................ § 302.206(b) ....................... § 302.406(c)

APPEARANCES:

Generally ........................................................................................................................ § 302.11 .............................. § 302.21

Application for admission to practice unnecessary ................................................ § 302.11(a) ......................... § 302.21(b)

Copy of transcript ................................................................................................... § 302.11(c) .......................... § 302.27(b)

Retention of counsel ............................................................................................... § 302.11(b) ......................... § 302.27(a)

Enforcement proceedings .............................................................................................. § 302.214 ............................ § 302.416

APPLICATIONS:

Admission to practice unnecessary ............................................................................... § 302.11(a) ......................... § 302.21(b)

Suspension from practicing before DOT ................................................................ § 302.11(a) ......................... § 302.21(c)

Amendment .................................................................................................................... § 302.5 ................................ § 302.5

Certificates for international route awards ..................................................................... §§ 302.1701–1713, 1720 .... §§ 302.201–206

Conforming applications ......................................................................................... § 302.1720(c) ...................... § 302.212(c)

Certificates involving initial fitness ................................................................................. §§ 302.1701–1713, 1730 .... §§ 302.201–206

Consolidation ................................................................................................................. § 302.12 .............................. § 302.13

Exemptions .................................................................................................................... §§ 302.401–405 .................. §§ 302.302–304

Exemptions, emergency ................................................................................................ §§ 302.410(b), (c) ............... § 302.311

Foreign Air Carrier Permits ............................................................................................ §§ 302.1701–1713, 1740 .... §§ 302.201–206

Licensing cases ............................................................................................................. §§ § 302.1701–1790 ........... § 302.201–206

ARGUMENT:

Before Administrative Law Judge .................................................................................. § 302.25 .............................. § 302.29

Oral (see Oral Arguments)

ATTENDANCE FEES AND MILEAGE ................................................................................. § 302.21 .............................. § 302.27(c)

BRIEFS:

Accompanying motions or answers ............................................................................... § 302.18(d) ......................... § 302.11(d)

Failure to restate objections .......................................................................................... § 302.31(b) ......................... § 302.35(b)

Filing time ...................................................................................................................... § 302.31(a) ......................... § 302.35(a)

Formal specifications ..................................................................................................... § 302.31(c) .......................... § 302.35(c)

Incorporation by reference ............................................................................................. § 302.31(b) ......................... § 302.35(c)(2)

Licensing cases ............................................................................................................. §§ 302.302.1752, 1755 ....... §§ 302.215, 218

To Administrative Law Judge ........................................................................................ § 302.26 .............................. § 302.30

Licensing cases ...................................................................................................... § 302.1752 .......................... § 302.215

To DOT decisionmaker .................................................................................................. § 302.31 .............................. § 302.35

Licensing cases ...................................................................................................... § 302.1755 .......................... § 302.218

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CERTIFICATE CASES FOR U.S. AIR CARRIERS:

Application:

Answers to .............................................................................................................. §§ 302.1720(d) 1730(d) ...... § 302.204(a)

Contents of ............................................................................................................. § 302.1704 .......................... § 302.202

Incomplete .............................................................................................................. § 302.1713 .......................... § 302.209

Replies to answers ................................................................................................. ............................................. § 302.204(b)

Service of ................................................................................................................ § 302.1705 .......................... § 302.203

Supporting evidence ............................................................................................... § 302.1710 .......................... §§ 302.202(a), 205

Verification .............................................................................................................. § 302.1707 .......................... § 302.206

Continuing Fitness ......................................................................................................... § 302.1730 .......................... § 302.211

Non-hearing procedures ................................................................................................ § 302.1712(a) ..................... § 302.207

Generally ........................................................................................................................ §§ 302.1701–1790 ............. §§ 302.201–220

Initial Fitness .................................................................................................................. § 302.1730 .......................... § 302.211

International Route Awards ........................................................................................... § 302.1720 .......................... § 302.212

Oral evidentiary hearing proceedings ............................................................................ §§ 302.1751–1757 .............. §§ 302.214–220

Petition for .............................................................................................................. § 302.1712(b) ..................... § 302.208

CERTIFICATION:

Documents ..................................................................................................................... § 302.4(b) ........................... § 302.4(b)

Record ........................................................................................................................... §§ 302.22(d), 27, 29 ........... § 302.31(b)

CHARGES (see Rates, Fairs, and Charges; Airport Fees)

CITATION OF RULES .......................................................................................................... § 302.2 ................................ § 302.1(c)

CIVIL PENALTIES ................................................................................................................ § 302.206(a) ....................... §§ 302.407(d), (e)

COMPLAINANTS, JOINDER ................................................................................................ § 302.13 .............................. § 302.404(d)

COMPLAINTS:

Airport fees .................................................................................................................... §§ 302.603–605 .................. §§ 302.602–603

Contracts for transportation of mail ............................................................................... §§ 302.1505–1507 .............. § 302.721

Enforcement proceedings .............................................................................................. §§ 302.200–204 .................. §§ 302.403–404

Joinder ........................................................................................................................... § 302.13 .............................. § 302.404(d)

Rates, fares, and charges ............................................................................................. §§ 302.501–508 .................. §§ 302.501–507

Suspension of tariffs ...................................................................................................... §§ 302.505–508 .................. § 302.506

COMPUTATION OF TIME (see also Time) ......................................................................... § 302.16 .............................. § 302.8

CONSOLIDATION OF PROCEEDINGS ....................................................................... § 302.12 .............................. § 302.13

Airport fees .................................................................................................................... § 302.603(c) ........................ § 302.602(c)

Answer to motion for ..................................................................................................... § 302.12(c) .......................... § 302.13(c)

Enforcement proceedings .............................................................................................. § 302.210(a) ....................... § 302.410

Filing time ...................................................................................................................... § 302.12(b) ......................... § 302.13(b)

Initiation of ..................................................................................................................... § 302.12(a) ......................... § 302.13(a)

CONTINUING FITNESS CERTIFICATE CASES ................................................................. § 302.1701–1713 ................ § 302.212

CONTRACTS (see Mail Contracts)

DECISIONS:

Final ............................................................................................................................... § 302.36 .............................. §§ 302.38, 220

Initial (see Administrative Law Judges)

Recommended (see Administrative Law Judges)

Tentative ........................................................................................................................ § 302.29 .............................. § 302.33

Exceptions to .......................................................................................................... § 302.30 .............................. § 302.34

DEFINITIONS ....................................................................................................................... NA ...................................... §§ 302.2, 402

DELEGATION OF AUTHORITY ........................................................................................... § 302.27 .............................. §§ 302.17(a), 18(a)

DEPOSITIONS:

Application by party for .................................................................................................. § 302.20(b) ......................... § 302.26(b)

Criteria for order to issue ............................................................................................... § 302.20(a) ......................... § 302.26(a)

Evidential status ............................................................................................................. §§ 302.20(h) ....................... § 302.26(h)

Objections to questions or evidence ............................................................................. § 302.2(d) ........................... § 302.26(d)

Specifications ................................................................................................................. § 302.20(g) ......................... § 302.26(g)

Subscription by witness ................................................................................................. § 302.20(e) ......................... § 302.26(e)

Written interrogatories ................................................................................................... § 302.20(f) .......................... § 302.26(f)

DISCRETIONARY REVIEW:

Initial and Recommended decisions .............................................................................. § 302.28 .............................. § 302.32

Answers in opposition or support ........................................................................... § 302.28(b) ......................... § 302.32(b)

Formal requirements .............................................................................................. § 302.28(a)(3) ..................... §§ 302.32(a)(3), (4)

Grounds for ............................................................................................................. § 302.28(a)(2) ..................... § 302.32(a)(2)

Orders declining review .......................................................................................... § 302.28(c) .......................... § 302.32(c)

Oral arguments ....................................................................................................... § 302.28(a)(5) ..................... § 302.32(a)(5)

Petitions for ............................................................................................................. § 302.28(a)(1) ..................... § 302.32(a)(1)

Review proceedings ............................................................................................... § 302.28(d) ......................... § 302.32(d)

DISSOLUTION OF ENFORCEMENT ACTION .................................................................... § 302.218 ............................ § 302.419

DOCUMENTS:

Amendments .................................................................................................................. § 302.5 ................................ § 302.5

Leave of Department .............................................................................................. § 302.5 ................................ § 302.5(a)

Timing of ................................................................................................................. § 302.5 ................................ § 302.5(b)

Answers (see Answers)

Briefs (see Briefs)

Dismissal ........................................................................................................................ § 302.5 ................................ § 302.3(d)

Electronic filing ............................................................................................................... NA ...................................... § 302.3(c)

Exhibits .......................................................................................................................... §§ 302.24(g) ....................... § 302.24(c)

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Filing .............................................................................................................................. § 302.3 ................................ § 302.3

Address ................................................................................................................... § 302.3(a) ........................... § 302.3(a)

Date ........................................................................................................................ § 302.3(a) ........................... § 302.3(a)

Improper filing ......................................................................................................... § 302.4e .............................. § 302.3(d)

Formal specifications ..................................................................................................... § 302.3(b) ........................... § 302.3(b)

General requirements .................................................................................................... § 302.4 ................................ § 302.4

Contents ................................................................................................................. § 302.4(a) ........................... § 302.4(a)(2)

Designation of person to receive service ............................................................... § 302.4(c) ............................ § 302.4(a)

Subscription ............................................................................................................ § 302.4(b) ........................... § 302.4(b)

Memoranda of opposition or support ............................................................................ § 302.6(c) ............................ § 302.706(b)(2)

Number of copies .......................................................................................................... § 302.3(c) ............................ § 302.3(c)

Objections to public disclosure ...................................................................................... § 302.39(b) ......................... § 302.12

Official Notice of facts .................................................................................................... § 302.24(n) ......................... § 302.24(g)

Partial relevance of ........................................................................................................ § 302.24(I) .......................... § 302.24(e)

Presented at oral argument ........................................................................................... § 302.32(b) ......................... § 302.36(b)

Receipt after hearing ..................................................................................................... § 302.24(k) .......................... § 302.24(h)

Responsive .................................................................................................................... § 302.6 ................................ § 302.6

Retention ........................................................................................................................ § 302.7 ................................ § 302.3(f)

Service (see Service)

Table of contents/Index ................................................................................................. § 302.3(d) ........................... § 302.4(a)(3)

Unauthorized .................................................................................................................. § 302.4(f) ............................ § 302.6(c)

DOT DECISIONMAKER:

Briefs to .......................................................................................................................... § 302.31 .............................. § 302.35

Licensing cases ...................................................................................................... § 302.1755 .......................... § 302.218

Certification of record to ................................................................................................ § 302.22(d) ......................... § 302.31(b)

Definition ........................................................................................................................ § 302.22a ............................ §§ 302.2, 18

Final decision ................................................................................................................. § 302.36 .............................. § 302.38

Licensing cases ...................................................................................................... § 302.1757 .......................... § 302.220

Oral argument ................................................................................................................ § 302.32 .............................. § 302.36

Licensing cases ...................................................................................................... § 302.1756 .......................... § 302.219

Petitions for reconsideration .......................................................................................... § 302.37 .............................. § 302.14

Review of Administrative Law Judge decision .............................................................. § 302.38 .............................. § 302.32

Tentative decision .......................................................................................................... § 302.29 .............................. § 302.33

Exceptions .............................................................................................................. § 302.30 .............................. § 302.34

ENFORCEMENT PROCEEDINGS:

Admissions as to facts and documents ......................................................................... § 302.212 ............................ § 302.412

Complaints:

Formal ..................................................................................................................... § 302.201 ............................ § 302.404

Informal ................................................................................................................... § 302.200 ............................ § 302.403

Insufficiency of ........................................................................................................ § 302.203 ............................ § 302.404(c)

Consolidation of proceedings ........................................................................................ § 302.210a .......................... § 302.410

Evidence of previous violations ..................................................................................... § 302.216 ............................ § 302.413

Generally ........................................................................................................................ §§ 302.200–217 .................. §§ 302.401–420

Hearings ......................................................................................................................... § 302.213 ............................ § 302.415

Modification or dissolution of enforcement action ......................................................... § 302.218 ............................ § 302.419

Motions to dismiss ......................................................................................................... § 302.212 ............................ § 302.411

Motions for summary judgment ..................................................................................... § 302.212 ............................ § 302.402

Settlement proceedings ................................................................................................. § 302.215 ............................ § 302.417

EVIDENCE:

Exhibits .......................................................................................................................... §§ 302.24(g), (h) ................. §§ 302.24(c), (d)

Generally ........................................................................................................................ § 302.24(c) .......................... § 302.24(a)

Objections to .................................................................................................................. § 302.24(d) ......................... § 302.24(b)

Offers of proof ................................................................................................................ § 302.24(f) .......................... § 302.24(j)

Official notice of facts in certain documents ................................................................. § 302.24(n) ......................... § 302.24(g)

Partial relevance of ........................................................................................................ § 302.24(I) .......................... § 302.24(e)

Previous violations ......................................................................................................... § 302.216 ............................ § 302.413

Records in other proceedings ....................................................................................... § 302.24(j) ........................... § 302.24(f)

EXAMINERS (see Administrative Law Judges)

EXCEPTIONS:

Administrative Law Judge’s rulings ............................................................................... § 302.24(e) ......................... § 302.24(i)

Initial decisions .............................................................................................................. § 302.30 .............................. § 302.31(c)

Licensing cases ............................................................................................................. § 302.1754 .......................... § 302.217

Recommended decisions .............................................................................................. § 302.30 .............................. § 302.31(c)

Request for oral argument ............................................................................................. § 302.32 .............................. § 302.36

Tentative decisions ........................................................................................................ § 302.30 .............................. § 302.34

Waiver ............................................................................................................................ § 302.33 .............................. § 302.37

EXEMPTION PROCEEDINGS:

Application:

Answers to .............................................................................................................. § 302.406 ............................ § 302.307

Contents of ............................................................................................................. § 302.402 ............................ § 302.303

Filing of ................................................................................................................... § 302.401 ............................ § 302.302

Incomplete .............................................................................................................. § 302.405 ............................ § 302.306

Posting of ................................................................................................................ § 302.404 ............................ § 302.305

Service of ................................................................................................................ § 302.403 ............................ § 302.304

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Reply to answer ...................................................................................................... § 302.407 ............................ § 302.308

Supporting evidence ............................................................................................... § 302.402(c) ........................ § 302.302(c)

DOT’s initiative ............................................................................................................... § 302.409 ............................ § 302.310

Emergencies .................................................................................................................. § 302.410 ............................ § 302.311

Cabotage ................................................................................................................ § 302.402(d) ....................... § 302.303(d)

Hearing request ............................................................................................................. § 302.408 ............................ § 302.309

EXHIBITS (see also Evidence):

Generally ........................................................................................................................ § 302.24(g) ......................... §§ 302.24(c), (d)

FARES (see Rates, Fares, and Charges)

FEE (see Airport Fees)

FINAL MAIL RATE PROCEEDINGS (see Mail Rate Proceedings)

FINAL ORDERS (see Orders)

FITNESS CASES (see Certificate Cases)

FOREIGN AIR CARRIER PERMIT CASES:

Application:

Answers to .............................................................................................................. § 302.1740(c) ...................... § 302.204(a)

Contents of ............................................................................................................. § 302.1704 .......................... § 302.202

Incomplete .............................................................................................................. § 302.1713 .......................... § 302.209

Replies to answers ................................................................................................. ............................................. § 302.204(b)

Service of ................................................................................................................ § 302.1705 .......................... § 302.203

Supporting evidence ............................................................................................... § 302.1710 .......................... §§ 302.202(a), 205

Verification .............................................................................................................. § 302.1707 .......................... § 302.206

Non-hearing procedures ................................................................................................ § 302.1712(a) ..................... § 302.207

Generally ........................................................................................................................ §§ 302.1701–1713, 1740–

1790.

§§ 302.201–220

Oral evidentiary hearing proceedings ............................................................................ § 302.1751–1757 ................ §§ 302.214–220

Petition for .............................................................................................................. § 302.1712(b) ..................... § 302.208

HEARINGS:

Airport fee dispute proceedings ..................................................................................... § 302.611(b) ....................... § 302.606(b)

Argument before Administrative Law Judge ................................................................. § 302.25 .............................. § 302.29

Change in rates, fares, or charges ................................................................................ § 302.506 ............................ § 302.706

Consolidated (see Consolidation of Proceedings)

Documents of partial relevance ..................................................................................... § 302.24(i) ........................... § 302.24(e)

Enforcement proceedings .............................................................................................. § 302.213 ............................ § 302.415

Evidence (see Evidence)

Expedition of .................................................................................................................. § 302.14(a) ......................... § 302.11(e)

Generally ........................................................................................................................ § 302.24 .............................. § 302.23

Intervention .................................................................................................................... § 302.15 .............................. § 302.20

Licensing cases ............................................................................................................. § 302.1751 .......................... § 302.214

Notice ............................................................................................................................. § 302.24(b) ......................... § 302.23

Offers of proof ................................................................................................................ § 302.24(f) .......................... § 302.24(j)

Official notice of facts in certain documents ................................................................. § 302.24(n) ......................... § 302.24(g)

Participation by non parties ........................................................................................... § 302.14(b) ......................... § 302.19

Receipt of documents after hearing .............................................................................. § 302.24(k) .......................... § 302.24(h)

Records in other proceedings ....................................................................................... § 302.24(j) ........................... § 302.24(f)

Request for, on application for exemption .................................................................... § 302.408 ............................ § 302.309

Shortened procedure ..................................................................................................... § 302.35 .............................. § 302.15

Transcripts ..................................................................................................................... §§ 302.24(l), (m) ................. § 302.28

INITIAL DECISION:

Answer in support or opposition .................................................................................... § 302.28(b) ......................... § 302.32(b)

Contents ......................................................................................................................... § 302.27(b) ......................... § 302.31(c)

Effect of .......................................................................................................................... § 302.27(c) .......................... § 302.31(d)

Licensing cases ............................................................................................................. § 302.1753 .......................... § 302.216

Exceptions to .......................................................................................................... § 302.1754 .......................... § 302.217

Oral arguments .............................................................................................................. § 302.28(a)(5) ..................... § 302.32(a)(5)

Orders declining review ................................................................................................. § 302.28(c) .......................... § 302.32(c)

Petitions for discretionary review ................................................................................... § 302.28 .............................. § 302.32

Service ........................................................................................................................... § 302.27(b) ......................... § 302.31(c)

Scope ............................................................................................................................. § 302.27(a) ......................... § 302.31(a)(1)

INITIAL FITNESS CERTIFICATE CASES (see Certificate Cases)

INSTITUTING ORDERS (see Orders)

INTERROGATORIES (see Depositions)

INTERVENTION:

Generally ........................................................................................................................ § 302.15 .............................. § 302.20

JOINDER OF COMPLAINTS OR COMPLAINANTS ........................................................... § 302.13 .............................. § 302.404(d)

JOINT PLEADINGS:

Enforcement cases ........................................................................................................ § 302.13 .............................. § 302.404(d)

Licensing cases ............................................................................................................. § 302.1708 .......................... § 302.204(c)

LAW JUDGE (see Administrative Law Judges)

LICENSING CASES (see Certificate Cases; Foreign Air Carrier Permit Cases

MAIL CONTRACTS:

Complaint against contract ............................................................................................ §§ 302.1505–1507 .............. §§ 302.721–723

Data supporting contract ............................................................................................... § 302.1503 .......................... § 302.719

Explanation of contract .................................................................................................. § 302.1503 .......................... § 302.719

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Filing of contract ............................................................................................................ § 302.1502 .......................... § 302.718

Petition for reconsideration ............................................................................................ § 302.1508 .......................... § 302.724

Service of contract ......................................................................................................... § 302.1504 .......................... § 302.720

MAIL RATE CONFERENCES:

Availability of data to Postal Service ............................................................................. § 302.317 ............................ § 302.714

Conditions upon participation ........................................................................................ § 302.314 ............................ § 302.711

Compliance report .................................................................................................. § 302.314(d) ....................... § 302.711(d)

Non-disclosure of information ................................................................................. § 302.314(a) ....................... § 302.711(a)

Signed statement required ..................................................................................... § 302.314(b) ....................... § 302.711(b)

DOT analysis of data for submission of answers ......................................................... § 302.316 ............................ § 302.713

Effect of conference agreements .................................................................................. § 302.319 ............................ § 302.716

Information to be requested from carrier ....................................................................... § 302.315 ............................ § 302.712

Participants in conferences ........................................................................................... § 302.313 ............................ § 302.710

Post conference procedure ........................................................................................... § 302.318 ............................ § 302.715

Scope of conferences .................................................................................................... § 302.312 ............................ § 302.709

Time of commencing and terminating conference ........................................................ § 302.321 ............................ § 302.708(b)

Waiver of participant conditions .................................................................................... § 302.320 ............................ § 302.717

MAIL RATE PROCEEDINGS:

Evidence ........................................................................................................................ § 302.308 ............................ § 302.706(c)

Further procedures ........................................................................................................ § 302.306, 307 .................... § 302.705

Hearing .......................................................................................................................... § 302.309 ............................ § 302.706

Institution of proceedings ............................................................................................... § 302.302 ............................ § 302.702

Objections and answers to show cause order .............................................................. § 302.305 ............................ § 302.704

Order to show cause ..................................................................................................... § 302.303 ............................ § 302.703

Parties and persons other than parties ......................................................................... § 302.301, 302 .................... § 302.706(b)

MILEAGE FEES .................................................................................................................... § 302.21 .............................. § 302.27(c)

MODIFICATION OF ENFORCEMENT ACTION .................................................................. § 302.218 ............................ § 302.419

MOTIONS (see also Petitions):

Answers to ..................................................................................................................... § 302.18(c) .......................... § 302.11(c)

Appeals from rulings of Administrative Law Judges ..................................................... § 302.18(f) .......................... § 302.11(h)

Briefs .............................................................................................................................. § 302.18(d) ......................... § 302.11(d)

Consolidation of proceedings ........................................................................................ § 302.12 .............................. § 302.13

Enforcement cases ................................................................................................. § 302.210a .......................... § 302.410

Continuances and extension of time ............................................................................. § 302.17 .............................. § 302.9

Disposition of ................................................................................................................. § 302.18(e) ......................... § 302.11(g)

Effect of pendency ......................................................................................................... § 302.18(g) ......................... § 302.11(f)

Expedition of case ......................................................................................................... § 302.14(a) ......................... § 302.11(e)

For suspension of operating authority pendente lite ..................................................... § 302.217 ............................ § 302.418

For modification or dissolution of orders ....................................................................... § 302.218 ............................ § 302.419

Form and contents ......................................................................................................... § 302.18(b) ......................... § 302.11(b)

Generally ........................................................................................................................ § 302.18 .............................. § 302.11(a)

Oral arguments .............................................................................................................. § 302.18(d) ......................... § 302.11(d)

Substitution of parties .................................................................................................... § 302.10 .............................. § 302.10(b)

To correct transcripts ..................................................................................................... § 302.24(m) ........................ § 302.28(f)

To dismiss and for summary judgment ......................................................................... § 302.212 ............................ § 302.411

To dismiss formal complaint .......................................................................................... § 302.204 ............................ § 302.405(c)

To file unauthorized documents .................................................................................... § 302.4(f) ............................ § 302.6(c)

To modify scope in Licensing cases ............................................................................. § 302.1720(c) ...................... § 302.212(b)

To quash or modify subpoena ....................................................................................... § 302.19(f) .......................... § 302.25(f)

To whom motions addressed ........................................................................................ § 302.18(a) ......................... § 302.11(a)

To withhold information from public disclosure ............................................................. §§ 302.39(b), (e), (f) ........... §§ 302.12(d), (e)

NON-HEARING PROCEDURES .......................................................................................... § 302.35 .............................. § 302.15

Licensing cases ...................................................................................................... § 302.1712(a) ..................... § 302.207

OBJECTIONS (see also Answers):

To Public Disclosure of Information .............................................................................. § 302.39 .............................. § 302.12

OFFERS OF PROOF ........................................................................................................... § 302.24(f) .......................... § 302.24(j)

OFFICIAL NOTICE ............................................................................................................... § 302.24(n) ......................... § 302.24(g)

ORAL ARGUMENTS:

Before DOT decisionmakers ......................................................................................... § 302.32 .............................. § 302.36

Request for leave ................................................................................................... § 302.32(a) ......................... § 302.36(a)

Rules on documentary evidence ............................................................................ § 302.32(b) ......................... § 302.36(b)

Before Administrative Law Judges ................................................................................ § 302.25 .............................. § 302.29

Discretionary review ...................................................................................................... § 302.28(a)(5) ..................... § 302.32(a)(5)

Licensing cases ............................................................................................................. § 302.1756 .......................... § 302.219

Waivers .......................................................................................................................... § 302.33 .............................. § 302.37

ORAL EVIDENTIARY HEARINGS (see Hearings)

ORDERS:

Declining review of initial decisions ............................................................................... § 302.28(c) .......................... § 302.32(c)

Dismissal:

Airport fee dispute proceedings ............................................................................. §§ 302.611(c), (d) ............... §§ 302.606(c), (d)

Enforcement complaints ......................................................................................... § 302.205 ............................ § 302.406

Licensing cases ...................................................................................................... § 302.1750(a)(2) ................. § 302.210(a)(3)

Establishing further procedures (Licensing cases) ....................................................... § 302.1750 .......................... § 302.210

Final ............................................................................................................................... § 302.36 .............................. § 302.38

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Airport fee dispute proceedings ............................................................................. § 302.621 ............................ § 302.610

Licensing cases ...................................................................................................... § 302.1750 .......................... § 302.210

Mail contracts ......................................................................................................... § 302.1507(a) ..................... § 302.723(a)

Mail rate proceedings ............................................................................................. § 302.306 ............................ § 302.705

Instituting oral evidentiary hearing:

Airport fee dispute proceedings ............................................................................. § 302.611(b) ....................... § 302.606(b)

Licensing cases ...................................................................................................... § 302.1750(a)(1) ................. § 302.210(a)(4)

Mail rate proceedings ............................................................................................. §§ 302.307, 309 .................. §§ 302.703, 705(b)

Instituting investigation of rates, fares, and charges ..................................................... § 302.504 ............................ § 302.505

Show cause:

Licensing cases ...................................................................................................... § 302.1730(d) ..................... § 302.210(a)(1)

Mail rate proceedings ............................................................................................. § 302.304 ............................ § 302.703

PARTIES:

Appearances of .............................................................................................................. § 302.11 .............................. § 302.21(a)

Defined ........................................................................................................................... § 302.9 ................................ § 302.2, 10(a)

Enforcement proceedings .............................................................................................. § 302.210 ............................ § 302.402

Licensing cases ............................................................................................................. § 302.1709 .......................... § 302.210(a)(4)

Mail rate proceedings .................................................................................................... § 302.301 ............................ § 302.706(b)

Participation by Air Carrier Associations ....................................................................... § 302.10(a) ......................... § 302.10(c)

Persons other than parties ............................................................................................ § 302.14 .............................. § 302.19

Substitution of ................................................................................................................ § 302.10 .............................. § 302.10(b)

PETITIONS:

Determination of rates, fares, or charges ...................................................................... § 302.502(a) ....................... § 302.502–503

Discretionary review (see Discretionary Review)

Filing Time ..................................................................................................................... § 302.37(a) ......................... § 302.14(a)

Institution of mail rate proceedings ............................................................................... § 302.303 ............................ § 302.302

Intervention .................................................................................................................... § 302.15(c) .......................... § 302.20

Orders subject to reconsideration ................................................................................. § 302.37(a) ......................... § 302.14(a)

Repetitive ....................................................................................................................... § 302.37(c) .......................... § 302.14(c)

Reconsideration ............................................................................................................. § 302.37 .............................. § 302.14

Rulemaking .................................................................................................................... § 302.38 .............................. § 302.16

PREHEARING CONFERENCE ............................................................................................ § 302.23 .............................. § 302.22

Actions during ................................................................................................................ § 302.23(a) ......................... § 302.22(b)

Enforcement proceeding ................................................................................................ § 302.211 ............................ § 302.414

Purposed § 302.23(a) .................................................................................................... § 302.23(a) ......................... § 302.22(a)

Report of ........................................................................................................................ § 302.23(b) ......................... § 302.22(c)

Scope ............................................................................................................................. § 302.23(a) ......................... § 302.22(a)

PROCEEEDINGS:

Airport fee dispute proceedings ..................................................................................... §§ 302.601–621 .................. §§ 302.601–610

Consolidation of (see Consolidation)

Contemporaneous consideration (see Consolidation)

Enforcement ................................................................................................................... §§ 302.200–217 .................. § 302.401–420

Exemption ...................................................................................................................... §§ 302.400–410 .................. § 302.301–311

Licensing cases ............................................................................................................. §§ 302.1701–1790 .............. § 302.201–220

Mail rate ......................................................................................................................... §§ 302.300–321 .................. § 302.701–717

Rates, fares, and charges ............................................................................................. §§ 302.500–508 .................. § 302.501–507

PUBLIC DISCLOSURE OF INFORMATION:

Documents ..................................................................................................................... § 302.39(b) ......................... § 302.12(b)

Generally ........................................................................................................................ § 302.39(a) ......................... § 302.12(a)

Objection to by government .......................................................................................... § 302.39(d) ......................... § 302.12(f)

Oral testimony ................................................................................................................ § 302.39(c) .......................... § 302.12(c)

RATES, FARES, AND CHARGES—PROCEEDINGS (see also Mail Rate Proceedings;

Airport Fees):

Institution of ................................................................................................................... § 302.501 ............................ § 302.502

Order of investigation .................................................................................................... § 302.504 ............................ § 302.505

Petition ........................................................................................................................... § 302.501 ............................ § 302.503

Contents ................................................................................................................. § 302.502(a) ....................... § 302.503(a)

Dismissed ............................................................................................................... § § 302.503 ......................... § 302.504

Service .................................................................................................................... § 302.502(b) ....................... § 302.503(b)

Suspension of tariffs ...................................................................................................... § 302.505 ............................ § 302.506

Answers .................................................................................................................. § 302.505 ............................ § 302.506(e)

Complaints .............................................................................................................. § 302.505 ............................ § 302.506

Time for filing complaint ......................................................................................... § 302.508 ............................ § 302.507

RECOMMENDED DECISIONS (see Decisions)

Answer in support or opposition .................................................................................... § 302.28(b) ......................... § 302.32(b)

Contents ......................................................................................................................... § 302.27(b) ......................... § 302.31(c)

Effect of .......................................................................................................................... § 302.27(c) .......................... § 302.31(d)

Licensing cases ............................................................................................................. § 302.1753 .......................... § 302.216

Exceptions to ................................................................................................................. § 302.1754 .......................... § 302.217

Oral arguments .............................................................................................................. § 302.28(a)(5) ..................... § 302.32(a)(5)

Orders declining review ................................................................................................. § 302.28(c) .......................... § 302.32(c)

Petitions for discretionary review ................................................................................... § 302.28 .............................. § 302.32

Service ........................................................................................................................... § 302.27(b) ......................... § 302.31(c)

Scope ............................................................................................................................. § 302.27(a) ......................... § 302.31(a)(2)

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RECONSIDERATION, REHEARING, REARGUMENT (see Petitions for Reconsideration):

RECORD, CERTIFICATION ................................................................................................. §§ 302.22(d), 27(a), 29(a) .. § 302.31(b)

REPLIES:

Airport fee dispute proceedings ..................................................................................... § 302.609 ............................ § 302.605

Exemption cases ........................................................................................................... § 302.407 ............................ § 302.308

Generally ........................................................................................................................ § 302.6(b) ........................... § 302.6(b)

Licensing cases ............................................................................................................. ............................................. § 302.204(b)

Motions .......................................................................................................................... § 302.18(c) .......................... § 302.11(c)

Enforcement proceedings .............................................................................................. § 302.209 ............................ § 302.408

RESPONSIVE DOCUMENTS (see Answers; Replies):

REVIEW (see Discretionary Review):

ROUTE PROCEEDINGS (see also Certificate Cases):

International route awards ............................................................................................. §§ 302.1701–1790 .............. § 302.201–220

RULEMAKING PETITIONS .................................................................................................. § 302.38 .............................. § 302.16

SERVICE:

Airport fee dispute proceedings ..................................................................................... §§ 302.605(c)(1), (d)(1) ...... §§ 302.603(c)(1), (d)(1)

By the Department ......................................................................................................... § 302.8(a)(1) ....................... § 302.7(a)(1)

Date of ........................................................................................................................... § 302.8(f) ............................ § 302.7(f)

Enforcement complaints ................................................................................................ § 302.204(a) ....................... § 302.404(e)

Exemption cases ........................................................................................................... § 302.403 ............................ § 302.304

Generally ........................................................................................................................ § 302.8 ................................ § 302.7

Licensing cases ............................................................................................................. § 302.1705 .......................... § 302.203

Mail rate petitions .......................................................................................................... § 302.303(c) ........................ § 302.702(d)

Persons eligible for service ........................................................................................... § 302.8(c) ............................ § 302.7(c), (g), (h)

Procedures ..................................................................................................................... § 302.8(b) ........................... § 302.7(b)

Proof of .......................................................................................................................... § 302.8(e) ........................... § 302.7(e)

Rates, fares, and charges complaints ........................................................................... § 302.502(b) ....................... § 302.503(b)

Where to be made ......................................................................................................... § 302.8(d) ........................... § 302.7(d)

SETTLEMENT OFFERS:

Enforcement proceedings .............................................................................................. § 302.215 ............................ § 302.417

Public disclosure ............................................................................................................ § 302.215(d) ....................... § 302.417(d)

SHORTENED PROCEDURE ............................................................................................... § 302.35 .............................. § 302.15

SHOW CAUSE ORDERS (see Orders):

SUBPOENAS ........................................................................................................................ § 302.19 .............................. § 302.25

SUSPENSION OF PRACTICE BEFORE DOT .................................................................... § 302.11(a) ......................... § 302.25(f)

TARIFFS:

Complaints requesting suspension ................................................................................ § 302.505 ............................ § 302.506

TEMPORARY RATE PROCEEDINGS ................................................................................. § 302.310 ............................ § 302.707

TENTATIVE DECISIONS (see Decisions):

TESTIMONY (see Witnesses):

TIME:

Computation of .............................................................................................................. § 302.16 .............................. § 302.8

Continuances of ............................................................................................................. § 302.17 .............................. § 302.9

Extensions of ................................................................................................................. § 302.17 .............................. § 302.9

Licensing cases ............................................................................................................. §§ 302.1706, 1711 .............. § 302.209

TRANSCRIPTS OF HEARINGS ........................................................................................... § 302.24(l) ........................... § 302.28

U.S. AIR CARRIER CERTIFICATION (see Certificate Cases):

VERIFICATION:

Licensing cases ............................................................................................................. § 302.1707 .......................... § 302.206

WAIVERS OF PROCEDURAL STEPS ................................................................................ § 302.33 .............................. § 302.37

WITNESSES:

Attendance fees and mileage ........................................................................................ § 302.21 .............................. § 302.27(c)

Cross-examination by nonparties .................................................................................. § 302.14(b) ......................... § 302.19

Depositions .................................................................................................................... § 302.20 .............................. § 302.26

Objections to public disclosure of testimony ................................................................. § 302.39(c) .......................... § 302.12(c)

Represented by counsel ................................................................................................ § 302.11(a) ......................... § 302.27(a)

Subpoenas ..................................................................................................................... § 302.19 .............................. § 302.25

VIOLATIONS—EVIDENTIAL STATUS IN ENFORCEMENT PROCEEDINGS ................... § 302.216 ............................ § 302.413

Issued in Washington, DC, on January 24,

2000.

Robert S. Goldner,

Acting Deputy Assistant Secretary for

Aviation and International Affairs.

[FR Doc. 00–2554 Filed 2–8–00; 8:45 am]

BILLING CODE 4910–62–P