[Federal Register Volume 65, Number 27 (Wednesday, February 9, 2000)]
[Rules and Regulations]
[Pages 6446-6491]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-2554]



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Part II





Department of Transportation





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Office of the Secretary



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14 CFR Parts 200, 211, 213, etc.



Rules of Practice in Proceedings; Final Rule

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

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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.

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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 
(Sec. 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, non-hearing 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 (Sec. 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 (Sec. 302.4), is being relocated to the section on 
responsive documents (Sec. 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 (Sec. 302.5).
    Service of documents (new Sec. 302.7) is being revised to allow for 
service by

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facsimile and other electronic means. We are also deleting the 
reference in proposed Sec. 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 Sec. 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 Secs. 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 Sec. 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 Sec. 302.27(a)).
    The section on the DOT decisionmaker (new Sec. 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 (Sec. 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 (Sec. 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 
(Sec. 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., Sec. 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., Sec. 302.18(a-1)--motions to disqualify DOT employees in 
review of hearing matters--is being redesignated Sec. 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 Sec. 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 Sec. 302.212; those pertaining to 
initial or continuing fitness cases for U.S. carriers are being placed 
in new Sec. 302.211; and those pertaining to foreign air carrier permit 
cases are being included in new Sec. 302.213.
    A provision is being added (new Sec. 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 Sec. 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 Sec. 302.203(b)(1)).
    We are also eliminating the separate regulatory procedures and time 
periods for responsive pleadings for certificate restriction removal 
cases (current Secs. 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 Sec. 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 
Secs. 302.211(b) and 302.212(e)). This clarification, which reflects 
the provision in current Sec. 302.1713 (new Sec. 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 Sec. 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 Sec. 302.1757 (new 
Sec. 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 Sec. 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 Sec. 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 
Sec. 302.302(b)(4) is being revised to permit the filing of exemption 
requests by facsimile and electronic mail (when

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available), and new Sec. 302.302(e) (current Sec. 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 Sec. 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 
Sec. 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 Sec. 302.403), and the section on 
formal complaints is being expanded to include current Secs. 302.203 
and 302.13 and separated into paragraphs pertaining to, among others 
things, the filing, amendment, and service of such complaints (new 
Sec. 302.404).
    The term ``third-party complaint'' used throughout is being 
replaced with ``formal complaint,'' and the ``saving clause'' from 
Subpart A (current Sec. 302.40) is being moved to Subpart D as new 
Sec. 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 Sec. 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 Sec. 302.617, the reference to 
Sec. 302.28(a) is being changed to Sec. 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 
Secs. 302.611 and 302.613), are being combined into new Sec. 302.606.
    Specifically, the following changes are being made:
    In the third sentence of paragraph (a) of Sec. 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 Sec. 302.603 is being renumbered as Sec. 302.602. In 
paragraph (a) of that section, a reference to Sec. 302.4 is being added 
after the reference to Sec. 302.3 to reflect the changes being made in 
those sections. In paragraph (b) of new Sec. 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 
Secs. 302.611 and 302.613 will now be Sec. 302.606.
    Current Sec. 302.605 is being renumbered as Sec. 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 Sec. 302.603(c)(1) to indicate the manner of service and to 
eliminate excess verbiage.
    Current Sec. 302.607 is being renumbered Sec. 302.604. In paragraph 
(d) of that section, a reference is being included to new 
Sec. 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 Sec. 302.609 is being renumbered Sec. 302.605. In paragraph 
(d), a reference to new paragraph

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Sec. 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 Sec. 302.611 is being renumbered Sec. 302.606 and combined 
with current Sec. 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 Sec. 302.613 are 
being combined with current Sec. 302.611(a) into new Sec. 302.606(a); 
current Secs. 302.611(b) and 302.613(b) are being combined into new 
Sec. 302.606(b); current Secs. 302.611(c) and 302.613(c) are being 
combined into new Sec. 302.606(d); and current Secs. 302.611(d) and 
302.613(d) are being combined into new Sec. 302.606(c). The heading of 
this section is also being retitled to reflect this change.
    Current Sec. 302.615 is being renumbered as Sec. 302.607.
    Current Sec. 302.617 is being renumbered as Sec. 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 Sec. 302.619 is being renumbered as Sec. 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 Sec. 302.621 is being renumbered as Sec. 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 
Sec. 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 
Sec. 302.704(a). In addition, current Sec. 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 Sec. 302.705(b)) and to allow the issues in any hearing 
that is instituted to be formulated by the instituting order (new 
Sec. 302.706(a)).
    The provisions of current Sec. 302.306 and certain provisions of 
Sec. 302.307 concerning the filing of answers are being combined into 
new Sec. 302.705 covering further procedures, and current 
Secs. 302.301, 302.302, and 302.308, and certain provisions of 
Sec. 302.307 are being combined into new Sec. 302.706 entitled 
``Hearing.''
    The provisions of paragraphs (a) and (b) of current Sec. 302.1503 
are being eliminated as unnecessary, and new Sec. 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

[[Page 6450]]

the Department. Therefore, we are amending proposed Sec. 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 (Sec. 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 
(Sec. 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 non-Department 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'' (Sec. 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 (Sec. 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 Sec. 201.4(c)(4) and 
Sec. 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 (Sec. 313.4(b)(5)). In addition, proposed Sec. 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

[[Page 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 
information-sharing 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 Sec. 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 Sec. 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 Sec. 302.206 would require a 
certification in accordance with 18 U.S.C. 1001, to be signed by a 
knowledgeable individual (as described in Sec. 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 Sec. 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 
Sec. 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 Sec. 302.4(b) and the ``verification'' required in current 
Sec. 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 
Sec. 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 Sec. 302.1707, which requires 
an attestation of the ``facts asserted in any pleading'' by ``persons 
having knowledge of them.'' In Sec. 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 (Sec. 302.4(b) and Sec. 302.206) are 
superfluous. We appreciate United's argument that the verification as 
proposed in Sec. 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 Sec. 302.206 so that it merely 
refers readers to Sec. 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 Secs. 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

[[Page 6452]]

Sec. Sec. 302.1701(a) and 1720(c) into new Sec. 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 Sec. 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 
Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 
Sec. 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 time-consuming 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

[[Page 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 Sec. 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 Sec. 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 
Secs. 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 
Sec. 302.1720(d)) from twenty-eight (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.

[[Page 6454]]

Section 302.208 Petitions for oral presentation or judge's decision
    The current rule (Sec. 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 (Sec. 302.208) replaces and is almost 
identical to the current rule, except for the timing of the filing of 
the petitions. Proposed Sec. 302.208(b) provides that petitions shall 
be filed no later than the due date for answers in proceedings governed 
by proposed Sec. 302.211, Sec. 302.212, and Sec. 302.213, which is 
proposed to be twenty-one (21) days.
    In addition, proposed Sec. 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 cross-examination, 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 Sec. 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 Sec. 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.

------------------------------------------------------------------------
                                   Current reference   Revised reference
 Location of rule to be changed       to part 302         to part 302
------------------------------------------------------------------------
Sec.  200.2.....................  Sec.  302.2.......  Sec.  302.1(c)
Sec.  211.12....................  Subpart Q.........  Subpart B
Sec.  213.2.....................  Rule 37...........  Rule 14
Sec.  213.5(c)..................  Rule 37...........  Rule 14
Sec.  216.4(a)..................  Secs.  302.3(b),    Secs.  302.3(b),
                                   302.4(b), (c).      302.4(a), (b)

[[Page 6455]]

 
Sec.  216.4(b)..................  Sec.  302.8.......  Sec.  302.7
Sec.  291.10....................  Subpart Q.........  Subpart B
Sec.  300.2(b)(2)...............  Sec.  302.22a.....  Secs.  302.2,
                                                       302.18
Sec.  300.2(b)(4)...............  Sec.  302.24......  Secs.  302.17-302.
                                                       38
Sec.  300.2(c)(10)..............  Sec.  302.18......  Sec.  302.11
Sec.  300.2(d)..................  Secs.  302.14,      Sec.  302.11(e)
                                   302.18.
Sec.  300.20(c).................  Subpart B.........  Subpart D
Sec.  303.4(b)..................  Sec.  302.19......  Sec.  302.25
Sec.  303.45(c).................  Sec.  302.15......  Sec.  302.20
Sec.  305.7(b)..................  Secs.  302.8,       Secs.  302.7,
                                   302.21.             302.27(c)
Sec.  305.10....................  Secs.  302.19(g),   Secs.  302.25(g),
                                   302.39.             302.12
Sec.  305.11....................  Subpart B.........  Subpart D
Sec.  305.12....................  Sec.  302.202.....  Secs.  302.4(b)
Sec.  377.10(c)(4)..............  Sec.  302.909.....  Removed
Sec.  385.10(b).................  Subpart B.........  Subpart D
Sec.  385.11(b).................  Subpart B.........  Subpart D
Sec.  385.11(d).................  Sec.  302.215.....  Sec.  302.417
Sec.  385.19(i).................  Sec.  302.39......  Sec.  302.12
Sec.  385.31(c).................  Secs.  302.3(a),    Secs.  302.3,
                                   (b), (c), 302.4.    302.4
Sec.  399.18....................  Sec.  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.

[[Page 6456]]

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.


Sec. 200.2  [Amended]

    2. In Sec. 200.2, remove the reference ``Sec. 302.2'' and add, in 
its place, the reference ``Sec. 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.


Sec. 211.12  [Amended]

    4. In Sec. 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.


Sec. 213.2  [Amended]

    6. In Sec. 213.2, remove the reference ``Rule 37'' and add, in its 
place, the reference ``Rule14 ''.


Sec. 213.5  [Amended]

    7. In Sec. 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.


Sec. 216.4  [Amended]

    9. In Sec. 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 Sec. 216.4(b), remove the reference ``Sec. 302.8'' and add, 
in its place, the reference ``Sec. 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.


Sec. 291.10  [Amended]

    12. In Sec. 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.


Sec. 300.2  [Amended]

    14. In Sec. 300.2(b)(2), remove the reference ``302.22a'' and add, 
in its place, the references ``302.2 and 302.18''.
    15. In Sec. 300.2(b)(4)(i), remove the reference ``Sec. 302.24'' 
and add, in its place, the references ``Secs. 302.17-302.38''.
    16. In Sec. 300.2(c)(10), remove the reference ``Sec. 302.18'' both 
times it occurs, and add, in its place, the reference ``Sec. 302.11'' 
both times it occurs.
    17. In Sec. 300.2(d), remove the references ``Rules 14 and 18, 
Secs. 302.14 and 302.18'' and add, in their place, the references 
``Rule 11, Sec. 302.11''.


Sec. 302.18  [Redesignated in part and revised]

    18. Paragraph (a-1) of Sec. 302.18 is redesignated as Sec. 300.18 
and revised to read as follows:


Sec. 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 Sec. 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 
Sec. 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 Sec. 302.35 or Sec. 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.


Sec. 300.20  [Amended]

    19. In Sec. 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.


Sec. 303.04  [Amended]

    21. In Sec. 303.04(b), remove the reference ``302.19'' and add, in 
its place, the reference ``302.25''.


Sec. 303.45  [Amended]

    22. In Sec. 303.45(c), remove the reference ``Sec. 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.


Sec. 305.7  [Amended]

    24. In Sec. 305.7(b), remove the references ``Sec. 302.21'' both 
times it occurs, and ``Sec. 302.8'' both times it occurs, and add, in 
their place, the references ``Sec. 302.7'' and ``Sec. 302.27(c)'', 
respectively.


Sec. 305.10  [Amended]

    25. In Sec. 305.10, remove the references ``Secs. 302.19(g) and 
302.39'' and add, in their place, the references ``Secs. 302.25(g) and 
302.12''.


Sec. 305.11  [Amended]

    26. In Sec. 305.11, remove the reference ``subpart B'' and add, in 
its place, the reference ``subpart D''.

[[Page 6457]]

Sec. 305.12  [Amended]

    27. In Sec. 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.


Sec. 377.10  [Amended]

    29. In Sec. 377.10(c)(4), remove the references ``Secs. 302.909 and 
399.18'' and add, in their place, the reference ``Sec. 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.


Secs. 385.10, 385.11  [Amended]

    31. In Secs. 385.10(b) and 385.11(b), remove the reference 
``Subpart B'' and add, in its place, the reference ``Subpart D''.


Sec. 385.19  [Amended]

    32. In Sec. 385.19(i), remove the reference ``Sec. 302.39'' and 
add, in its place, the reference ``Sec. 302.12''.


Sec. 385.31  [Amended]

    33. In paragraphs (a) and (e) of Sec. 385.31, remove the words 
``ten (10)'' and add, in their place, the words ``seven (7)''; in 
Sec. 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.


Sec. 399.18  [Amended]

    35. In Sec. 399.18, remove the words ``Sec. 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.

[[Page 6458]]

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.


Sec. 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''.


Sec. 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 Sec. 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 Sec. 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


Sec. 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 8\1/2\ 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 double-spaced (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 1\1/2\ 
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

[[Page 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                          7
 (certificates, exemptions, allocation of limited
 frequencies, designations, or charters)...................
Mail Rate Proceedings......................................            4
Name Change/Trade Name Registrations.......................            4
Suspension of Service (14 CFR 323).........................            4
Tariff Justifications to exceed Standard International Fare            6
 Level.....................................................
U.S. Air Carrier Certificates (involving Initial or                    6
 Continuing Fitness).......................................
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.


Sec. 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.

[[Page 6460]]

    (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.


Sec. 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 
Sec. 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.


Sec. 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.


Sec. 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 
Sec. 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 Sec. 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

[[Page 6461]]

proceedings where service is otherwise required, and shall be in 
addition to any other service required by this chapter.


Sec. 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.


Sec. 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.


Sec. 302.10  Parties.

    (a) In addition to the persons set forth in Sec. 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 Secs. 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.


Sec. 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 Secs. 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

[[Page 6462]]

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.


Sec. 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 Sec. 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 
Sec. 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.


Sec. 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 
Sec. 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

[[Page 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.


Sec. 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 Sec. 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


Sec. 302.15  Non-hearing procedures.

    In cases where oral evidentiary hearing procedures will not be 
used, Sec. 302.17 through Sec. 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


Sec. 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


Sec. 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 
Sec. 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 Sec. 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

[[Page 6464]]

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.


Sec. 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 Sec. 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 Sec. 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 Sec. 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.


Sec. 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.


Sec. 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.

[[Page 6465]]

Sec. 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.


Sec. 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 Sec. 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 Sec. 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.


Sec. 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.


Sec. 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

[[Page 6466]]

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.


Sec. 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,

[[Page 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 Sec. 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.


Sec. 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 cross-interrogatories 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 cross-
interrogatories, 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

[[Page 6468]]

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 
Sec. 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.


Sec. 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.


Sec. 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.

[[Page 6469]]

Sec. 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.


Sec. 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.


Sec. 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 
Sec. 302.32, exceptions are filed pursuant to Sec. 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.


Sec. 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 twenty-one (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

[[Page 6470]]

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 Sec. 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.


Sec. 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 Sec. 302.18.


Sec. 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.


Sec. 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 
Sec. 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.

[[Page 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.


Sec. 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.


Sec. 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 Sec. 302.29 through Sec. 302.36.


Sec. 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 Sec. 302.14(a), in the 
manner provided by Sec. 302.18.

Subpart B--Rules Applicable to U.S. Air Carrier Certificate and 
Foreign Air Carrier Permit Licensing Proceedings


Sec. 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.


Sec. 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 Sec. 302.203.
    (d) Where required, each application shall be accompanied by an 
Energy Statement in conformity with part 313 of this chapter.


Sec. 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 Sec. 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 country-pair 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,

[[Page 6472]]

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.


Sec. 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 Sec. 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 Sec. 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.


Sec. 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.


Sec. 302.206  Verification.

    Any pleading filed under this subpart shall include a certification 
as provided in Sec. 302.4(b).

Disposition of Applications


Sec. 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 Sec. 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 
Sec. 302.210(a)(1) or (5) shall be the same as the standards applied in 
cases decided under Sec. 302.210(a)(4). These are the standards set 
forth in the Statute as interpreted and expanded upon under that 
Statute.


Sec. 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 Sec. 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 cross-examination, 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 Sec. 302.211, 
Sec. 302.212 and Sec. 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.


Sec. 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.


Sec. 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 Sec. 302.214 through Sec. 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 Sec. 302.215 through Sec. 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.

[[Page 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 Sec. 302.220 will be calculated from 
the date of the order reinstating the application.


Sec. 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 
Sec. 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 Sec. 302.210.


Sec. 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 Sec. 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 Sec. 302.210.


Sec. 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 Sec. 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 Sec. 302.210.


Sec. 302.214  Oral evidentiary hearing.

    If the DOT decisionmaker determines under Sec. 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 Sec. 302.17 to Sec. 302.38 
governing the conduct of oral evidentiary hearings will apply.


Sec. 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.


Sec. 302.216  Administrative law judge's initial or recommended 
decision.

    (a) In a case that has been set for oral evidentiary hearing under 
Sec. 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 Sec. 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 Sec. 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 Sec. 302.31 shall 
apply.


Sec. 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

[[Page 6474]]

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 Sec. 302.34 shall 
apply.


Sec. 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 Sec. 302.35 shall 
apply.


Sec. 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 Sec. 302.36(b) shall also apply.


Sec. 302.220  Final decision of the Department.

    In addition to the provisions of Sec. 302.38, the following 
provisions shall apply:
    (a) In the case of a certificate application that has been set for 
oral evidentiary hearing under Sec. 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 Sec. 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


Sec. 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.


Sec. 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 
Secs. 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 Secs. 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.


Sec. 302.303  Contents of applications.

    (a) Title. An application filed under Sec. 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

[[Page 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 Sec. 302.304.


Sec. 302.304  Service of documents.

    (a) General requirements. (1) An application for exemption and 
responsive pleadings shall be served as provided by Sec. 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.


Sec. 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.


Sec. 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.


Sec. 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.


Sec. 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.


Sec. 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.

[[Page 6476]]

Sec. 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.


Sec. 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 Sec. 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 Sec. 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


Sec. 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.


Sec. 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 Sec. 302.20.
    Respondent refers to the person against whom a complaint is filed.


Sec. 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.


Sec. 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 Sec. 302.3 and Sec. 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 Sec. 302.406(a) or the Deputy General Counsel 
does so under Sec. 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 Sec. 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.


Sec. 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 Sec. 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

[[Page 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.


Sec. 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 Sec. 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.


Sec. 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 Sec. 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 Sec. 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.


Sec. 302.408  Answers and replies.

    (a) Within fifteen (15) days after the date of service of a notice 
issued pursuant to Sec. 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 Sec. 302.405. Any requests 
for extension of time for filing of an answer to such complaint shall 
be filed in accordance with Sec. 302.11.
    (b) All answers shall be served in accordance with Sec. 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.


Sec. 302.409  Default.

    Failure of a respondent to file and serve an answer within the time 
and in the manner prescribed by Sec. 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.


Sec. 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.


Sec. 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 Sec. 302.32.


Sec. 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

[[Page 6478]]

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 Sec. 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.


Sec. 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.


Sec. 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 
Sec. 302.22.


Sec. 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 
Sec. 302.17 to Sec. 302.38 governing the conduct of oral evidentiary 
hearings will apply.


Sec. 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.


Sec. 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.


Sec. 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 Sec. 302.11. In 
addition, the DOT decisionmaker shall afford the parties an opportunity 
for oral argument on such motion.


Sec. 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.


Sec. 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


Sec. 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.


Sec. 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

[[Page 6479]]

of a petition or complaint by any person, or by the issuance of an 
order by the Department.


Sec. 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 
Sec. 302.506, shall be filed within seven (7) working days after the 
complaint is filed.


Sec. 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.


Sec. 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 Sec. 302.17 through Sec. 302.38 of this 
part shall apply.


Sec. 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.


Sec. 302.507  Computing time for filing complaints.

    In computing the time for filing formal complaints pursuant to 
Sec. 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 Sec. 302.8.

Subpart F--Rules Applicable to Proceedings Concerning Airport Fees


Sec. 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.


Sec. 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 
Secs. 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 Sec. 302.606.


Sec. 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.

[[Page 6480]]

    (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 Sec. 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.


Sec. 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 Sec. 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 
Sec. 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.


Sec. 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 
Sec. 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.


Sec. 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

[[Page 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 Sec. 302.610 or set forth the schedule for any additional 
procedures required to complete the proceeding.


Sec. 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.


Sec. 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 
Sec. 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 
Sec. 302.32(b).


Sec. 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.


Sec. 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


Sec. 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


Sec. 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 rate-making 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.


Sec. 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.

[[Page 6482]]

Sec. 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 Sec. 302.706.


Sec. 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.


Sec. 302.706  Hearing.

    (a) If a hearing is ordered under Sec. 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 
Sec. 302.20.
    (2) In addition to participation in hearings in accordance with 
Sec. 302.19, persons other than parties may, within the time fixed for 
filing an answer to an order to show cause as provided in Sec. 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 
Sec. 302.17 through Sec. 302.38 of this part shall apply.

Provision for Temporary Rate


Sec. 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


Sec. 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.


Sec. 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.


Sec. 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.


Sec. 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

[[Page 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.


Sec. 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.


Sec. 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.


Sec. 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.


Sec. 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.


Sec. 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 
Sec. 302.22.


Sec. 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 Sec. 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


Sec. 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 Sec. 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.

[[Page 6484]]

Sec. 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.


Sec. 302.720  Service.

    A copy of each contract filed pursuant to Sec. 302.718, and a copy 
of all material and data filed pursuant to Sec. 302.719, shall be 
served upon each of the following persons:
    (a) Each certificated and commuter (as defined in Sec. 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.


Sec. 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 Sec. 302.720.


Sec. 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 
Sec. 302.720.


Sec. 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.


Sec. 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.........  Sec.  302.27(b)........................  Sec.  302.31(a)
    Actions during prehearing        Sec.  302.23(a)........................  Sec.  302.22(b)
     conference.
    Arguments before...............  Sec.  302.25...........................  Sec.  302.29
    Briefs.........................  Sec.  302.26...........................  Sec.  302.30
        Licensing cases............  Sec.  302.1752.........................  Sec.  302.215
    Certification for decision.....  Sec.  302.22(d)........................  Sec.  302.31(b)
    Definition.....................  Sec.  302.22(a)........................  Sec.  302.2
    Delegation of authority........  Sec.  302.27(a)........................  Sec.  307.17(a)(3)
        Exceptions.................  Sec.  302.27(a)........................  Sec.  307.17(a)(3)
        Interlocutory matters......  Sec.  302.27(a)........................  Sec.  307.17(a)(3)
    Disqualification...............  Sec.  302.22(b)........................  Sec.  302.17(b)
    Exceptions.....................  Sec.  302.24(e)........................  Sec.  302.24(i)
        Licensing cases............  Sec.  302.1754.........................  Sec.  302.217
        Hearings before............  Sec.  302.24...........................  Sec.  302.23
        Initial decision (see
         Initial Decision).
        Powers.....................  Sec.  302.22(c)........................  Sec.  302.17(a)
        Prehearing conference        Sec.  302.23(b)........................  Sec.  302.22(c)
         report.
        Recommended decision (see
         Recommended Decision).
        Termination of authority...  Sec.  302.22(c)........................  Sec.  307.17(a)(4)
ADMISSIONS:
    Enforcement proceeding.........  Sec.  302.212..........................  Sec.  302.412
    Limitation on use..............  Sec.  302.212..........................  Sec.  302.412(c)
AIRPORT FEES:
    Administrative law judge         Sec.  302.615..........................  Sec.  302.607
     decision.
    Complaints by U.S. or foreign    Sec.  302.603(a).......................  Sec.  302.602(a)
     air carriers.
        Answers....................  Sec.  302.607..........................  Sec.  302.604
        Additional complaints......  Sec.  302.603(b).......................  Sec.  302.602(b)
        Contents...................  Sec.  302.605..........................  Sec.  302.603
        Format of exhibits and       Sec.  302.605(b).......................  Sec.  302.603(b)
         briefs.
        Service....................  Sec.  302.605(c)(1)....................  Sec.  302.603(c)(1)
        Replies....................  Sec.  302.609..........................  Sec.  302.605
    Consolidation of proceedings...  Sec.  302.603(c).......................  Sec.  302.602(c)
    Dismissal......................  Secs.  302.611(c), (d).................  Secs.  302.606(c), (d)
    Final order....................  Sec.  302.621..........................  Sec.  302.610
        Timing.....................  Sec.  302.619..........................  Sec.  302.609
    Instituting order..............  Sec.  302.611(b).......................  Sec.  302.606(b)
    Petitions for discretionary      Sec.  302.617..........................  Sec.  302.608
     review.

[[Page 6485]]

 
        Answers....................  Sec.  302.617(c).......................  Sec.  302.608(c)
    Request for determination by     Sec.  302.603(a).......................  Sec.  302.602(a)
     airport owner/operator.
        Answers....................  Sec.  302.607..........................  Sec.  302.604
        Contents...................  Sec.  302.605..........................  Sec.  302.603
        Format of exhibits and       Sec.  302.605(b).......................  Sec.  302.603(b)
         briefs.
        Service....................  Sec.  302.605(d)(1)....................  Sec.  302.603(d)(1)
        Replies....................  Sec.  302.609..........................  Sec.  302.605
    Review procedures..............  Sec.  302.611..........................  Sec.  302.606
    Significant dispute              Sec.  302.611(b).......................  Sec.  302.606(b)
     determination.
AMENDMENTS OF DOCUMENTS (see
 Documents)
ANSWERS (see also Replies):
    Airport fees...................  Sec.  302.607..........................  Sec.  302.604
    Certificate applications:
        Initial fitness............  Sec.  302.1730(c)......................  Sec.  302.204
        International route awards
            Conforming applications  Sec.  302.1720(d)......................  Sec.  302.212(d)
            Motions to modify scope  Sec.  302.1720(e)......................  Sec.  302.212(d)
            New authority..........  Sec.  302.1720(d)......................  Sec.  302.212(b)
    Complaints
        Air mail contracts.........  Sec.  302.1506.........................  Sec.  302.722
        Airport fees...............  Sec.  302.607..........................  Sec.  302.604
        Enforcement matters........  Sec.  302.204(b).......................  Sec.  302.405
        Suspension of tariffs......  Sec.  302.505..........................  Sec.  302.506
    Consolidation of proceedings...  Sec.  302.12(c)........................  Sec.  302.13(c)
    Enforcement proceeding, notice   Sec.  302.207..........................  Sec.  302.408
     instituting.
    Exemption applications.........  Sec.  302.406..........................  Sec.  302.307
    Foreign air carrier permit       Sec.  302.1740(c)......................  Sec.  302.204
     applications.
    Generally......................  Sec.  302.6............................  Sec.  302.6
    Mail rate proceedings show       Sec.  302.305..........................  Sec.  302.704
     cause orders.
    Motions, generally.............  Sec.  302.18(c)........................  Sec.  302.11(c)
    Motions to consolidate.........  Sec.  302.12(c)........................  Sec.  302.13(c)
    Motions to dismiss and for       Sec.  302.212..........................  Sec.  302.411
     summary judgment.
    Motions for modification/        Sec.  302.218..........................  Sec.  302.419
     dissolution of enforcement
     proceedings.
    Petitions for discretionary      Sec.  302.28(b)........................  Sec.  302.32(b)
     review.
    Petitions for final mail rates.  Sec.  302.303..........................  Sec.  302.702(e)
    Petitions for intervention.....  Sec.  302.15(c)(3).....................  Sec.  302.20(c)(3)
    Petitions for reconsideration..  Sec.  302.37a..........................  Sec.  302.14
    Requests for determination of    Sec.  302.607..........................  Sec.  302.607
     airport fees.
APPEALS:
    Administrative Law Judge's       Sec.  302.18(f)........................  Sec.  302.11(h)
     ruling.
    Enforcement complaints.........  Sec.  302.206(b).......................  Sec.  302.406(c)
APPEARANCES:
    Generally......................  Sec.  302.11...........................  Sec.  302.21
        Application for admission    Sec.  302.11(a)........................  Sec.  302.21(b)
         to practice unnecessary.
        Copy of transcript.........  Sec.  302.11(c)........................  Sec.  302.27(b)
        Retention of counsel.......  Sec.  302.11(b)........................  Sec.  302.27(a)
    Enforcement proceedings........  Sec.  302.214..........................  Sec.  302.416
APPLICATIONS:
    Admission to practice            Sec.  302.11(a)........................  Sec.  302.21(b)
     unnecessary.
        Suspension from practicing   Sec.  302.11(a)........................  Sec.  302.21(c)
         before DOT.
    Amendment......................  Sec.  302.5............................  Sec.  302.5
    Certificates for international   Secs.  302.1701-1713, 1720.............  Secs.  302.201-206
     route awards.
        Conforming applications....  Sec.  302.1720(c)......................  Sec.  302.212(c)
    Certificates involving initial   Secs.  302.1701-1713, 1730.............  Secs.  302.201-206
     fitness.
    Consolidation..................  Sec.  302.12...........................  Sec.  302.13
    Exemptions.....................  Secs.  302.401-405.....................  Secs.  302.302-304
    Exemptions, emergency..........  Secs.  302.410(b), (c).................  Sec.  302.311
    Foreign Air Carrier Permits....  Secs.  302.1701-1713, 1740.............  Secs.  302.201-206
    Licensing cases................  Secs.  Sec.  302.1701-1790.............  Sec.  302.201-206
ARGUMENT:
    Before Administrative Law Judge  Sec.  302.25...........................  Sec.  302.29
    Oral (see Oral Arguments)
ATTENDANCE FEES AND MILEAGE........  Sec.  302.21...........................  Sec.  302.27(c)
BRIEFS:
    Accompanying motions or answers  Sec.  302.18(d)........................  Sec.  302.11(d)
    Failure to restate objections..  Sec.  302.31(b)........................  Sec.  302.35(b)
    Filing time....................  Sec.  302.31(a)........................  Sec.  302.35(a)
    Formal specifications..........  Sec.  302.31(c)........................  Sec.  302.35(c)
    Incorporation by reference.....  Sec.  302.31(b)........................  Sec.  302.35(c)(2)
    Licensing cases................  Secs.  302.302.1752, 1755..............  Secs.  302.215, 218
    To Administrative Law Judge....  Sec.  302.26...........................  Sec.  302.30
        Licensing cases............  Sec.  302.1752.........................  Sec.  302.215
    To DOT decisionmaker...........  Sec.  302.31...........................  Sec.  302.35
        Licensing cases............  Sec.  302.1755.........................  Sec.  302.218

[[Page 6486]]

 
CERTIFICATE CASES FOR U.S. AIR
 CARRIERS:
    Application:
        Answers to.................  Secs.  302.1720(d) 1730(d).............  Sec.  302.204(a)
        Contents of................  Sec.  302.1704.........................  Sec.  302.202
        Incomplete.................  Sec.  302.1713.........................  Sec.  302.209
        Replies to answers.........  .......................................  Sec.  302.204(b)
        Service of.................  Sec.  302.1705.........................  Sec.  302.203
        Supporting evidence........  Sec.  302.1710.........................  Secs.  302.202(a), 205
        Verification...............  Sec.  302.1707.........................  Sec.  302.206
    Continuing Fitness.............  Sec.  302.1730.........................  Sec.  302.211
    Non-hearing procedures.........  Sec.  302.1712(a)......................  Sec.  302.207
    Generally......................  Secs.   302.1701-1790..................  Secs.  302.201-220
    Initial Fitness................  Sec.  302.1730.........................  Sec.  302.211
    International Route Awards.....  Sec.  302.1720.........................  Sec.  302.212
    Oral evidentiary hearing         Secs.  302.1751-1757...................  Secs.  302.214-220
     proceedings.
        Petition for...............  Sec.  302.1712(b)......................  Sec.  302.208
CERTIFICATION:
    Documents......................  Sec.  302.4(b).........................  Sec.  302.4(b)
    Record.........................  Secs.  302.22(d), 27, 29...............  Sec.  302.31(b)
CHARGES (see Rates, Fairs, and
 Charges; Airport Fees)
CITATION OF RULES..................  Sec.  302.2............................  Sec.  302.1(c)
CIVIL PENALTIES....................  Sec.  302.206(a).......................  Secs.  302.407(d), (e)
COMPLAINANTS, JOINDER..............  Sec.  302.13...........................  Sec.  302.404(d)
COMPLAINTS:
    Airport fees...................  Secs.  302.603-605.....................  Secs.  302.602-603
    Contracts for transportation of  Secs.  302.1505-1507...................  Sec.  302.721
     mail.
    Enforcement proceedings........  Secs.  302.200-204.....................  Secs.  302.403-404
    Joinder........................  Sec.  302.13...........................  Sec.  302.404(d)
    Rates, fares, and charges......  Secs.  302.501-508.....................  Secs.  302.501-507
    Suspension of tariffs..........  Secs.  302.505-508.....................  Sec.  302.506
COMPUTATION OF TIME (see also Time)  Sec.  302.16...........................  Sec.  302.8
    CONSOLIDATION OF PROCEEDINGS...  Sec.  302.12...........................  Sec.  302.13
    Airport fees...................  Sec.  302.603(c).......................  Sec.  302.602(c)
    Answer to motion for...........  Sec.  302.12(c)........................  Sec.  302.13(c)
    Enforcement proceedings........  Sec.  302.210(a).......................  Sec.  302.410
    Filing time....................  Sec.  302.12(b)........................  Sec.  302.13(b)
    Initiation of..................  Sec.  302.12(a)........................  Sec.  302.13(a)
CONTINUING FITNESS CERTIFICATE       Sec.  302.1701-1713....................  Sec.  302.212
 CASES.
CONTRACTS (see Mail Contracts)
DECISIONS:
    Final..........................  Sec.  302.36...........................  Secs.  302.38, 220
    Initial (see Administrative Law
     Judges)
    Recommended (see Administrative
     Law Judges)
    Tentative......................  Sec.  302.29...........................  Sec.  302.33
        Exceptions to..............  Sec.  302.30...........................  Sec.  302.34
DEFINITIONS........................  NA.....................................  Secs.  302.2, 402
DELEGATION OF AUTHORITY............  Sec.  302.27...........................  Secs.  302.17(a), 18(a)
DEPOSITIONS:
    Application by party for.......  Sec.  302.20(b)........................  Sec.  302.26(b)
    Criteria for order to issue....  Sec.  302.20(a)........................  Sec.  302.26(a)
    Evidential status..............  Secs.  302.20(h).......................  Sec.  302.26(h)
    Objections to questions or       Sec.  302.2(d).........................  Sec.  302.26(d)
     evidence.
    Specifications.................  Sec.  302.20(g)........................  Sec.  302.26(g)
    Subscription by witness........  Sec.  302.20(e)........................  Sec.  302.26(e)
    Written interrogatories........  Sec.  302.20(f)........................  Sec.  302.26(f)
DISCRETIONARY REVIEW:
    Initial and Recommended          Sec.  302.28...........................  Sec.  302.32
     decisions.
        Answers in opposition or     Sec.  302.28(b)........................  Sec.  302.32(b)
         support.
        Formal requirements........  Sec.  302.28(a)(3).....................  Secs.  302.32(a)(3), (4)
        Grounds for................  Sec.  302.28(a)(2).....................  Sec.  302.32(a)(2)
        Orders declining review....  Sec.  302.28(c)........................  Sec.  302.32(c)
        Oral arguments.............  Sec.  302.28(a)(5).....................  Sec.  302.32(a)(5)
        Petitions for..............  Sec.  302.28(a)(1).....................  Sec.  302.32(a)(1)
        Review proceedings.........  Sec.  302.28(d)........................  Sec.  302.32(d)
DISSOLUTION OF ENFORCEMENT ACTION..  Sec.  302.218..........................  Sec.  302.419
DOCUMENTS:
    Amendments.....................  Sec.  302.5............................  Sec.  302.5
        Leave of Department........  Sec.  302.5............................  Sec.  302.5(a)
        Timing of..................  Sec.  302.5............................  Sec.  302.5(b)
    Answers (see Answers)
    Briefs (see Briefs)
    Dismissal......................  Sec.  302.5............................  Sec.  302.3(d)
    Electronic filing..............  NA.....................................  Sec.  302.3(c)
    Exhibits.......................  Secs.  302.24(g).......................  Sec.  302.24(c)

[[Page 6487]]

 
    Filing.........................  Sec.  302.3............................  Sec.  302.3
        Address....................  Sec.  302.3(a).........................  Sec.  302.3(a)
        Date.......................  Sec.  302.3(a).........................  Sec.  302.3(a)
        Improper filing............  Sec.  302.4e...........................  Sec.  302.3(d)
    Formal specifications..........  Sec.  302.3(b).........................  Sec.  302.3(b)
    General requirements...........  Sec.  302.4............................  Sec.  302.4
        Contents...................  Sec.  302.4(a).........................  Sec.  302.4(a)(2)
        Designation of person to     Sec.  302.4(c).........................  Sec.  302.4(a)
         receive service.
        Subscription...............  Sec.  302.4(b).........................  Sec.  302.4(b)
    Memoranda of opposition or       Sec.  302.6(c).........................  Sec.  302.706(b)(2)
     support.
    Number of copies...............  Sec.  302.3(c).........................  Sec.  302.3(c)
    Objections to public disclosure  Sec.  302.39(b)........................  Sec.  302.12
    Official Notice of facts.......  Sec.  302.24(n)........................  Sec.  302.24(g)
    Partial relevance of...........  Sec.  302.24(I)........................  Sec.  302.24(e)
    Presented at oral argument.....  Sec.  302.32(b)........................  Sec.  302.36(b)
    Receipt after hearing..........  Sec.  302.24(k)........................  Sec.  302.24(h)
    Responsive.....................  Sec.  302.6............................  Sec.  302.6
    Retention......................  Sec.  302.7............................  Sec.  302.3(f)
    Service (see Service)
    Table of contents/Index........  Sec.  302.3(d).........................  Sec.  302.4(a)(3)
    Unauthorized...................  Sec.  302.4(f).........................  Sec.  302.6(c)
DOT DECISIONMAKER:
    Briefs to......................  Sec.  302.31...........................  Sec.  302.35
        Licensing cases............  Sec.  302.1755.........................  Sec.  302.218
    Certification of record to.....  Sec.  302.22(d)........................  Sec.  302.31(b)
    Definition.....................  Sec.  302.22a..........................  Secs.  302.2, 18
    Final decision.................  Sec.  302.36...........................  Sec.  302.38
        Licensing cases............  Sec.  302.1757.........................  Sec.  302.220
    Oral argument..................  Sec.  302.32...........................  Sec.  302.36
        Licensing cases............  Sec.  302.1756.........................  Sec.  302.219
    Petitions for reconsideration..  Sec.  302.37...........................  Sec.  302.14
    Review of Administrative Law     Sec.  302.38...........................  Sec.  302.32
     Judge decision.
    Tentative decision.............  Sec.  302.29...........................  Sec.  302.33
        Exceptions.................  Sec.  302.30...........................  Sec.  302.34
ENFORCEMENT PROCEEDINGS:
    Admissions as to facts and       Sec.  302.212..........................  Sec.  302.412
     documents.
    Complaints:
        Formal.....................  Sec.  302.201..........................  Sec.  302.404
        Informal...................  Sec.  302.200..........................  Sec.  302.403
        Insufficiency of...........  Sec.  302.203..........................  Sec.  302.404(c)
    Consolidation of proceedings...  Sec.  302.210a.........................  Sec.  302.410
    Evidence of previous violations  Sec.  302.216..........................  Sec.  302.413
    Generally......................  Secs.  302.200-217.....................  Secs.  302.401-420
    Hearings.......................  Sec.  302.213..........................  Sec.  302.415
    Modification or dissolution of   Sec.  302.218..........................  Sec.  302.419
     enforcement action.
    Motions to dismiss.............  Sec.  302.212..........................  Sec.  302.411
    Motions for summary judgment...  Sec.  302.212..........................  Sec.  302.402
    Settlement proceedings.........  Sec.  302.215..........................  Sec.  302.417
EVIDENCE:
    Exhibits.......................  Secs.  302.24(g), (h)..................  Secs.  302.24(c), (d)
    Generally......................  Sec.  302.24(c)........................  Sec.  302.24(a)
    Objections to..................  Sec.  302.24(d)........................  Sec.  302.24(b)
    Offers of proof................  Sec.  302.24(f)........................  Sec.  302.24(j)
    Official notice of facts in      Sec.  302.24(n)........................  Sec.  302.24(g)
     certain documents.
    Partial relevance of...........  Sec.  302.24(I)........................  Sec.  302.24(e)
    Previous violations............  Sec.  302.216..........................  Sec.  302.413
    Records in other proceedings...  Sec.  302.24(j)........................  Sec.  302.24(f)
EXAMINERS (see Administrative Law
 Judges)
EXCEPTIONS:
    Administrative Law Judge's       Sec.  302.24(e)........................  Sec.  302.24(i)
     rulings.
    Initial decisions..............  Sec.  302.30...........................  Sec.  302.31(c)
    Licensing cases................  Sec.  302.1754.........................  Sec.  302.217
    Recommended decisions..........  Sec.  302.30...........................  Sec.  302.31(c)
    Request for oral argument......  Sec.  302.32...........................  Sec.  302.36
    Tentative decisions............  Sec.  302.30...........................  Sec.  302.34
    Waiver.........................  Sec.  302.33...........................  Sec.  302.37
EXEMPTION PROCEEDINGS:
    Application:
        Answers to.................  Sec.  302.406..........................  Sec.  302.307
        Contents of................  Sec.  302.402..........................  Sec.  302.303
        Filing of..................  Sec.  302.401..........................  Sec.  302.302
        Incomplete.................  Sec.  302.405..........................  Sec.  302.306
        Posting of.................  Sec.  302.404..........................  Sec.  302.305
        Service of.................  Sec.  302.403..........................  Sec.  302.304

[[Page 6488]]

 
        Reply to answer............  Sec.  302.407..........................  Sec.  302.308
        Supporting evidence........  Sec.  302.402(c).......................  Sec.  302.302(c)
    DOT's initiative...............  Sec.  302.409..........................  Sec.  302.310
    Emergencies....................  Sec.  302.410..........................  Sec.  302.311
        Cabotage...................  Sec.  302.402(d).......................  Sec.  302.303(d)
    Hearing request................  Sec.  302.408..........................  Sec.  302.309
EXHIBITS (see also Evidence):
    Generally......................  Sec.  302.24(g)........................  Secs.  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.................  Sec.  302.1740(c)......................  Sec.  302.204(a)
        Contents of................  Sec.  302.1704.........................  Sec.  302.202
        Incomplete.................  Sec.  302.1713.........................  Sec.  302.209
        Replies to answers.........  .......................................  Sec.  302.204(b)
        Service of.................  Sec.  302.1705.........................  Sec.  302.203
        Supporting evidence........  Sec.  302.1710.........................  Secs.  302.202(a), 205
        Verification...............  Sec.  302.1707.........................  Sec.  302.206
    Non-hearing procedures.........  Sec.  302.1712(a)......................  Sec.  302.207
    Generally......................  Secs.  302.1701-1713, 1740-1790........  Secs.  302.201-220
    Oral evidentiary hearing         Sec.  302.1751-1757....................  Secs.  302.214-220
     proceedings.
        Petition for...............  Sec.  302.1712(b)......................  Sec.  302.208
HEARINGS:
    Airport fee dispute proceedings  Sec.  302.611(b).......................  Sec.  302.606(b)
    Argument before Administrative   Sec.  302.25...........................  Sec.  302.29
     Law Judge.
    Change in rates, fares, or       Sec.  302.506..........................  Sec.  302.706
     charges.
    Consolidated (see Consolidation
     of Proceedings)
    Documents of partial relevance.  Sec.  302.24(i)........................  Sec.  302.24(e)
    Enforcement proceedings........  Sec.  302.213..........................  Sec.  302.415
    Evidence (see Evidence)
    Expedition of..................  Sec.  302.14(a)........................  Sec.  302.11(e)
    Generally......................  Sec.  302.24...........................  Sec.  302.23
    Intervention...................  Sec.  302.15...........................  Sec.  302.20
    Licensing cases................  Sec.  302.1751.........................  Sec.  302.214
    Notice.........................  Sec.  302.24(b)........................  Sec.  302.23
    Offers of proof................  Sec.  302.24(f)........................  Sec.  302.24(j)
    Official notice of facts in      Sec.  302.24(n)........................  Sec.  302.24(g)
     certain documents.
    Participation by non parties...  Sec.  302.14(b)........................  Sec.  302.19
    Receipt of documents after       Sec.  302.24(k)........................  Sec.  302.24(h)
     hearing.
    Records in other proceedings...  Sec.  302.24(j)........................  Sec.  302.24(f)
    Request for, on application for  Sec.  302.408..........................  Sec.  302.309
     exemption.
    Shortened procedure............  Sec.  302.35...........................  Sec.  302.15
    Transcripts....................  Secs.  302.24(l), (m)..................  Sec.  302.28
INITIAL DECISION:
    Answer in support or opposition  Sec.  302.28(b)........................  Sec.  302.32(b)
    Contents.......................  Sec.  302.27(b)........................  Sec.  302.31(c)
    Effect of......................  Sec.  302.27(c)........................  Sec.  302.31(d)
    Licensing cases................  Sec.  302.1753.........................  Sec.  302.216
        Exceptions to..............  Sec.  302.1754.........................  Sec.  302.217
    Oral arguments.................  Sec.  302.28(a)(5).....................  Sec.  302.32(a)(5)
    Orders declining review........  Sec.  302.28(c)........................  Sec.  302.32(c)
    Petitions for discretionary      Sec.  302.28...........................  Sec.  302.32
     review.
    Service........................  Sec.  302.27(b)........................  Sec.  302.31(c)
    Scope..........................  Sec.  302.27(a)........................  Sec.  302.31(a)(1)
INITIAL FITNESS CERTIFICATE CASES
 (see Certificate Cases)
INSTITUTING ORDERS (see Orders)
INTERROGATORIES (see Depositions)
INTERVENTION:
    Generally......................  Sec.  302.15...........................  Sec.  302.20
JOINDER OF COMPLAINTS OR             Sec.  302.13...........................  Sec.  302.404(d)
 COMPLAINANTS.
JOINT PLEADINGS:
    Enforcement cases..............  Sec.  302.13...........................  Sec.  302.404(d)
    Licensing cases................  Sec.  302.1708.........................  Sec.  302.204(c)
LAW JUDGE (see Administrative Law
 Judges)
LICENSING CASES (see Certificate
 Cases; Foreign Air Carrier Permit
 Cases
MAIL CONTRACTS:
    Complaint against contract.....  Secs.  302.1505-1507...................  Secs.  302.721-723
    Data supporting contract.......  Sec.  302.1503.........................  Sec.  302.719
    Explanation of contract........  Sec.  302.1503.........................  Sec.  302.719

[[Page 6489]]

 
    Filing of contract.............  Sec.  302.1502.........................  Sec.  302.718
    Petition for reconsideration...  Sec.  302.1508.........................  Sec.  302.724
    Service of contract............  Sec.  302.1504.........................  Sec.  302.720
MAIL RATE CONFERENCES:
    Availability of data to Postal   Sec.  302.317..........................  Sec.  302.714
     Service.
    Conditions upon participation..  Sec.  302.314..........................  Sec.  302.711
        Compliance report..........  Sec.  302.314(d).......................  Sec.  302.711(d)
        Non-disclosure of            Sec.  302.314(a).......................  Sec.  302.711(a)
         information.
        Signed statement required..  Sec.  302.314(b).......................  Sec.  302.711(b)
    DOT analysis of data for         Sec.  302.316..........................  Sec.  302.713
     submission of answers.
    Effect of conference agreements  Sec.  302.319..........................  Sec.  302.716
    Information to be requested      Sec.  302.315..........................  Sec.  302.712
     from carrier.
    Participants in conferences....  Sec.  302.313..........................  Sec.  302.710
    Post conference procedure......  Sec.  302.318..........................  Sec.  302.715
    Scope of conferences...........  Sec.  302.312..........................  Sec.  302.709
    Time of commencing and           Sec.  302.321..........................  Sec.  302.708(b)
     terminating conference.
    Waiver of participant            Sec.  302.320..........................  Sec.  302.717
     conditions.
MAIL RATE PROCEEDINGS:
    Evidence.......................  Sec.  302.308..........................  Sec.  302.706(c)
    Further procedures.............  Sec.  302.306, 307.....................  Sec.  302.705
    Hearing........................  Sec.  302.309..........................  Sec.  302.706
    Institution of proceedings.....  Sec.  302.302..........................  Sec.  302.702
    Objections and answers to show   Sec.  302.305..........................  Sec.  302.704
     cause order.
    Order to show cause............  Sec.  302.303..........................  Sec.  302.703
    Parties and persons other than   Sec.  302.301, 302.....................  Sec.  302.706(b)
     parties.
MILEAGE FEES.......................  Sec.  302.21...........................  Sec.  302.27(c)
MODIFICATION OF ENFORCEMENT ACTION.  Sec.  302.218..........................  Sec.  302.419
MOTIONS (see also Petitions):
    Answers to.....................  Sec.  302.18(c)........................  Sec.  302.11(c)
    Appeals from rulings of          Sec.  302.18(f)........................  Sec.  302.11(h)
     Administrative Law Judges.
    Briefs.........................  Sec.  302.18(d)........................  Sec.  302.11(d)
    Consolidation of proceedings...  Sec.  302.12...........................  Sec.  302.13
        Enforcement cases..........  Sec.  302.210a.........................  Sec.  302.410
    Continuances and extension of    Sec.  302.17...........................  Sec.  302.9
     time.
    Disposition of.................  Sec.  302.18(e)........................  Sec.  302.11(g)
    Effect of pendency.............  Sec.  302.18(g)........................  Sec.  302.11(f)
    Expedition of case.............  Sec.  302.14(a)........................  Sec.  302.11(e)
    For suspension of operating      Sec.  302.217..........................  Sec.  302.418
     authority pendente lite.
    For modification or dissolution  Sec.  302.218..........................  Sec.  302.419
     of orders.
    Form and contents..............  Sec.  302.18(b)........................  Sec.  302.11(b)
    Generally......................  Sec.  302.18...........................  Sec.  302.11(a)
    Oral arguments.................  Sec.  302.18(d)........................  Sec.  302.11(d)
    Substitution of parties........  Sec.  302.10...........................  Sec.  302.10(b)
    To correct transcripts.........  Sec.  302.24(m)........................  Sec.  302.28(f)
    To dismiss and for summary       Sec.  302.212..........................  Sec.  302.411
     judgment.
    To dismiss formal complaint....  Sec.  302.204..........................  Sec.  302.405(c)
    To file unauthorized documents.  Sec.  302.4(f).........................  Sec.  302.6(c)
    To modify scope in Licensing     Sec.  302.1720(c)......................  Sec.  302.212(b)
     cases.
    To quash or modify subpoena....  Sec.  302.19(f)........................  Sec.  302.25(f)
    To whom motions addressed......  Sec.  302.18(a)........................  Sec.  302.11(a)
    To withhold information from     Secs.  302.39(b), (e), (f).............  Secs.  302.12(d), (e)
     public disclosure.
NON-HEARING PROCEDURES.............  Sec.  302.35...........................  Sec.  302.15
        Licensing cases............  Sec.  302.1712(a)......................  Sec.  302.207
OBJECTIONS (see also Answers):
    To Public Disclosure of          Sec.  302.39...........................  Sec.  302.12
     Information.
OFFERS OF PROOF....................  Sec.  302.24(f)........................  Sec.  302.24(j)
OFFICIAL NOTICE....................  Sec.  302.24(n)........................  Sec.  302.24(g)
ORAL ARGUMENTS:
    Before DOT decisionmakers......  Sec.  302.32...........................  Sec.  302.36
        Request for leave..........  Sec.  302.32(a)........................  Sec.  302.36(a)
        Rules on documentary         Sec.  302.32(b)........................  Sec.  302.36(b)
         evidence.
    Before Administrative Law        Sec.  302.25...........................  Sec.  302.29
     Judges.
    Discretionary review...........  Sec.  302.28(a)(5).....................  Sec.  302.32(a)(5)
    Licensing cases................  Sec.  302.1756.........................  Sec.  302.219
    Waivers........................  Sec.  302.33...........................  Sec.  302.37
ORAL EVIDENTIARY HEARINGS (see
 Hearings)
ORDERS:
    Declining review of initial      Sec.  302.28(c)........................  Sec.  302.32(c)
     decisions.
    Dismissal:
        Airport fee dispute          Secs.  302.611(c), (d).................  Secs.  302.606(c), (d)
         proceedings.
        Enforcement complaints.....  Sec.  302.205..........................  Sec.  302.406
        Licensing cases............  Sec.  302.1750(a)(2)...................  Sec.  302.210(a)(3)
    Establishing further procedures  Sec.  302.1750.........................  Sec.  302.210
     (Licensing cases).
    Final..........................  Sec.  302.36...........................  Sec.  302.38

[[Page 6490]]

 
        Airport fee dispute          Sec.  302.621..........................  Sec.  302.610
         proceedings.
        Licensing cases............  Sec.  302.1750.........................  Sec.  302.210
        Mail contracts.............  Sec.  302.1507(a)......................  Sec.  302.723(a)
        Mail rate proceedings......  Sec.  302.306..........................  Sec.  302.705
     Instituting oral evidentiary
     hearing:
        Airport fee dispute          Sec.  302.611(b).......................  Sec.  302.606(b)
         proceedings.
        Licensing cases............  Sec.  302.1750(a)(1)...................  Sec.  302.210(a)(4)
        Mail rate proceedings......  Secs.  302.307, 309....................  Secs.  302.703, 705(b)
    Instituting investigation of     Sec.  302.504..........................  Sec.  302.505
     rates, fares, and charges.
    Show cause:
        Licensing cases............  Sec.  302.1730(d)......................  Sec.  302.210(a)(1)
        Mail rate proceedings......  Sec.  302.304..........................  Sec.  302.703
PARTIES:
    Appearances of.................  Sec.  302.11...........................  Sec.  302.21(a)
    Defined........................  Sec.  302.9............................  Sec.  302.2, 10(a)
    Enforcement proceedings........  Sec.  302.210..........................  Sec.  302.402
    Licensing cases................  Sec.  302.1709.........................  Sec.  302.210(a)(4)
    Mail rate proceedings..........  Sec.  302.301..........................  Sec.  302.706(b)
    Participation by Air Carrier     Sec.  302.10(a)........................  Sec.  302.10(c)
     Associations.
    Persons other than parties.....  Sec.  302.14...........................  Sec.  302.19
    Substitution of................  Sec.  302.10...........................  Sec.  302.10(b)
PETITIONS:
    Determination of rates, fares,   Sec.  302.502(a).......................  Sec.  302.502-503
     or charges.
    Discretionary review (see
     Discretionary Review)
    Filing Time....................  Sec.  302.37(a)........................  Sec.  302.14(a)
    Institution of mail rate         Sec.  302.303..........................  Sec.  302.302
     proceedings.
    Intervention...................  Sec.  302.15(c)........................  Sec.  302.20
    Orders subject to                Sec.  302.37(a)........................  Sec.  302.14(a)
     reconsideration.
    Repetitive.....................  Sec.  302.37(c)........................  Sec.  302.14(c)
    Reconsideration................  Sec.  302.37...........................  Sec.  302.14
    Rulemaking.....................  Sec.  302.38...........................  Sec.  302.16
PREHEARING CONFERENCE..............  Sec.  302.23...........................  Sec.  302.22
    Actions during.................  Sec.  302.23(a)........................  Sec.  302.22(b)
    Enforcement proceeding.........  Sec.  302.211..........................  Sec.  302.414
    Purposed Sec.  302.23(a).......  Sec.  302.23(a)........................  Sec.  302.22(a)
    Report of......................  Sec.  302.23(b)........................  Sec.  302.22(c)
    Scope..........................  Sec.  302.23(a)........................  Sec.  302.22(a)
PROCEEEDINGS:
    Airport fee dispute proceedings  Secs.  302.601-621.....................  Secs.  302.601-610
    Consolidation of (see
     Consolidation)
    Contemporaneous consideration
     (see Consolidation)
    Enforcement....................  Secs.  302.200-217.....................  Sec.  302.401-420
    Exemption......................  Secs.  302.400-410.....................  Sec.  302.301-311
    Licensing cases................  Secs.  302.1701-1790...................  Sec.  302.201-220
    Mail rate......................  Secs.  302.300-321.....................  Sec.  302.701-717
    Rates, fares, and charges......  Secs.  302.500-508.....................  Sec.  302.501-507
PUBLIC DISCLOSURE OF INFORMATION:
    Documents......................  Sec.  302.39(b)........................  Sec.  302.12(b)
    Generally......................  Sec.  302.39(a)........................  Sec.  302.12(a)
    Objection to by government.....  Sec.  302.39(d)........................  Sec.  302.12(f)
    Oral testimony.................  Sec.  302.39(c)........................  Sec.  302.12(c)
RATES, FARES, AND CHARGES--
 PROCEEDINGS (see also Mail Rate
 Proceedings; Airport Fees):
    Institution of.................  Sec.  302.501..........................  Sec.  302.502
    Order of investigation.........  Sec.  302.504..........................  Sec.  302.505
    Petition.......................  Sec.  302.501..........................  Sec.  302.503
        Contents...................  Sec.  302.502(a).......................  Sec.  302.503(a)
        Dismissed..................  Sec.  Sec.  302.503....................  Sec.  302.504
        Service....................  Sec.  302.502(b).......................  Sec.  302.503(b)
    Suspension of tariffs..........  Sec.  302.505..........................  Sec.  302.506
        Answers....................  Sec.  302.505..........................  Sec.  302.506(e)
        Complaints.................  Sec.  302.505..........................  Sec.  302.506
        Time for filing complaint..  Sec.  302.508..........................  Sec.  302.507
RECOMMENDED DECISIONS (see
 Decisions)
    Answer in support or opposition  Sec.  302.28(b)........................  Sec.  302.32(b)
    Contents.......................  Sec.  302.27(b)........................  Sec.  302.31(c)
    Effect of......................  Sec.  302.27(c)........................  Sec.  302.31(d)
    Licensing cases................  Sec.  302.1753.........................  Sec.  302.216
    Exceptions to..................  Sec.  302.1754.........................  Sec.  302.217
    Oral arguments.................  Sec.  302.28(a)(5).....................  Sec.  302.32(a)(5)
    Orders declining review........  Sec.  302.28(c)........................  Sec.  302.32(c)
    Petitions for discretionary      Sec.  302.28...........................  Sec.  302.32
     review.
    Service........................  Sec.  302.27(b)........................  Sec.  302.31(c)
    Scope..........................  Sec.  302.27(a)........................  Sec.  302.31(a)(2)

[[Page 6491]]

 
RECONSIDERATION, REHEARING,
 REARGUMENT (see Petitions for
 Reconsideration):
RECORD, CERTIFICATION..............  Secs.  302.22(d), 27(a), 29(a).........  Sec.  302.31(b)
REPLIES:
    Airport fee dispute proceedings  Sec.  302.609..........................  Sec.  302.605
    Exemption cases................  Sec.  302.407..........................  Sec.  302.308
    Generally......................  Sec.  302.6(b).........................  Sec.  302.6(b)
    Licensing cases................  .......................................  Sec.  302.204(b)
    Motions........................  Sec.  302.18(c)........................  Sec.  302.11(c)
    Enforcement proceedings........  Sec.  302.209..........................  Sec.  302.408
RESPONSIVE DOCUMENTS (see Answers;
 Replies):
REVIEW (see Discretionary Review):
ROUTE PROCEEDINGS (see also
 Certificate Cases):
    International route awards.....  Secs.  302.1701-1790...................  Sec.  302.201-220
RULEMAKING PETITIONS...............  Sec.  302.38...........................  Sec.  302.16
SERVICE:
    Airport fee dispute proceedings  Secs.  302.605(c)(1), (d)(1)...........  Secs.  302.603(c)(1), (d)(1)
    By the Department..............  Sec.  302.8(a)(1)......................  Sec.  302.7(a)(1)
    Date of........................  Sec.  302.8(f).........................  Sec.  302.7(f)
    Enforcement complaints.........  Sec.  302.204(a).......................  Sec.  302.404(e)
    Exemption cases................  Sec.  302.403..........................  Sec.  302.304
    Generally......................  Sec.  302.8............................  Sec.  302.7
    Licensing cases................  Sec.  302.1705.........................  Sec.  302.203
    Mail rate petitions............  Sec.  302.303(c).......................  Sec.  302.702(d)
    Persons eligible for service...  Sec.  302.8(c).........................  Sec.  302.7(c), (g), (h)
    Procedures.....................  Sec.  302.8(b).........................  Sec.  302.7(b)
    Proof of.......................  Sec.  302.8(e).........................  Sec.  302.7(e)
    Rates, fares, and charges        Sec.  302.502(b).......................  Sec.  302.503(b)
     complaints.
    Where to be made...............  Sec.  302.8(d).........................  Sec.  302.7(d)
SETTLEMENT OFFERS:
    Enforcement proceedings........  Sec.  302.215..........................  Sec.  302.417
    Public disclosure..............  Sec.  302.215(d).......................  Sec.  302.417(d)
SHORTENED PROCEDURE................  Sec.  302.35...........................  Sec.  302.15
SHOW CAUSE ORDERS (see Orders):
SUBPOENAS..........................  Sec.  302.19...........................  Sec.  302.25
SUSPENSION OF PRACTICE BEFORE DOT..  Sec.  302.11(a)........................  Sec.  302.25(f)
TARIFFS:
    Complaints requesting            Sec.  302.505..........................  Sec.  302.506
     suspension.
TEMPORARY RATE PROCEEDINGS.........  Sec.  302.310..........................  Sec.  302.707
TENTATIVE DECISIONS (see
 Decisions):
TESTIMONY (see Witnesses):
TIME:
    Computation of.................  Sec.  302.16...........................  Sec.  302.8
    Continuances of................  Sec.  302.17...........................  Sec.  302.9
    Extensions of..................  Sec.  302.17...........................  Sec.  302.9
    Licensing cases................  Secs.  302.1706, 1711..................  Sec.  302.209
TRANSCRIPTS OF HEARINGS............  Sec.  302.24(l)........................  Sec.  302.28
U.S. AIR CARRIER CERTIFICATION (see
 Certificate Cases):
VERIFICATION:
    Licensing cases................  Sec.  302.1707.........................  Sec.  302.206
WAIVERS OF PROCEDURAL STEPS........  Sec.  302.33...........................  Sec.  302.37
WITNESSES:
    Attendance fees and mileage....  Sec.  302.21...........................  Sec.  302.27(c)
    Cross-examination by nonparties  Sec.  302.14(b)........................  Sec.  302.19
    Depositions....................  Sec.  302.20...........................  Sec.  302.26
    Objections to public disclosure  Sec.  302.39(c)........................  Sec.  302.12(c)
     of testimony.
    Represented by counsel.........  Sec.  302.11(a)........................  Sec.  302.27(a)
    Subpoenas......................  Sec.  302.19...........................  Sec.  302.25
VIOLATIONS--EVIDENTIAL STATUS IN     Sec.  302.216..........................  Sec.  302.413
 ENFORCEMENT PROCEEDINGS.
----------------------------------------------------------------------------------------------------------------


    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