[Federal Register Volume 62, Number 22 (Monday, February 3, 1997)]
[Proposed Rules]
[Pages 5094-5134]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-2070]



[[Page 5093]]

_______________________________________________________________________

Part III





Department of Transportation





_______________________________________________________________________



Office of the Secretary



_______________________________________________________________________



14 CFR Parts 300 and 302



Rules of Practice in Proceedings; Proposed Rule

  Federal Register / Vol. 62, No. 22 / Monday, February 3, 1997 / 
Proposed Rules  

[[Page 5094]]



DEPARTMENT OF TRANSPORTATION

Office of the Secretary

14 CFR Parts 300 and 302

[Docket No. OST-97-2090; Notice No. 97-2]
RIN 2105-AC48


Rules of Practice in Proceedings

AGENCY: Office of the Secretary, Department of Transportation.

ACTION: Notice of Proposed Rulemaking.

-----------------------------------------------------------------------

SUMMARY: 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those that are outdated or otherwise in need of reform.''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 has undertaken a review of its 
aviation economic regulations as contained in 14 CFR Chapter II. We 
have thus far identified a number of regulations that were outdated or 
contained references that were obsolete. This rulemaking proposes to 
modify various provisions in 14 CFR part 302--Rules of Practice in 
Proceedings by eliminating redundancies, excess verbiage, and obsolete 
provisions; by making technical changes necessary to make the rules 
current; and by reorganizing and renumbering subparts in a more logical 
order and to place a greater emphasis on procedures used in written as 
opposed to oral proceedings. As part of the reorganization, one 
provision in part 302 would be relocated to part 300 of this chapter--
Rules of Conduct in DOT Proceedings under this Chapter, and all 
currently reserved subparts would be removed. The rulemaking also 
proposes to shorten some of the time periods for filing responsive 
documents in licensing cases, and to include procedures for slot 
exemptions at high density airports.

DATES: Comments must be received on or before April 4, 1997.

ADDRESSES: Comments should be directed to Department of 
Transportation Dockets, Docket OST-97-2090, 400 Seventh Street, 
SW., Room PL-401, Washington, DC 20590.

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, S.W., Washington, DC 20590, (202) 366-9721.

SUPPLEMENTARY INFORMATION:

Comments Invited

    Interested persons are invited to participate in this rulemaking 
action by submitting such written data, views, or arguments as they may 
desire. Comments that provide the factual basis supporting the views 
and suggestions presented are particularly helpful in developing 
reasoned regulatory decisions. Communications should identify the 
regulatory docket number and be submitted in duplicate to the address 
listed above. Commenters wishing the Department to acknowledge receipt 
of their comments must submit with those comments a self-addressed 
stamped postcard on which the following statement is made: Comments on 
Docket No. OST-97-2090. The postcard will be date/time stamped and 
returned to the commenter. All communications on or before the 
specified closing date will be considered by the Assistant Secretary 
for Aviation and International Affairs before taking action on any 
further rulemaking. Also, this proposal may be changed in light of 
comments received. All comments submitted will be available for 
examination in Docket OST-97-2090. A report summarizing each 
substantive public contact with DOT personnel concerned with this 
rulemaking will be filed in the docket.

Background

    The Department of Transportation has reviewed its existing 
regulations in order to determine whether changes should be made to 
promote economic growth, create jobs, or eliminate unnecessary costs or 
other burdens on the economy. In the course of this review, the 
Department determined that references in various regulations were 
obsolete and that technical and editorial changes to the regulations 
are necessary to make them current.
    Title 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 have 
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.'

The Changes

    General. Part 302 is extensive, with different subparts governing 
different types of proceedings. Because of the extent and number of 
changes being made, we propose to reissue part 302 in its entirety. The 
particular provisions proposed to be eliminated, relocated, or revised, 
and the reasons therefor are discussed for each subpart separately 
below. In general, however, the changes would include reorganizing and 
renumbering of subparts; eliminating redundancies, obsolete provisions 
or excess verbiage; and resequencing sections within subparts to place 
them in a more logical order to ``track'' the course of a particular 
type of proceeding and 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. Thus, some sections would be 
rewritten to indicate that written procedures, such as show-cause 
procedures, would generally be employed, and that if an administrative 
law judge were assigned to a case, the judge would preside over or have 
responsibility for various decisions, but that in all other cases the 
DOT decisionmaker would have such powers and responsibilities. Some 
sections would be separated or combined and titles added or revised for 
clarity and ease in locating specific provisions.
    A number of the subparts would be reordered so that the rules of 
general applicability (new Subpart A) would, as now, 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 (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) would be 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. 
Moreover, the procedures prescribed in Subpart J, if utilized, would 
subject a charter air carrier that failed to comply with the insurance 
and/or continuing fitness requirements of sections 41110(e) and 41112 
of the Statute to more severe treatment than an air carrier with 
scheduled passenger or scheduled cargo authority that failed to comply 
with these same sections of the Statute. In the interest of treating 
all certificated air carriers equally, Subpart J should be eliminated. 
We will

[[Page 5095]]

continue to have powers under the provisions of Secs. 204.7 and 302.211 
of this chapter, and sections 41104, 41110, and 41112 of the Statute to 
suspend a charter carrier's certificate when necessary.
    Subparts G, H, K, L, M, N, and P, which are currently ``reserved,'' 
would be removed.
    Two technical changes would be applicable to all subparts: (1) the 
correction of definitions and other terminology necessitated by the 
revision and recodification of the Federal Aviation Act within Subtitle 
VII of Title 49 of the United States Code (Transportation) (``the 
Statute'') by action of Pub. L. 103-272, enacted July 5, 1994; and (2) 
the correction of the obsolete title ``Assistant Secretary for Policy 
and International Affairs'' to read ``Assistant Secretary for Aviation 
and International Affairs'.
    At the time we issue a final rule in this rulemaking proceeding, we 
will also amend all rules in Chapter II containing what will then be 
incorrect references to sections in part 302.
    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 would include the addition of a definitions 
section (Sec. 302.2) which would 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. 
Thus, the definition of ``administrative law judge'' is changed to 
remove the reference to presiding officers to avoid confusion as to 
whether a presiding officer is an administrative law judge appointed 
pursuant to 5 U.S.C. 3105. The Secretary may appoint, on an ad hoc 
basis, presiding officers to govern proceedings that do not require 
administrative law judges. Appointment of a presiding officer could be 
made in an order instituting a proceeding. The definition of ``hearing 
case'' is changed to remove reference to 5 U.S.C. 556 and 557, since an 
official who is not an administrative law judge might preside over an 
oral evidentiary hearing that is not conducted pursuant to the 
Administrative Procedure Act (5 U.S.C. 551 et seq.).
    Some sections in Subpart A would be reorganized. For example, 
requirements for filing documents (Sec. 302.3) would contain provisions 
on the prohibition and dismissal of certain documents and on motions 
for leave to file otherwise unauthorized documents that are presently 
contained in the general requirements for documents (Sec. 302.4).
    Provisions would be 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) would allow for service by 
facsimile.
    The definition of ``party'' would be expanded to include any DOT 
staff designated to participate in the proceeding in an oral 
evidentiary hearing (new Secs. 302.2 and 302.10(a)).
    A provision would be added in the section on objections to the 
public disclosure of information (new Sec. 302.12) to allow limited 
disclosure of such information to the parties in a proceeding upon 
submission of affidavits by those parties swearing to protect the 
confidentiality of the documents at issue during the pendency of a 
motion to withhold.
    All of the paragraphs that pertain only to oral evidentiary 
hearings would be moved to the end of the subpart (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) would be 
revised to specify the powers of each judge and to include the 
delegation of authority to each judge to make decisions in hearing 
proceedings (current Sec. 302.27(a)).
    The section on the DOT decisionmaker (new Sec. 302.18) would be 
revised to reflect the change in title of the Assistant Secretary for 
Policy and International Affairs to Assistant Secretary for Aviation 
and International Affairs, and to reorder the text to eliminate 
duplication and to reflect that the majority of cases are decided by 
the Assistant Secretary using non-hearing proceedings.
    New sections on evidence (Sec. 302.24) and transcripts of hearings 
(Sec. 302.28) would contain provisions from current Sec. 302.24. The 
list of officially noticeable documents, included in the evidence 
section, would be updated and reorganized so that documents filed with 
or compiled by the Department, including the Federal Aviation 
Administration, would be listed first followed by documents filed with 
or compiled by other government agencies and then private organizations 
(Sec. 302.24(g)).
    The provisions now contained in the section on subpoenas (current 
Sec. 302.19(g)) governing the attendance of DOT employees and the 
production of documentary evidence in their custody at a hearing would 
be revised to state that such matters would be governed by 49 CFR Parts 
9 and 7 (new Sec. 302.25(g)).
    Provisions relating to the amount of attendance and mileage fees 
payable to witnesses in hearing cases (new Sec. 302.27(c)) would be 
simplified to remove specific dollar amounts and to specify that such 
witnesses will be paid in accordance with regulations in effect at the 
time for U.S. courts or government per diem rates. Text on the payment 
of such fees to witnesses as well as other rights of witnesses 
(currently found in paragraphs (b) and (c) of Sec. 302.11) would be 
combined in new Sec. 302.27. In addition, a separate section on 
appearances (currently in Sec. 302.11(a)) would be established (new 
Sec. 302.21).
    A provision would be added stating that one of the considerations 
for determining whether to order a ``daily transcript'' of a hearing, 
in lieu of an ``ordinary transcript'', is cost to the Department (new 
Sec. 302.29(b)(3)).
    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 would be established 
(Sec. 302.31). A provision would be 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 would be removed from this subpart if they pertain 
only to specific types of cases (e.g., Sec. 302.13, joinder of 
complaints or complainants, has been 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--would be 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 would replace and 
revise 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.
    Current Subpart I (Rules Applicable to Route Proceedings under 
Sections 401 and 402 of the Federal Aviation Act) would be eliminated. 
These rules set

[[Page 5096]]

forth procedures under which the Department may initiate route 
proceedings under sections 41102 and 41302 of the Statute (formerly 
sections 401 and 402 of the Federal Aviation Act). These procedures 
were used by the former CAB prior to the promulgation of current 
Subpart Q of this part. Today, these types of route cases are handled 
under the expedited provisions of Subpart Q rather than Subpart I 
procedures. Thus, a special set of rules applicable to route 
proceedings initiated by the Department is no longer needed.
    Current Subpart Q (Expedited Procedures for Processing Licensing 
Cases) would also be removed. These rules contain the procedures used 
for the filing and processing of applications requesting action (e.g., 
issuance, modification, transfer) involving certificates of public 
convenience and necessity or foreign air carrier permits.
    The new Subpart B would be organized to indicate more clearly what 
evidence requirements and filing and review procedures would 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 
typically applicable to initial fitness certification cases. Provisions 
pertaining solely to international route cases would be contained in 
Sec. 302.212; those pertaining to initial or continuing fitness cases 
for U.S. carriers would be found in Sec. 302.211; and those pertaining 
to foreign air carrier permit cases would be located in Sec. 302.213.
    A provision would be added (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 would 
be 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 in U.S. air carrier certificate application proceedings (new 
Sec. 302.203(b)(1)).
    We are also proposing to eliminate the separate regulatory 
procedures and time periods for responsive pleadings for certificate 
restriction removal cases (current Sec. 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 specifically allow 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.
    In most cases, the time periods for filing responsive pleadings 
would be decreased in an effort to expedite the processing of licensing 
cases (new Secs. 302.204 and 302.212) (see chart below). In this 
regard, answers to U.S. air carrier certificate applications (both 
initial fitness and international route award) and foreign air carrier 
permit applications or amendments to any of those types of applications 
would be due in 21 days, rather than 28 days. Petitions for oral 
hearing of the application would be due at the same time that answers 
to the application would be due (i.e., within 21 days), rather than 14 
days later as is currently the case for foreign air carrier permits 
(current Sec. 302.1712(c)(3)) or 24 days later (i.e., 52 days after the 
original application) as is the case for certificate cases (current 
Sec. 302.1712(c)(1)). In international route cases, conforming 
applications and/or motions to modify the scope of the proceeding would 
be due at the same time that answers are filed--within 21 days after 
the original application. Answers to conforming applications or motions 
would be due 14 days later, i.e., 35 days after the original 
application, rather than 42 days.

    Proposed Changes in Time Periods for Filing Responsive Pleadings    
------------------------------------------------------------------------
                                      Number of days from date original 
                                              application filed         
                                   -------------------------------------
                                         Current            Proposed    
------------------------------------------------------------------------
U.S. air carrier certificate                                            
 applications (both initial                                             
 fitness and international route                                        
 award) and foreign air carrier                                         
 permit applications, or                                                
 amendments to any of these:                                            
    Answers to the application....                 28                 21
    Replies to answers............                 NA                 35
    Conforming applications or                                          
     motions to modify scope......                 28                 21
    Answers to conforming                                               
     applications or motions to                                         
     modify scope.................                 42                 35
    Petitions for oral hearing of                                       
     application:                                                       
        Certificate cases.........                 52                 21
        Foreign air carrier                                             
         permits..................                 42                 21
Restriction removal cases:                                              
    Answers to application........                 14                 21
    Conforming applications.......            14 days                 21
    Answers to conforming                                               
     applications.................               XL28                 35
    Petitions for oral hearing of                                       
     application..................                 35                 21
------------------------------------------------------------------------

    The time period for the Department to defer further processing of 
an incomplete application (current Sec. 302.1713) would be increased 
from 21 to 28 days to allow for the review of any answers filed in 
response to the application (new Sec. 302.209).
    With respect to DOT's issuance of an order establishing further 
procedures, the only change would be to specify that, in U.S. air 
carrier certificate cases, the order would 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 (as contained in 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

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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) 
would be reorganized to reflect the current practices employed in the 
majority of application cases of using show-cause procedures or 
dismissing the application by final order, rather than instituting an 
oral evidentiary hearing.
    A provision would be added to current Sec. 302.1757 to clarify that 
if the DOT decisionmaker did not act within 90 days of the issuance of 
an initial decision by an administrative law judge, that decision would 
become the final decision of the Department (new Sec. 302.220(b)(2)).
    In addition, current Sec. 302.1760, which pertains to internal 
procedures of the Department, would be eliminated as unnecessary.
    Subpart C--Rules Applicable to Exemption Proceedings would replace 
and revise current Subpart D, which sets forth procedural standards for 
U.S. and foreign air carriers to follow in applying for exemption 
authority under section 40109 of the Statute. It adds proceedings for 
slot exemptions at high density airports under section 41714 of the 
Statute to its scope. It also gives needed guidance to U.S. and foreign 
air carrier applicants on the specific information they must file.
    In new Subpart C, new Sec. 302.302(b) would revise 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) would permit the filing of exemption requests by 
facsimile and electronic mail (when available), and new Sec. 302.302(e) 
(current Sec. 302.401(e)) would be revised to reflect our present 
practice of omitting applicants' addresses when publishing notices of 
exemption applications filed. Also, the word ``undue'' would be 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 would 
replace and revise current Subpart B, which contains the specific rules 
governing enforcement actions, or proceedings by which the Department 
enforces the aviation economic provisions of the Statute and the rules, 
regulations, 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 would be added to new Subpart D (new 
Sec. 302.402).
    In addition, various sections would be combined, separated or 
retitled for purposes of clarity. Thus, a separate section on informal 
complaints would be established (new Sec. 302.403), and the section on 
formal complaints would be 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). A section on responsive documents (new Sec. 302.405) 
would contain provisions from current Sec. 302.204, and a section on 
procedure for responding to formal complaints (new Sec. 302.406) would 
contain provisions from current Secs. 302.205 and 302.206.
    The requirement that action must be taken on a formal complaint 
within 60 days of its filing would be eliminated, leaving in place the 
provision that such action would be taken ``within a reasonable time'' 
(new Sec. 302.406).
    The section on commencement of enforcement proceedings (new 
Sec. 302.407) would include provisions from current Secs. 302.206 and 
302.206a; the section on answers and replies (new Sec. 302.408) would 
contain provisions from current Secs. 302.207 and 302.209; and current 
Sec. 302.212 on admissions as to facts and motions to dismiss would be 
divided into two sections (new Secs. 302.411 and 302.412).
    The term ``third-party complaint'' used throughout would be 
replaced with ``formal complaint,'' and the ``saving clause'' from 
Subpart A (current Sec. 302.40) would be moved to this subpart 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 would revise current 
Subpart E, which contains special rules for proceedings relating to 
prices 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 E would be amended to add ``for Foreign 
Air Transportation'' to clarify that these rules do not apply to rates, 
fares and charges in interstate transportation.
    New Sec. 302.506(d) would permit, in emergency situations, the 
filing of complaints requesting the suspension of a tariff by facsimile 
and electronic mail (when available), but would require that the filing 
be confirmed in writing within three business days.
    Current Sec. 302.506 would be 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. 
Similarly, complainants challenging tariffs on the ground of ``unjust 
discrimination'' now must make a prima facie case of unlawfulness. 
Thus, the subsection is misleading and should be eliminated entirely 
because specific evidentiary burdens are normally discussed at 
prehearing conferences, and nonhearing evidentiary matters can be 
resolved in an instituting order.
    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 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 only recently adopted (in February 1995), it 
would not be revised at this time 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) would be changed to Sec. 302.32(a), and in 
Sec. 302.603 an additional reference to Sec. 302.4 concerning the form 
of documents would be added). In addition, since at the time of the 
adoption of Subpart F, references to that subpart were not added to the 
index in Appendix A, those references would be added at this time.
    Subpart G--Rules Applicable to Mail Rate Proceedings and Contracts 
would combine, replace and revise 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

[[Page 5098]]

section 41901 of the Statute. These are the rates paid by the United 
States Postal Service to U.S. carriers for the transportation of U.S. 
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 by air between the U.S. Postal Service and 
certificated air carriers pursuant to 39 U.S.C. 5402(a).
    In new Subpart G, current references to actions by ``the 
Department'' or ``DOT'' would be changed to ``DOT decisionmaker'' to 
differentiate from actions by an administrative law judge in an oral 
evidentiary hearing, and current Secs. 302.304 and 302.309 would be 
combined into new Sec. 302.703 to reflect that the DOT decisionmaker 
may either issue an order to show cause or set a matter for oral 
hearing before an administrative law judge.
    Certain sections also would be revised to allow the DOT 
decisionmaker additional flexibility in dealing with specific cases. 
Thus, current Sec. 302.305(a) would be revised to allow for answers to 
show cause orders within 10 days ``or within such other period as the 
order may specify'' (new Sec. 302.704(a)); and current Sec. 302.307 
would be 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 at any hearing that is instituted to be formulated by the 
instituting order (new Sec. 302.706(a)).
    The provisions of current Secs. 302.306 and 302.307 would be 
combined into new Sec. 302.705 covering further procedures, and current 
Secs. 302.301, 302.302, 302.307, and 302.308 would be combined into new 
Sec. 302.706 entitled Hearing.
    Current Secs. 302.311 and 302.321 would be combined into new 
Sec. 302.708. The provisions of paragraphs (a) and (b) of current 
Sec. 302.1503 would be eliminated as unnecessary, and new Sec. 302.719 
would refine and condense the data required to reflect current 
practice.
    The subject index contained in Appendix A--Index to Rules of 
Practice would be 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 would list for each subject both the 
current section number(s) and the corresponding new section number(s).

Executive Order 12866 (Regulatory Planning and Review)

    The Department has analyzed the economic and other effects of the 
proposed 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.

DOT Regulatory Policies and Procedures

    The proposed 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 proposed action on small entities, 
i.e., those air carriers operating small aircraft (60 seats or less or 
18,000 pounds maximum payload or less) in strictly domestic service. 
The proposed changes to the Department's Rules of Practice in 
Proceedings would merely eliminate unnecessary and obsolete verbiage, 
reorganize the provisions and bring them up to date with our current 
practice, and would not place any new requirements on applicants. 
Moreover, these rules generally are not applicable to proceedings 
involving such small entities. Therefore, the Department certifies that 
the amendment would not have a significant economic impact on a 
substantial number of small entities.

Executive Order 12612 (Federalism)

    This proposed 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 this proposed amendment for the 
purpose 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 proposed amendment.

List of Subjects

14 CFR Part 300

    Administrative practice and procedure, Conflict of interests.

14 CFR Part 302

    Administrative practice and procedure, Air carriers, Foreign air 
carriers.

Proposed Rule

    For the reasons set out in the preamble, Title 14, Chapter II of 
the Code of Federal Regulations is proposed to be amended as follows:

PART 300--[AMENDED]

    1. The authority citation for part 300 continues 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.

    2. 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 must file a motion supported by an 
affidavit setting forth the grounds for such disqualification in

[[Page 5099]]

the form and within the periods prescribed in Sec. 302.11. 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.

PART 302--[REVISED]

    3. 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 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.
302.603  Complaint by an air carrier or foreign air carrier; request 
for determination by an airport owner or operator.
302.605  Contents of complaint or request for determination.
302.607  Answers to a complaint or request for determination.
302.609  Replies.
302.611  Review of complaints.
302.613  Review of requests for determination.
302.615  Decision by administrative law judge.
302.617  Petitions for discretionary review.
302.619  Completion of proceedings.
302.621  Final order.
Subpart G--Rules Applicable to Mail Rate Proceedings and 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.

[[Page 5100]]

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 
Transporation

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--Index to Rules of Practice

    Authority: 5 U.S.C. 551 et seq., 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.
    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.
    (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 10:00 a.m. and 5:00 p.m., Monday to Friday, 
inclusive, except on legal holidays.
    (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 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. (1) Unless otherwise specified, an executed 
original, along with the number of true copies set forth in this 
paragraph 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.

------------------------------------------------------------------------
                                                                 Copies 
------------------------------------------------------------------------
Airport Fees.................................................          9
Agreements:                                                             
    International Air Transport Association (IATA)...........          6

[[Page 5101]]

                                                                        
    Other (under 49 U.S.C. 41309)............................          9
Complaints:                                                             
    Enforcement..............................................          5
    Mail Contracts...........................................          4
    Rates, Fares and Charges in Foreign Air Transportation...          6
    Unfair Practices in Foreign Air Transportation...........          7
Employee Protection Program (14 CFR 314).....................          7
Exemptions:                                                             
    Computer Reservations Systems (14 CFR 255)...............          8
    Slot Exemptions (under 49 U.S.C. 41714)..................          7
    Tariffs (under 49 U.S.C. Chapter 415 or 14 CFR 221)......          5
    Other (under 49 U.S.C. 40109)............................          7
Foreign Air Carrier Permits/Exemptions.......................          7
International Authority for U.S. Air Carriers (certificates,            
 exemptions, allocation of limited frequencies or charters)..          7
Mail Rate Proceedings........................................          4
Name Change/Trade Name Registrations.........................          4
Suspension of Service (14 CFR 323)...........................          4
Tariff Justifications to exceed Standard International Fare             
 Level.......................................................          6
U.S. Air Carrier Certificates (involving Initial or                     
 Continuing Fitness).........................................          6
Other matters................................................          3
------------------------------------------------------------------------

    (2) Filers are encouraged to submit one of the required true copies 
(except for counterparts of Agreement CAB 18900) in electronic form on 
a 3\1/2\ inch floppy disk, labeled to show the filer's and 
representative's names, docket number (if known) or space for it, and 
document title. The electronic submission must be in one of the 
following formats: Microsoft Word (or RTF), WordPerfect, Excel, Lotus 
123, or ASCII text. The disk must be accompanied by a signed 
certification that it is a true copy of the executed original document.
    (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 Sec. 302.7, 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) 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) Such motions must 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.
    (f) Official docket copy. With respect to all documents filed under 
this part that are scanned, the electronic scanned 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.
    (g) Retention of documents by the Department. All documents filed 
with or presented to the Department may be retained in the files of 
Department of Transportation Dockets. However, the Department may 
permit the withdrawal of original documents by motion upon the 
submission of properly authenticated copies to replace such documents.


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 Environmental Assessment, 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.
    Department of Transportation Dockets has an Expedited Processing 
Sheet that

[[Page 5102]]

filers can use to assist in preparing this index.
    (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) Subscription. Every application, petition, complaint, motion or 
other authorized or required document must be signed by the party 
filing the same, or by a duly authorized officer or the attorney-at-law 
of record of such party, or by any other person so authorized. The 
signature of the person signing the document constitutes a 
certification that he or she has read the document; that to the best of 
his or her knowledge, information, and belief every statement contained 
in the document is true and no such statements are misleading; and that 
the document is not interposed for delay.


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, no 
reply to an answer, reply to a reply, or any further responsive 
document shall be filed. Where such further responsive documents are 
not permitted, all new matter contained in an answer filed pursuant to 
paragraph (a) of this section shall be deemed controverted.
    (c) Time for filing. Except as otherwise provided, an answer or any 
further responsive document shall be filed within seven (7) days after 
service of the document to which such responsive filing is directed.


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 such as to permit compliance with 
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.
    (3) An acknowledgment of service signed by a person receiving 
service personally, or a certificate of the person making personal 
service.
    (f) Date of service. Whenever proof of service by post office or 
electronic mail is made, the date of mailing shall be the date of 
service. 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 proceedings where service is otherwise required, and 
shall be in addition to any other service required by this chapter.
    (h) Alaska Proceedings. In any proceeding that affects a point in 
Alaska, the person filing shall send an additional copy to: U.S. 
Department of Transportation, Alaska Field Office, 801 B Street, Suite 
506, Anchorage, Alaska 99501-3657.


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.

[[Page 5103]]

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 appropriate 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 direct 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 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)
    (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

[[Page 5104]]

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 ``Classified or 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 ``Classified or 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) A description of the information sought to be withheld, 
sufficient for identification of the same;
    (ii) A statement explaining how and why the information falls 
within 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 (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 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

[[Page 5105]]

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, or a final 
decision described in Sec. 302.220, 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, Secs. 302.17 through 302.37, relating to hearing procedures, 
shall not be applicable except to the extent that the DOT decisionmaker 
shall determine that the application of some or all of such rules in 
the particular case will be conducive to the proper dispatch of its 
business and to the ends of justice. 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):

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 
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

[[Page 5106]]

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 and will be issued within 14 days after the decision of the 
senior career official is adopted. Unless a notice of review is issued, 
the decision of the senior career official will be issued as a final 
decision of the Department.
    (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) (2) and (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 ends of justice 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.


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

[[Page 5107]]

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) Evidence presented 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 addition to 
an official 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 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

[[Page 5108]]

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:

    1. Air carrier certificates or applications therefor, together 
with any requests for amendment, and pleadings responding to 
applications when properly filed.
    2. All Form 41 reports required to be filed by air carriers with 
the Department.
    3. Reports of Traffic and Financial Data of all U.S. Air 
Carriers issued by the Civil Aeronautics Board (CAB) or the 
Department.
    4. 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.
    5. 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.
    6. 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.
    7. All tariffs, including the electronic versions, and 
amendments thereof, of all air carriers, on file with the 
Department.
    8. 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.
    9. Airport Activity Statistics of Certificated Air Carriers 
compiled and published by the Federal Aviation Administration (FAA) 
or the Department.
    10. Air Traffic Activity Data issued by the FAA.
    11. National Plan of Integrated Airport Systems (NPIAS) issued 
by the FAA.
    12. Airport Facilities Directory, Form 5010, issued by the FAA.
    13. The Airman's Information Manual issued by the FAA.
    14. 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.
    15. Monthly, quarterly and annual reports of the Immigration and 
Naturalization Service, U.S. Department of Justice.
    16. All forms and reports required by the U.S. Postal Service to 
be filed by air carriers authorized to transport mail.
    17. All orders of the Postmaster General designating schedules 
for the transportation of mail.
    18. 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.
    19. ABC World Airways Guide and all Official Airline Guides, 
including the North American, Worldwide, All-Cargo and quick 
reference editions, including electronic versions.
    20. Official Guide of the Railways and Russell's Official 
National Motor Coach Guide.
    21. The Rand McNally Commercial Atlas and Marketing Guide, and 
the Rand McNally Road Atlas, United States, Canada, and Mexico.
    22. 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, 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

[[Page 5109]]

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 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

[[Page 5110]]

submitted or a copy of any transcript made of such testimony.
    (c)(1) 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 paragraph (c)(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.
    (2)(i) 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.
    (ii) 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 full 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.


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

[[Page 5111]]

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 orders 
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 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

[[Page 5112]]

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. The DOT 
decisionmaker may also, in rulemaking proceedings, omit a tentative 
decision in any case in which he or she finds upon the record that due 
and timely execution of the Department's functions imperatively and 
unavoidably so requires. 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.
    (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

[[Page 5113]]

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 Secs. 302.29 through 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 subpart.
    (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 
Environmental Evaluation 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, 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. In any proceeding that affects a point in Alaska, the person 
filing shall send an additional copy to: U.S. Department of 
Transportation, Alaska Field Office, 801 B Street, Suite 506, 
Anchorage, Alaska 99501-3657.


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.

[[Page 5114]]

    (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.

    The following certification shall be included with any pleading 
filed under this subpart: ``Pursuant to Title 18 United States Code 
Section 1001, I [the individual signing the pleading, who shall be 
someone who will appear as a witness to substantiate the facts asserted 
if an oral hearing becomes necessary] in my individual capacity and as 
the authorized representative of the submitter, have not in any manner 
knowingly or willfully falsified, concealed, or covered up any material 
fact or made any false, fictitious, or fraudulent statement or 
knowingly used any documents that contain such statements in connection 
with the preparation, filing, or prosecution of this pleading. I 
understand that a submitter who violates the provisions of 18 U.S.C. 
1001 shall be fined not more than $10,000 or imprisoned not more than 
five years, or both.''

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 Secs. 302.211, 302.212 
and 302.213.
    (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 Department 
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 Secs. 302.214 through 302.218 will 
apply unless the DOT decisionmaker decides otherwise.
    (5) Begin to make a determination with respect to the application 
under simplified procedures without oral evidentiary hearing. In this 
event, the DOT decisionmaker may indicate which, if any, of the 
procedural steps set forth in 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.
    (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

[[Page 5115]]

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, amend, or transfer 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, 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 the Department of State and the 
Federal Aviation Administration's evaluation of the applicant's 
operational fitness shall be relied upon 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 Department 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 Secs. 302.17 through 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 Department 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 adopted and 
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 of an administrative law judge, any party may file 
exceptions to the decision with the Department.
    (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 
adopted and 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

[[Page 5116]]

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 advised 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 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. 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 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 (part 
221 of this chapter) 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 Exemption,'' and 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 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 perjury, 
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

[[Page 5117]]

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 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) Except for an application for exemption from chapter 415 of the 
Statute, an applicant shall serve on the persons listed in paragraph 
(b) of this section a notice that the application has been filed, and, 
upon request, shall promptly provide those persons with copies of the 
application and any supporting documents. (Applicants filing OST Form 
4536 may serve a copy of the form instead of a notice.) The notice must 
clearly state the authority sought, the due date for responsive 
pleadings, and that copies of the application will be supplied upon 
request. Responsive pleadings shall be filed in the same manner and 
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, 41305 or 40109 of the Statute.
    (2) Applicants for scheduled foreign air transportation authority 
shall serve
    (i) 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,
    (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 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.
    (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, an 
applicant 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.


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

[[Page 5118]]

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) Applications. (1) 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 Secs. 302.3 and 302.4, concerning the form and 
filing of documents. The filing of a complaint shall result in the 
institution of an enforcement proceeding only if the Assistant General 
Counsel issues a notice instituting such a proceeding as to all or part 
of the complaint under 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. 302.12.
    (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 complaint shall not excuse the 
filing of an answer.
    (c) Motions to dismiss a formal complaint shall not be fileable 
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,

[[Page 5119]]

the Assistant General Counsel shall either issue a notice instituting a 
formal enforcement proceeding in accordance with Sec. 302.407, or 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 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

[[Page 5120]]

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 
Secs. 302.17 through 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 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

[[Page 5121]]

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. Sec. 302.17 through 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 the issued or posting date, to the effective date, 
to the name of the publishing carrier or agent, to the Department 
number, and to 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 provided in this section, 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, 
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 air carrier or foreign air 
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 has imposed a fee on an air 
carrier or foreign air 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 air carriers 
or foreign air carriers 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.


Sec. 302.603  Complaint by an air carrier or foreign air carrier; 
request for determination by an airport owner or operator.

    (a) Any air carrier or foreign air 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 air carriers. The 
complaint or request for determination shall conform to the 
requirements of this subpart and Secs. 302.3 and Sec. 302.4 concerning 
the form and filing of documents.
    (b) If an air carrier or foreign air 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 Secs. 302.611 and 302.613.


Sec. 302.605  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 available to the carrier 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.
    (b) All exhibits and briefs prepared on electronic spreadsheet or 
word processing programs should be accompanied by standard-format 
computer diskettes containing those submissions. Word processing and 
spreadsheets files must be readable by current versions of one or more 
of the following programs, or in such other format as may be specified 
by notice in the Federal Register: Microsoft Word, Word Perfect, Ami 
Pro, Microsoft Excel, Lotus, Quattro Pro, or ASCII tab-delineated 
files. Parties should submit one copy of each diskette to the docket 
section, one copy to the office of the Chief Administrative Law Judge 
(M-50), and one copy to the Chief, Economic and Financial Analysis 
Division (X-55),

[[Page 5122]]

of 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 submit the 
following certifications:
    (1) The carrier has served the complaint, brief, and all supporting 
testimony and exhibits on the airport owner or operator and all other 
air carriers and foreign air carriers serving the airport by hand, by 
electronic transmission, or by overnight express delivery. (Unless an 
air carrier or foreign air 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) The parties served have received the complaint, brief, and all 
supporting testimony and exhibits or will receive them no later than 
the date the complaint is filed;
    (3) The carrier has previously attempted to resolve the dispute 
directly with the airport owner or operator;
    (4) 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
    (5) 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 submit the following certifications:
    (1) The airport owner or operator has served the request, brief, 
and all supporting testimony and exhibits on all air carriers and 
foreign air carriers serving the airport by hand, by electronic 
transmission, or by overnight express delivery. (Unless the air carrier 
or foreign air carrier has informed the airport owner or operator 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) The carriers served have received the request, brief, and all 
supporting testimony and exhibits or will receive them no later than 
the date the request is filed;
    (3) The airport owner or operator has previously attempted to 
resolve the dispute directly with the carriers; and
    (4) 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. 302.607  Answers to a complaint or request for determination.

    (a)(1) When an air carrier or foreign air carrier files a complaint 
under this subpart, the owner or operator of an airport and any other 
air carrier or foreign air 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 air 
carrier or foreign air 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. 302.603(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. Word processing and 
spreadsheets files must be readable by current versions of one or more 
of the following programs, or in such other format as may be specified 
by notice in the Federal Register: Microsoft Word, Word Perfect, Ami 
Pro, Microsoft Excel, Lotus, Quattro Pro, or ASCII tab-delineated 
files. Parties should submit one copy of each diskette to the docket 
section, one copy to the office of the Chief Administrative Law Judge 
(M-50), and one copy to the Chief, Economic and Financial Analysis 
Division (X-55), of the Office of Aviation Analysis. Filers should 
ensure that files on the diskettes are unalterably locked.
    (e) The answering party must also submit the following 
certifications:
    (1) The answering party 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;
    (2) The parties served have received the answer and exhibits or 
will receive them no later than the filing date of the answer; and
    (3) 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. 302.609  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. Word processing and 
spreadsheets files must be readable by current versions of one or more 
of the following programs, or in such other format as may be specified 
by notice in the Federal Register: Microsoft Word, Word Perfect, Ami 
Pro, Microsoft Excel, Lotus, Quattro Pro, or ASCII tab-delineated 
files. Parties should submit one copy of each diskette to the docket 
section, one copy to the office of the Chief Administrative Law Judge 
(M-50), and one copy to the Chief, Economic and Financial Analysis 
Division, (X-55) of the Office of Aviation Analysis. Filers should 
ensure that files on the diskettes are unalterably locked.
    (e) The carrier or airport owner or operator submitting the reply 
must certify that it has served the reply and

[[Page 5123]]

all supporting testimony and exhibits on the party or parties 
submitting the answer to which the reply is directed 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. 302.611  Review of complaints.

    (a) Within 30 days after a complaint is filed under this subpart, 
the Secretary will determine whether the complaint 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.
    (b) If the Secretary determines that a significant dispute exists, 
he or she will issue an instituting order assigning the complaint 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) The Secretary will dismiss any complaint if he or she finds 
that no significant dispute exists. The order dismissing the complaint 
will contain a concise explanation of the reasons for the determination 
that the dispute is not significant.
    (d) If the Secretary determines that the complaint does not meet 
the procedural requirements of this subpart, the complaint 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 may be filed.


Sec. 302.613  Review of requests for determination.

    (a) Except as provided in paragraph (e) of this section, within 30 
days after an airport owner or operator files a request for 
determination of the reasonableness of a fee under this subpart, the 
Secretary will determine whether the request meets the procedural 
requirements of this subpart and whether a significant dispute exists.
    (b) If the Secretary determines that a significant dispute exists, 
he or she will issue an instituting order assigning the request for 
hearing before an administrative law judge. The instituting order will 
establish the scope of the issues to be considered and the procedures 
to be employed and will indicate the parties to participate in the 
hearing. The instituting order will consolidate into a single 
proceeding all complaints and any request for determination with 
respect to the fee or fees in dispute.
    (c) If the Secretary finds that the request for determination 
presents no significant dispute, the Secretary will either issue a 
final order as provided in Sec. 302.621 or set forth the schedule for 
any additional procedures required to complete the proceeding.
    (d) If the Secretary determines that the request does not meet the 
procedural requirements of this subpart, the request for determination 
will be dismissed without prejudice to filing a new request. The order 
of the Secretary will set forth the terms and conditions under which a 
revised request may be filed.
    (e) 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 within 30 days after the complaint is filed.


Sec. 302.615  Decision by administrative law judge.

    The administrative law judge shall issue a decision recommending a 
disposition of a complaint or request for determination within 60 days 
after the date of the instituting order, unless a shorter period is 
specified by the Secretary.


Sec. 302.617  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 submit the following 
certifications:
    (1) The petitioner has served the petition by hand, by electronic 
transmission, or by overnight express delivery on all parties to the 
proceeding; and
    (2) The parties served have received the petition or will receive 
it no later than the date the petition 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. 302.619  Completion of proceedings.

    (a) When a complaint 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 is filed.
    (b) When a request for determination 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 date the request for determination is filed.
    (c) 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. 302.621  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 Procedings and Contracts


Sec. 302.701  Applicability.

    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. Such contracts must be for the transportation of at least 750 
pounds of

[[Page 5124]]

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.


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 a notice of objection within ten (10) days after the date 
of service of such order or within such other period as the order may 
specify.
    (b) If such 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. 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) A notice or 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 notice, or, if after notice, 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 all of the 
documents filed 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) Issues. 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) Parties and persons other than parties. (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 notice of objection 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) Evidence. 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 
Secs. 302.17 through 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

[[Page 5125]]

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' 
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 regarding the future course of action or 
position of the Department or its employees with respect to the facts 
or issues discussed at the 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.
    (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 section and promises to abide by it and 
advise any other participant to whom he or she discloses any 
confidential information of the restrictions imposed in paragraph (a) 
of this section. 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 in paragraph (a) of this 
section, shall be presumed to have come into possession of information 
obtained at the conference knowing that such information was subject to 
the restrictions imposed in paragraph (a) of this section; 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)(1) Persons subject to the provisions of this section. For the 
purposes of this section, participants shall include
    (i) Any representative of any air carrier and any representative of 
the U.S. Postal Service actually present at the conference;
    (ii) The directors and the officers of any air carrier that had a 
representative at the conference;
    (iii) The members of any firm of attorneys or consultants that had 
a representative at the conference; and
    (iv) 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.
    (2) Restrictions on disclosure of confidential information and 
dealing in air carrier securities are imposed upon the DOT employees 
pursuant to applicable law.


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

[[Page 5126]]

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 conducted under the 
provisions of this subpart, 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.


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                              
----------------------------------------------------------------------------------------------------------------
             Subject                            Current rule                           Proposed 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)                   

[[Page 5127]]

                                                                                                                
    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 report.  Sec.  302.23(b)                         Sec.  302.22(c)                      
    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.  302.615                        
     decision.                                                                                                  
    Complaints by U.S. or foreign  Sec.  302.603(a)                        Sec.  302.603(a)                     
     air carriers.                                                                                              
        Answers..................  Sec.  302.607                           Sec.  302.607                        
        Additional complaints....  Sec.  302.603(b)                        Sec.  302.603(b)                     
        Contents.................  Sec.  302.605                           Sec.  302.605                        
        Format of exhibits and     Sec.  302.605(b)                        Sec.  302.605(b)                     
         briefs.                                                                                                
        Service..................  Sec.  302.605(c)(1)                     Sec.  302.605(c)(1)                  
        Replies..................  Sec.  302.609                           Sec.  302.609                        
    Consolidation of proceedings.  Sec.  302.603(c)                        Sec.  302.603(c)                     
    Dismissal....................  Sec.  302.611 (c), (d)                  Sec.  302.611 (c), (d)               
    Final order..................  Sec.  302.621                           Sec.  302.621                        
        Timing...................  Sec.  302.619                           Sec.  302.619                        
    Instituting order............  Sec.  302.611(b)                        Sec.  302.611(b)                     
    Petitions for discretionary    Sec.  302.617                           Sec.  302.617                        
     review.                                                                                                    
        Answers..................  Sec.  302.617(c)                        Sec.  302.617(c)                     
    Request for determination by   Sec.  302.603(a)                        Sec.  302.603(a)                     
     airport owner/operator.                                                                                    
        Answers..................  Sec.  302.607                           Sec.  302.607                        
        Contents.................  Sec.  302.605                           Sec.  302.605                        
        Format of exhibits and     Sec.  302.605(b)                        Sec.  302.605(b)                     
         briefs.                                                                                                
        Service..................  Sec.  302.605(d)(1)                     Sec.  302.605(d)(1)                  
        Replies..................  Sec.  302.609                           Sec.  302.609                        
    Review procedures............  Sec.  302.611                           Sec.  302.611                        
    Significant dispute            Sec.  302.611(b)                        Sec.  302.611(b)                     
     determination.                                                                                             
AMENDMENTS OF DOCUMENTS (see                                                                                    
 Documents)                                                                                                     
ANSWERS (see also Replies):                                                                                     
    Airport fees.................  Sec.  302.607                           Sec.  302.607                        
    Certificate applications:                                                                                   
        Initial fitness..........  Sec.  302.1730(c)                       Sec.  302.204                        
        International route                                                                                     
         awards:                                                                                                
            Conforming             Sec.  302.1720(d)                       Sec.  302.212(d)                     
             applications.                                                                                      
            Motions to modify      Sec.  302.1720(e)                       Sec.  302.212(d)                     
             scope.                                                                                             
            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.  302.607                        
        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,        Sec.  302.207                           Sec.  302.408                        
     notice 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       Sec.  302.303                           Sec.  302.702(e)                     
     rates.                                                                                                     
    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)                      

[[Page 5128]]

                                                                                                                
        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            Sec.  302.11(a)                         Sec.  302.21(c)                      
         practicing before DOT.                                                                                 
    Amendment....................  Sec.  302.5                             Sec.  302.5                          
    Certificates for               Secs.  302.1701-1713, 1720              Secs.  302.201-206                   
     international route awards.                                                                                
        Conforming applications..  Sec.  302.1720(c)                       Sec.  302.212(c)                     
    Certificates involving         Secs.  302.1701-1713, 1730              Secs.  302.201-206                   
     initial fitness.                                                                                           
    Consolidation................  Sec.  302.12                            Sec.  302.13                         
    Exemptions...................  Secs.  302.401-405                      Secs.  302.302-304                   
    Exemptions, emergency........  Sec.  302.410 (b), (c)                  Sec.  302.311                        
    Foreign Air Carrier Permits..  Secs.  302.1701-1713,1740               Secs.  302.201-206                   
    Licensing cases..............  Secs.  302.1701-1790                    Secs.  302.201-206                   
ARGUMENT:                                                                                                       
    Before Administrative Law      Sec.  302.25                            Sec.  302.29                         
     Judge.                                                                                                     
    Oral (see Oral Arguments)                                                                                   
ATTENDANCE FEES AND MILEAGE        Sec.  302.21                            Sec.  302.27(c)                      
 BRIEFS.                                                                                                        
    Accompanying motions or        Sec.  302.18(d)                         Sec.  302.11(d)                      
     answers.                                                                                                   
    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.  302.1752, 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                        
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       Sec.  302.1751-1757                     Secs.  302.214-220                   
     proceedings.                                                                                               
        Petition for.............  Sec.  302.1712(b)                       Sec.  302.208                        
CERTIFICATION:                                                                                                  
    Documents....................  Sec.  302.4(b)                          Sec.  302.3(d)                       
    Record.......................  Secs.  302.22(d), 27, 29                Sec.  302.31(b)                      
CHARGES (see Rates, Fares, and                                                                                  
 Charges; Airport Fees)                                                                                         
CITATION OF RULES................  Sec.  302.2                             Sec.  302.1(c)                       
CIVIL PENALTIES..................  Sec.  302.206(a)                        Sec.  302.407 (d), (e)               
COMPLAINANTS, JOINDER............  Sec.  302.13                            Sec.  302.404(d)                     
COMPLAINTS:                                                                                                     
    Airport fees.................  Secs.  302.603-605                      Secs.  302.603-605                   
    Contracts for transportation   Secs.  302.1505-1507                    Sec.  302.721                        
     of 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      Sec.  302.16                            Sec.  302.8                          
 Time).                                                                                                         
CONSOLIDATION OF PROCEEDINGS.....  Sec.  302.12                            Sec.  302.13                         
    Airport fees.................  Sec.  302.603(c)                        Sec.  302.603(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     Secs.  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                         

[[Page 5129]]

                                                                                                                
        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............  Sec.  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)                      Sec.  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.....................  Sec.  302.24(g)                         Sec.  302.24(g)                      
                                                                           Sec.  302.24(c)                      
    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           Sec.  302.39(b)                         Sec.  302.12                         
     disclosure.                                                                                                
    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(g)                       
    Service (see Service)                                                                                       
    Table of contents/Index......  Sec.  302.3(d)                          Sec.  302.4(a)(3)                    
    Unauthorized.................  Sec.  302.4(f)                          Sec.  302.3(e)                       
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                           Sec.  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.  302.28                            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                        

[[Page 5130]]

                                                                                                                
    Evidence of previous           Sec.  302.216                           Sec.  302.413                        
     violations.                                                                                                
    Generally....................  Secs.  302.200-217                      Secs.  302.401-420                   
    Hearings.....................  Sec.  302.213                           Sec.  302.415                        
    Modification or dissolution    Sec.  302.218                           Sec.  302.419                        
     of 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.....................  Sec.  302.24 (g),(h)                    Sec.  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                        
        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)                         Sec.  302.24 (c),(d)                 
FARES (see Rates, Fares, and                                                                                    
 Charges)                                                                                                       
FEES (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                          Sec.  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       Secs.  302.1751-1757                    Secs.  302.214-220                   
     proceedings.                                                                                               
    Petition for.................  Sec.  302.1712(b)                       Sec.  302.208                        
HEARINGS:                                                                                                       
    Airport fee dispute            Sec.  302.611(b)                        Sec.  302.611(b)                     
     proceedings.                                                                                               
    Argument before                Sec.  302.25                            Sec.  302.29                         
     Administrative Law Judge.                                                                                  
    Change in rates, fares, or     Sec.  302.506                           Sec.  302.706                        
     charges.                                                                                                   
    Consolidated (see                                                                                           
     Consolidation of                                                                                           
     Proceedings)                                                                                               
    Documents of partial           Sec.  302.24(i)                         Sec.  302.24(e)                      
     relevance.                                                                                                 
    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                        

[[Page 5131]]

                                                                                                                
    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    Sec.  302.408                           Sec.  302.309                        
     for exemption.                                                                                             
    Shortened procedure..........  Sec.  302.35                            Sec.  302.15                         
    Transcripts..................  Sec.  302.24 (l), (m)                   Sec.  302.28                         
INITIAL DECISION:                                                                                               
    Answer in support or           Sec.  302.28(b)                         Sec.  302.32(b)                      
     opposition.                                                                                                
    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...  Sec.  302.1505-1507                     Sec.  302.721-723                    
    Data supporting contract.....  Sec.  302.1503                          Sec.  302.719                        
    Explanation of contract......  Sec.  302.1503                          Sec.  302.719                        
    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        Sec.  302.317                           Sec.  302.714                        
     Postal 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           Sec.  302.319                           Sec.  302.716                        
     agreements.                                                                                                
    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      Sec.  302.305                           Sec.  302.704                        
     show cause order.                                                                                          
    Order to show cause..........  Sec.  302.303                           Sec.  302.703                        
    Parties and persons other      Sec.  302.301, 302                      Sec.  302.706(b)                     
     than parties.                                                                                              
MILEAGE FEES.....................  Sec.  302.21                            Sec.  302.27(c)                      
MODIFICATION OF ENFORCEMENT        Sec.  302.218                           Sec.  302.419                        
 ACTION.                                                                                                        
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)                      

[[Page 5132]]

                                                                                                                
    For suspension of operating    Sec.  302.217                           Sec.  302.418                        
     authority pendente lite.                                                                                   
    For modification or            Sec.  302.218                           Sec.  302.419                        
     dissolution 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           Sec.  302.4(f)                          Sec.  302.3(e)                       
     documents.                                                                                                 
    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   Sec.  302.39(b), (e), (f)               Sec.  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        Sec.  302.611 (c), (d)                  Sec.  302.611 (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           Sec.  302.1750                          Sec.  302.210                        
     procedures (Licensing cases).                                                                              
    Final........................  Sec.  302.36                            Sec.  302.38                         
        Airport fee dispute        Sec.  302.621                           Sec.  302.621                        
         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.  302.611(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,        Sec.  302.502(a)                        Secs.  302.502-503                   
     fares, 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                        
    Purpose......................  Sec.  302.23(a)                         Sec.  302.22(a)                      

[[Page 5133]]

                                                                                                                
    Report of....................  Sec.  302.23(b)                         Sec.  302.22(c)                      
    Scope........................  Sec.  302.23(a)                         Sec.  302.22(a)                      
PROCEEDINGS:                                                                                                    
    Airport fee dispute            Secs.  302.601-621                      Secs.  302.601-621                   
     proceedings.                                                                                               
    Consolidation of (see                                                                                       
     Consolidation)                                                                                             
    Contemporaneous consideration                                                                               
     (see Consolidation)                                                                                        
    Enforcement..................  Secs.  302.200-217                      Secs.  302.401-420                   
    Exemption....................  Secs.  302.400-410                      Secs.  302.301-311                   
    Licensing cases..............  Secs.  302.1701-1790                    Secs.  302.201-220                   
    Mail rate....................  Secs.  302.300-321                      Secs.  302.701-717                   
    Rates, fares, and charges....  Secs.  302.500-508                      Secs.  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.  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           Sec.  302.28(b)                         Sec.  302.32(b)                      
     opposition.                                                                                                
    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)                   
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            Sec.  302.609                           Sec.  302.609                        
     proceedings.                                                                                               
    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                    Secs.  302.201-220                   
RULEMAKING PETITIONS.............  Sec.  302.38                            Sec.  302.16                         
SERVICE:                                                                                                        
    Airport fee dispute            Sec.  302.605 (c)(1), (d)(1)            Sec.  302.605 (c)(1), (d)(1)         
     proceedings.                                                                                               
    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 peitions...........  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                         

[[Page 5134]]

                                                                                                                
SHOW CAUSE ORDERS (see Orders):                                                                                 
SUBPOENAS........................  Sec.  302.19                            Sec.  302.25                         
    SUSPENSION OF PRACTICE BEFORE  Sec.  302.11(a)                         Sec.  302.25(f)                      
     DOT.                                                                                                       
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           Sec.  302.14(b)                         Sec.  302.19                         
     nonparties.                                                                                                
    Depositions..................  Sec.  302.20                            Sec.  302.26                         
    Objections to public           Sec.  302.39(c)                         Sec.  302.12(c)                      
     disclosure 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 3, 1997.
Charles A. Hunnicutt,
Assistant Secretary for Aviation and International Affairs.
[FR Doc. 97-2070 Filed 1-31-97; 8:45 am]
BILLING CODE 4910-62-P