Appendix — Ball v. United States

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APPENDIX A ‘eet?

UNITED STATES COUBT OF APPEALS

FOR THE DISTRICT OF COLUMBIA Orr

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No. 19,693

VN Cas rx County Amport CoMMISSION, PETITIONER,

aa | Jae

Crvn. Azgonavtics Boakp, RESPONDENT

ALLEGHENY Amlaxns, INo., INTERVENOBR

Petition for Review of Orders of the

Civil Aeronautics Board

Decided N ovember 17, 1966 nas

Ur. Robert M. Beckman for petitioner. |

Mr. Frederic D. Houghteling, Attorney, Civil Aeronautics

Board, with whom Assistant Attorney General Turner,

- Messrs. Joseph B. Goldman, General Counsel, O. D. Ozment,

Deputy General Counsel, Warren L. Sharfman, Associate

General Counsel, Civil Aeronautics Board, and Howard E.

Shapiro, Attorney, Department of Justice, were on the

brief for respondent. Mr. Lionel Kestenbaum, Attorney,

Department. of Justice, and John H. Wammer, General

Counsel, Civil Aeronautics Board at the time the record

was filed, also entered appearances for resporident.

Mr. Edwin I. Colodny for intervenor. Mr. David B.

Armstrong also entered an appearance for intervenor.

Before Bazeton, Chief Judge, Waun K. Mier, Senior

Circuit Judge, and Leventuat, Circuit Judge. :

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LxvxxTRHAL, Circuit Judge: Petitioner seeks review of

orders of the Civil Aeronautics Board which amended

the certificate of public convenience and necessity of

Allegheny Airlines, a ‘federally. subsidized local-service

carrier serving Wilmington, Delaware, so as to delete

Wilmington as a separate intermediate point on Allegheny’s

route segment 3, which runs from New York to Pittsburgh —

| _ via Philadelphia’ and Wilmington. The Board acted under

section 401(g) of the Federal Aviation Act, which

authorizes it to amend any carrier's certificate if the

public convenience and necessity: so require, and pursuant

to the Board’s ‘‘use it or lose it“ policy,? whereby cities

which do not make sufficient use of subsidized. air service

to justify its cost to the ‘carrier and the government are

subject to decertification proceedings under section 401(g).

Petitioner, a governmental agency operating the Wilming-

ton Airport, challenges the Board’s action and the con-

sequent loss of direct service between Wilmington and

Pittsburgh. We find the Board’s action free of reversible

error.

The 8 made its decision by weighing several

factors: the inconvenience to Wilmington passengers in

having to use the extensive westward services of the

nearby Philadelphia airport, the volume of traffic that

would be affected by the deletion, the amount of subsidy

cost required to maintain the Wilmington service. This

factor balancing approach is a proper method for deter-

mining what is required by the public convenience and

necessity. See Outagamie County v. CAB, 355 F.2d 900,

906-08 (7th Cir. 1966). The Board’s findings as to the

various factors are amply supported by the record. In

appraising the overall public interest, the Board emphasized

that Wilmington was in a unique position, since the

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149 U.S. C. 5 1371 (g).

214 C. F. R. § 399.11 (1966).

eee eee ern dee

relatively short driving. time to the Philadelphia airport,

where more frequent service is of course available, in effect

gives Wilmington residents the benefit of direct service

from a nearby airport.

\ „ f

Petitioner contends that the balancing approach, though

utilizea by the Board in proceedings. to certify a regional

airport, is contrary to the Board’s established approach

in decertification proceedings involving the use it or lose

it’’ policy. Under that established approach, petitioner

says, deletion is precluded if the minimum use of five

enplanements per day is met. But the Board’s policy

statement regulation expresly advises that the 5 per day

factor was a necessary but not sufficient condition of con-

tinuation of service.“ However useful as a guideline, it

was not made a decisive criterion against decertification.

Whengnot controlled by a regulation even an established .

approach or precedent may be modified or overruled. ..An |

administrative agency concerned with furtherance of the

public interest is not bound to rigid adherence to pre-

cedent.“ It may switch rather than fight the lessons of

e The regulation, 14 C.F.R. §399.11(b) (1966), states: Under

this! use it or lose it’’ policy, the Board will require each city to

originate an average of five or more passengers per day during the

. 12-month period following the initial 6 months of operations

A city generating the bare traffic minimum during this trial period

cannot safely assume that continued service is assured; the Board

expects most cities to exceed the minimum requirements.

* Pinellas Broadcasting Co. v. FCO, 97 U.S.App.D.C. 236, 238,

230 F. 2d 204, 206, cert: denied, 350 U.S. 1007 (1956) 3 Philadelphia

Television Broadcasting Co. v. FCC, ——-U.S.App.D.C. ——, 359

F.2d 282 (1966). As Judge Prettyman aptly noted (230 F.2d

at 206): »The Commission’s view of what is best in the public

interest may change from time to time. Commissions themselves

change, underlying philosophies differ, and experience often

dictates changes.. K :

The same philosophy also permits modification of a policy

Bed sr in a regulation, provided the regulation is duly

4a

experience. An agency reversing its course should supply

an opinion or analysis indicating that the standard is

being changed and not ignored, and assuring that it is

faithful and not indifferent to the need for adherence to

standards.’ But petitioner does not show that the case

at bar involes any such reversal. It adduces no precedent

wherein the Beard held that the 5 per day standard pre-

cluded decertification notwithstanding factors substantially

similar to this case in terms of alternative convenience,

high subsidy cost and low volume. e Board acted

properly in emphasizing the key sin loomed large

in this proceeding, — eas

Petitioner does not advance its position by arguing that

it had no advance notice that a novel approach would

be used. There was novelty in the facts—at least in the

context of a use it or lose it“ decertification proceeding.* ;

Moreover, reference to a balancing approach as novel is

a strange ar, ent. Without minimizing the need or

importance of artiéulation of subsidiary decisional criteria

and working rules, a ‘‘balancing’’ approach would seem to

be inherently available to an agency engaged in the task

of charting the public interest in the varying situations

7 Compare City of Lawrence v. CAB, $43 F. 2d 583 (ist · Cir.

1965. The court had under consideration the Board’s order in the

New England Regional Airport Investigation.’ It affirmed the

order permitting Northeast Airlines to delete service to Lawrence

Massachusetts, in view of the key fact of the proximity of Law-

rence to Boston and the ready accessibility of Lawrence to Boston. tis

However it reversed, and remanded, the order for deletion of

service at New Haven and consolidation with service at Bridge-

port. The court noted the Board’s departure without explanation

from the reasoning of earlier cases, and also referred to internal

inconsistencies’’ with other aspects of the same proceeding. Id.

at 588; r v. Pubiio Uull, Comm. of Ohio, 294

US. 63, 71 (1935).

* Similar factual situations led to deletion of service in other

types of proceedings. See, ¢.9., City of Lawrence v. CAB, supra,

note 5, as to deletion of service at Lawrence. N

ba

presented for determination. It inay be assumed, at “east

for sake of discussion, that there may be reversible error

where a prior agency approach has misled a party to fail

to offer proof on a point the agency has now treated as

crucial. Here, however, petitioner offered evidence on the

key factors considered in the Board’s opinion, convenience

vel nonof the Philadelphia airport, anticipated volume

of traffic, and subsidy costs; and petitioner makes no claim

that there is material evidence that it did not submit but

would have submitted if it had known that a balancing

approach would be used.

Petitioner has a valid point in its l that the

Board’s ultimate finding was that the public convenience

and necessity did not require continuance of the service,

whéreas the statutory test is satisfied only if the Board

finds that the public egnvenience and necessity affirmatively ~

requires deletion. We are not prepared to treat the

difference as inconsequential, as the Government urges. |

But this claim was not made before the Board. In view

of the complete. factual record and the clear statement in

the Board’s opinion setting forth the reasons for .deletion

if found persuasive, we do not think the interest of justice

would be served by remand for further L

Affirmed

6a

Filed Nov. IT, 1966

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 1966 |

. No. 19, 69838.

Nu EW Castuz 6 Amport — Petitioner,

80 i W

nun. AERONAUTICS Boano, Respondent,

Arincneny Arruings, Ixo., Intervenor.

on Petition for Review of Orders of the Civil I Aeronautics

Board. aN

. Before: Bazelon, Chief J aes Wilbur K. Miller, Senior»

Circuit J udge, and Leventhal, Circuit Judge. /

“Judgment ‘

“This case iti on to be heard on the record from the Civil

Aeronauties Board, and was argued by counsel. _

Ox Consieration WuEnzor, it is ordered and adjudged a

by this court that the orders of the Civil Aeronautics Board

.

on review in this case are hereby affirmed. „

9

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3 Per Cirouit Judge Lavenraan~ —

Dated: Nov. 17, 1966

Filed Jan. 9, 1967

Order

On „ of petitioner’ > petition for rehearing .

en banc, it is

_ Opprreb by the court én bane that petitioner’ . aforesaid

— is ae. 5

Per Curiam

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eo

APPENDIX B te

. United States Constitution > | ,

' AMENDMENT V -

No person shall be held to answer for a capital, or 1

wise infamous crime, unless on a presentment or indict-

ment of, a Grand Jury, except in cases arising in the land

or naval forces, or in the Militia, when in actual service in.

time of War or public danger; nor shall any person be

subject for the same offence to be twicé put in jeopardy.

of life or limb ; nor shall be compelled in any criminal case

to be a witness against himself, nor be deprived of life,

liberty, or property, without due process of law; nor shall’

private property be taken for — . without just

compensation.

2. Relevant provisions of the Federal Aviation Act, 72

Stat. 731, 49 U.S. C. 1301 et seg.

can I—Generat 3

* * ‘© * .

Declaration of Policy: The Board

Se 102. [72 Stat. 740, 49 U.S. C. 1302] In the exercise

and performance of its powers and duties under this Aet,

the Board shall consider the following, among other things,

as being in the publie interest, and in accordance with the

public convenience and necessity:

( a) The encouragement and development of an air-trans-

portation system properly adapted to the present and

future needs of the foreign and domestic commerce of the

United States, of the Postal Service, and of the national.

defense;

(b) The regulation of air transportation i in ‘om manner

as to recognize and preserve the inherent advantages of,

assure the highest degree of safety i in, and foster sound

8a

economic conditions i in, such transportation, and to improve

the relations between, and coordinate transportation by,

air carriers;

(o) The promotion of adequate, economical, and efficient

service by air carriers at reasonable charges, without un-

just discriminations, undue preferences or advantages, or

unfair or destructive competitive practices ;

(d) Competition to the extent necessary to assure the

sound development of an air-transportation system prop-

erly adapted to. the needs of the foreign and domestic

commerce of the United States, of the Postal wishes and

of the national defense;

(e) The promotion of safety i in air commerce; and

(f) The (motion, encouragement, and eee of

civil aeronautics.

3. Sec. 401. [72 Stat: 754, as amended 5 76 Stat. *

49 U.S.C. 1371]

Issuance of Certificate

(d) (1) The Board shall issue a certificate authorizing

the whole or any part of the transportation covered by the

application, if it finds that the applicant is fit, willing, and

able to perform such transportation properly, and to con-

form to the provisions of this Act and the rules, regula-

tions, and requirements of the Board hereunder, and that

such transportation is required by the public convenience

and necessity; otherwise such application shall be denied.

Authority to Modify, Suspend, or Revoke

4. 401 (g) The Board upon petition or complaint or upon

its own initiative, after notice and hearings, may alter,

amend, modify, or suspend any such certificate, in whole

or in part, if the public convenience and necessity 80

require, or * revoke any such ane in whole or

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in part, for intentional failure to comply with any pro-

vision of this title or any order, rule, or regulation issued

hereunder or any term, condition, or limitation of such

certificate: Provided, That no such certificate shall be re-

voked unless the holder thereof fails to comply, within a

reasonable time to be fixed by the Board, with an order of

the Board commanding obedience to the provision, or to

the order (other than an order issued in accordance with

this proviso), rule, regulation, term, condition, or limita-

tion found by the Board to have been violated. Any inter-

‘ ested person may file with the Board a protest or memo-

randum in support of or in opposition to the alteration,

amendment, modification, suspension, or revocation of the

certificate. a

5. Federal Aviation Act of 1958, as amended, 49 U.S.C.

1376(a) and (b): |

See. 406(a) The Board is empowered and directed, upon

its own initiative or upon petition of the Postmaster Gen-

- eral or an air.carrier, (1) to fix and determine from time

to time, after notice and hearing, the fair and reasonable. 1

rates of compensation for the transportation of mail by

aircraft, the facilities used and useful therefor, and the

services connected’ therewith (including the transportation

of mail by an air carrier by other means than aircraft

Whenever such transportation is incidental to the trans-

portation of mail by aircraft or is made necessary by-con-

ditions of emergency arising from aircraft operation), by

each holder of a certificate authorizing the transportation

of mail by aircraft, and to make such rates effective from

such date as it shall determine to be proper; (2) to pre-

scribe the method or methods, by aircraft-mile, pound-mile,

weight, space, or any combination thereof or otherwise, for

ascertaining, such rates of compensation for each air car-

rier or class of air carriers; and (3) to publish the ‘same.

Sec. 406 (b) In fixing and determining fair and reason-

able rates of compensation under this: section, the Board

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considering the conditions peculiar to transportation by

aircraft and to the particular air carrier or class of air

carriers, may fix different rates for different air carriers

or classes of air carriers, and different classes of. service.

In determining the rate in each case, the Board shall take

into consideration, among other factors, (1) the condition

that such air carriers may hold and operate under certifi-

cates authorizing the carriage of mail only by providing

necessary and adequate facilities and service for the trans-

portation of mail; (2) such standards respecting the char-

acter and quality of service to be rendered by air carriers

as may be prescribed ‘by or pursuant to law; and (3) the

need of each such’ air carrier for compensation for the

transportation of mail sufficient to insure the performance

of such service, and together with all other revenue of the

air carrier, to enable such air carrier under honest, eco-

nomical, and efficient management, to maintain and con-

tinue the development of air transportation to the extent

and of the character and quality required for the com-

merce of the United States, the Postal Service, and ‘the 2

national defense. 8

6. Federal Aviation te of 1958, as amended, 49 USC.

1485 (f):

Sec. 1005 (f) Every order of the . . . Board shall set

forth the findings of fact upon which it is based. <2

7. Relevant provisions of the Administrative Procedure

Act, 60 Stat. 237, 5 U.S.C. 1001 et seg.

Nublic Information

Sec. 3. [60 Stat. 238, 5 U.S. C. 1002] Except to. the extent

that there is involved (1) any function of the United States

requiring secrecy in the public interest or (2) any matter

relating solely to the internal management of an pgency—

(a) Rules Avery agency shall separately state and cur-

rently publish i in the Federal Register (1) descriptions of

·

11a

its central and field organization including delegations by

the agency of. final authority and the established places at

which, and methods whereby, the public may secure in-

formation or make submittals or requests; (2) statements

of the general course and method by which its functions

are channeled and determined, including the nature and

requirements of all formal or informal procedures avail-

able as well as forms and instructions as to the scope and

contents of all papers, reports, or examinations; and (3)

substantive’ rules adopted as authorized by law and state-

ments of general policy or interpretations formulated and

adopted by the agency for the guidance of the public, but

not rules addressed to and. served upon named persons in

accordance with law. No person shall in any manner be

required to resort to organization or procedure not so

published. = 2 . 8

~ ay . 5 * *

Adjudication ; ;

8. Sec. 5. [60 Stat, 239; 5 U.S. C. 1004] In every case of

adjudication required by statute to be determined on the

record after opportunity for an agency hearing, except to

the extent that. there is involved (1) any matter subject

to a subsequent trial of the law and the facts de novo in

any court; (2) the selection or tenure of an officer or em-

ployee of the United States other than examiners appointed

pursuant to section 11; (3) proceedings in which decisions

rest solely on inspections, tests, or elections; (4) the con-

duct of military, naval, or foreign affairs functions; (5)

cases in which an agency is-acting as an agent for a court;

and (6) the certification of employee representatives—_

(a) Notice.—Persons entitled to notice of an agency hear-

ing shall be timély informed of (1) the time, place, and

nature thereof; (2) the legal authority and jurisdiction .

under which the hearing is to be held; and (3) the mat-

ters of fact and law asserted. In instances in which private

persons are the moving parties, other parties to the pro-

12a

ceeding shall give prompt notice of issues controverted in

fact or law; and in other instances agencies may by rule

require responsive pleading. In fixing the times and places

for hearings, due regard shall be had for the.convenience

and necessity of the parties or their representatives.

(b) Procedure—The agency shall afford all interested

parties opportunity for (1) the submission and considera-

tion of facts, arguments, offers of settlement, or proposals

of adjustment where time, the nature of the proceeding,

and the publiè interest permit, and (2) to the extent that

the parties are unable so to determine any controvery by -

consent, hearing, and decision upon notice and in con-

formity with sections 7 and 8.

9. Sec. 7 [60 Stat. 241; 5 U.S.C. 1006] In hearings

which section 4 or 5. requires to be conducted pursuant to

this section— |

(a) Presiding 1 —There shall preside at the tak-

ing of evidence (1) the agency, (2) one or more members

of the body which comprises the agency, or (3) one or more

examiners appointed as provided in this Act; but nothing

in this Act shall be deemed to ‘supersede the conduct of

specified classes of proceedings in whole or part by or be-

fore boards or other officers specially provided for by or

designated pursuant to statute. The functions of all pre-

siding officers and of officers participating in decisions in

conformity with section 8 shall be conducted in an impar-

tial manner. Any such officer may at any time withdraw

if he deems himself disqualified; and, upon the filing in

good faith of a timely and sufficient affidavit of personal

bias or disqualification of any such officer, the agency shall

determine the matter as a part of the record, and decision

in the case.

(b) Hearing Powers oer ae 3 shall

have authority, subject to the published rules of the agency

and within its powers, to (1). administer oaths and affirma-

tions, (2) issue — authorized . law, (3) rule upon

re

Oy

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offers of Weir and receive relevant evidence, (4) take or

cause depositions to be taken whenever the ends of justice

would be served thereby, (5) regulate the course of the

hearing, (6) hold conferences for the settlement or simpli-

fication of the issues by consent of the parties, (7) dispose

of procedural requests or similar matters, (8) make deci-

_ sions or recommend decisions in conformity with section

8, and (9) take any other action authorized by agency rule

consistent with this Act.

(c) Evidence. Except as statutes otherwise provide, the

proponent of a rule or order shall have the burden of proof.

Any oral or documentary evidence may be received, but

every agency shall as a matter of policy provide for the

exclusion of irrelevant, immaterial, or unduly repetitious

evidence and no sanction shall be imposed or rule or order

be issued except upon consideration of the whole record

or such portions thereof as may be cited by any party and

as supported by and in accordance with the reliable, pro-

bative, and substantial evidence. Every party shall have

the right to present his case or defense by oral or docu-

mentary evidence, to submit rebuttal evidence, and to con-

duct such cross-examination as may be required-for a full

and true disclosure of the facts. In rule making or de-

termining claims for money or benefits or applications for

initial licenses any agency may, where the interest of any .

party will not be prejudiced thereby, adopt procedures for

the submission of all or part of the evidence in written

5 form.

(d) Record. — The W of testimony and exhibits,

together with all papers and requests filed in the proceed- ;

ing, shall constitute the exclusive record for decision in

accordance with section 8 and, upon payment of lawfully :

prescribed costs, shall be made available to the parties,

Where any agency decision rests on official notice of a ma-

terial fact not appearing in the evidence in the ‘record, any

party shall on timely request be. afforded an en

to show the contrary.

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Decisions

10. Sec. 8. [60 Stat. 242; 5 U.S.C. 1007] 33

Which a hearing is required to be conducted i in * a

with section 7: :

(a) Action by Subordinates.—In cases in which the

agency has not presided at the reception of the evidence,

the officer who presided (or, in cases not subject to sub-

section (e) of section 5, any other officer or officers qualified

to preside at hearings pursuant to section 7) shall initially

decide the case or the agency shall require (in specific

cases or by general rule) the entire record to be certified to

it for initial decision. Whenever such. officers make the

initial decision and in the absence of either an appeal to

the ‘agency or review upon motion of the agency within

time provided by rule, such decision shall without further

proceedings then become the decision of the agency. On ap-

peal from or review of the initial decisions of ‘such officers

the agency.shall, except as it may limit the issues upon

notice or by rule, have all the powers which it would have

in making the initial decision. Whenever the agency

makes the initial decision without having presided at -the

reception of the evidence, such officers shall first recommend

a decision except that in rule making or determining ap-

plications for initial licenses (1) in lieu thereof the agency

may issue a-tentative decision or any of its responsible

officers may recommend a decision or (2) any such pro-

cedure may be omitted in any case in which the agency

finds upon the record that due and timely execution of its

functions imperatively and unavoidably so requires.

(b) Submittals and Decisions. Prior to each recom-

mended, initial, or tentative decision, or decision upon

agency review of the decision of subordinate officers the

parties shall be afforded a reasonable opportunity to sub-

mit for the consideration of the officers participating in

such decisions (1) proposed findings and conclusions, or

(2) exceptions to the decisions or recommended decisions

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15a

of subordinate officers or to tentative agency decisions, and

(3) supporting reasons for such exceptions or proposed

findings or conclusions, The record shall show the ruling

upon each such finding, conclusion, or exception presented.

All decisions (including initial, recommended, or tentative

decisions) shall become a part of the record and: include a

statement of (1) findings and conclusions,. as well as the

reasons or basis therefor, upon all the material issues of

fact, law or discretion presented on the record; and (2) the.

appropriate rule, order, sanction, relief, or denial thereof.

Judicial Review :

11. Sec. 10. [60 Stat. 243; 5 U.S.C. 1009] Except so far

as (1) statutes preclude judicial review or (2) agency ac-

tion. is by law committed to agency discretion— a

(a) Right of Review.—Any person suffering legal wrong

because of any agency action, or adversely affected or ag-

grieved by such agtion within the meaning of any releyant

statute, shall be entitled to judicial review thereof.

(b) Form and Venue of Action.—The form of proceed- ~~

ing for judicial review shall be any special statutory review .

proceeding relevant to the subject matter in any court

specified by statute or, in the absence or inadequacy thereof,

any applicable form of legal action (including actions for

‘declaratory judgments or writs of prohibitory or manda-

tory injunction or habeas corpus) in any court of com-

petent jurisdiction. Agency action shall be subject to ju-

dicial review in civil or criminal proceedings for judicial

- enforcement except to the extent that prior, adequate, and

exclusive opportunity for such review is provided by law.

(e) Reviewable Acts——Every agency action made re-

viewable by statute and every final agency action for which

there is no other adequate remedy in any court shall be

subject to judicial review. Any preliminary, procedural, .

or intermediate. agency action or ruling not directly re-

viewable shall be subject to review upon the review of the

16a

final agency action. Except as otherwise expressly re-

quired by statute, agency action otherwise final shall be

final for the purposes of this subsection whether or not

there has been presented or determined any application for

a declaratory order, for any form of reconsideration, or

(unless the agency otherwise requires by rule and pro-

vides that the action meanwhile’ shall be inoperative) for

an appeal to supérior agency authority. i é

(d) Interim Relief —Pending judicial review any agency

is authorized, where it finds that justice so requires, to

postpone the effective date of any action taken by it. Upon

such conditions as may be required and to the extent neces-

sary to prevent irreparable injury, every reviewing court

(including every court to which a case may be taken ‘on

- appeal from or upon application for certiorari or other

writ to a reviewing court) is authorized to issue all neces-

sary and appropriate process to postpone the effectiv

date of any agency action or to preserve status or seed |

pending conclusion of the review proceedings. ‘\

(e) Scope of. Review —8o far as necessary to decision

and where presented the reviewing court shall decide all

| relevant questions of law, interpret constitutional and

/ gatutory provisions, and determine the meaning or ap-

plicability of the terms of any agency action. It shall (A)

compel agency action unlawfully withheld or unreasonably

delayed; and (B) hold unlawful and set aside agency ac-

tion, findings, and conclusions found to be (1) arbitrary,

capricious, an abuse of discretion, or otherwise not in ac-

cordance with law; (2) contrary to constitutional right,

power, privilege, or immunity ; ; (3) in excess of statutory

jurisdiction, authority, or limitations, or short of statutory

right; (4) without observance of procedure required by

law; (5) unsupported by substantial evidence in any case

subject to the requirements of ‘séction 7 and 8 or otherwise

reviewed on the record of an agency hearing provided by

statute; or (6) unwarranted by the facts to the extent that

17a

the facts are subject to trial de novo by the reviewing

court. In making the foregoing determinations the court

shall review the whole record or such portions thereof as

may be cited by any party, and due account shall be taken

of the rule of prejudicial error.

12. 14 C. F. R. 399.11

(d) Continued use of local carrier services. In evaluat-

ing the continuing need for air service at any point or on

any route segment served by a local service carrier, the

Board will use the minimum traffic standard of five pas-

sengers as a guide line, regardless of the type or duration

of an authorization. The Board will require the local serv-

ice carriers to make appropriate periodic reports of traffic

results. Air carrier management is expected to suggest

route or authorization modifications as soon as deficiencies

in service become apparent. When a city or route segment

fails to make continued use of subsidized services, the car-

rier is free, and is encouraged, to apply for a suspension

of service in advance of a Board ‘proceeding to terminate

the certification. The failure of a local service carrier to

exercise vigilance in this regard may, in fact, reflect upon

the economy and efficiency of management in proceedings

to determine subsidy needs under section 406 of the Act.

13. The Board's Notation“ Procedure:

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.

cn. AERONAUTICS BOARD

_ WASHINGTON, D. *

In Reply Refer to: B- 11

June 3, 1968

Received June 6, 1966 R. M. B.

Mr. Robert M. Beckman

Haffer & Beckman 5

703 Ring Building

‘ Washington, D. C. 20036

Re: New Castle Sonne Airport Gabe v. Civil

Aeronautics Board, C. A. D. C. No. 19, 693

5 Dear Mr. Beckman:

In accordance with your 8 Lam — certified 5

excerpts from the official C. A. B. Minutes N to tlie

Board's notation procedure, 5

0 The Board will bill vou for its services, the fees aa |

charges as set forth in Part 389 . its 9

*

Very truly yours, *

ae Js, Haroip R. SANDERSON

. Harold R. Sanderson

„„ 9

Attachment .

ar) aE ee whe

19a

7 ATTACHMENT A

" Excerpr rom Mixurzs or a Meerine or THE Crvn, Azro-

ae Narres Boarp HRLD at rts Orrice Ix WasRIxdrox,

. D., A 7, ae

PRESENT: Mr. Durfee, Chairman, Mr. Gurney, Vice

Chairman, Mr. Denny, Mr. Hector—Members of the

Board. Cor 5 a

The Board convened at 10:05 a.m.

ne 1 . . * er

2. Ratification of actions taken by Notation on April 12,

15, 16, 17, 18, 19 and 22, 1957. The Board ratified the

following actions taken by N otation on the dates shown:

Rae = „ * mia, 6 PP ees

8 (10) Approval of a statement of Procedure for

Handling Notation Items“ (exhibit 511) and of

Tally Sheet“ (exhibit 511a) for recording of

Members’ votes in connection with the Notation

Process. (April 17, 1957)

2 jl. @ „ * 0 * .

/s/ M. C. Muttican

M. C. Mulligan

Secretary

20a

EXHIBIT 511

PRO CEDURR FoR HAN DING NorATTON ITEMS

Matters for consideration and action by the Board which,

in the opinion of-the originating office, will not require dis-

cussion by the Members may be cireulated for approval

as follows: —

(1) Dating and 8888 Upon . of the docu-

ment, the Minutes Section will stamp the date it is

received in the Minutes Section and assign a Notation

Number for identification and control purposes.

(2) Signature Cases.

a. Where signatures of Members are required, the

Minutes Section will forward study-copies to each

Member simultaneously and information copies to

the Staff members concerned. Normally a signa-

ture copy will be circulated first to the Vice Chair-

man, if present and concurring, then to the other

Members, and lastly to the Chairman.

„ b. When-a Member is unable to take action within a

reasonable time (normally within three working

days), he will forward the signature copy to the

Member next in order of routing. ahd advise the

Minutes Section accordingly. |

c. The Minutes Section will recirculate signature

copies for information and/or approval of all

language changes. However, technical changes

correcting citations, references, grammer, minor

: stylistic flaws, ete., will not be considered language

* changes unless 80 indicated baal person mak-

. ing the correction. ”

d. Members desiring to make. a substantial change

in language, express a comment, or- -ascertain the

views of other Members, will request that the .

item be calendared. -,

21a

(3) Tally-Sheet Cases.

a. When initials, rather than signatures, are suffi-

cient, the Minutes Section will attach a. pink tally

sheet (CAB Form 124, copy attached) to study

copies and forward such copies to all Members

simultaneously. Information copies will also be

sent to all staff members concerned. .

b. The Minutes Section will indicate in the upper

right-hand corner of each tally sheet a time limit

which allows three working days for taking action,

and in the event of an emergency; a closer time |

limit will be shown. In such cases an explanation

of the special circumstances involved will appear

on the first page of the Notation document.

0

c. The Member will indicate his position on the

recommended action by (1) checking the appro-

‘priate box on the Tally Sheet (and, where he dis-

approves, indicating whether or not he wishes his

dissent to be shown on the outgoing document,

if any); (2) initialing in the space provided; and.

(3) returning the Tally Sheet to the Minutes

Section. on 3

d. When a Member wishes to postpone voting beyond

the time limit, he will indicate under Comments“

his reasons for postponing his vote. Upon advice

that the Member is prepared to vote, the Minutes

Section will furnish another Tally Sheet.

e. When a Member approves or disapproves a recom-

mendation, but adds comments, the Minutes Sec-

tion will bring such comments to the attention of

the other Members and, where necessary or de-

sirable, to the attention of the Office (s) or Bu-

reau(s) concerned. ~ oe 8

*

4) Delivery of N otation Documents. To assure prompt

: action on Notation items (whether signature or tally -

sheet cases), all documents should be hand carried

among the Members’ Offices and the Minutes Sec-

tion. Special 3 are available for this

purpose.

6), Report on Status of Notation Items. The Minutes

Section will prepare and distribute to the Members

twice weekly a report on the status of pending Nota-

tion items. When an item has been held beyond

the designated time limit, the report will show the

office holding such item and the reason therefor, if

known. Items will be considered as completed only

after the Minutes Section has received positive in-

dication of the position of each Member.

ATTACHMENT B

Excerpr From Minutes or a MEETING or THE CTV. AERO-

wautics Boarp HELD at its OFFICE IN WasHINcTor,

D. C., -JaNnvuaRy 7, 1958 5 a

PRESENT: Mr. Durfee, Chairman, Mr. Gurney, vice

Chairman, Mr. Denny, Mr. Minetti, Mr. Hector

Members of the Board 1

The Board convened at 10:20 a. m.

* * * * 5 *

3. Suggestions for Revised Board Procedures. (Calendar

Items 1, 2, and 3.) The Board considered various sugges-

tions aimed at expediting the transaction of its day-to-day -

business. After full ‘Gecussion the * was unan-

imously agreed to:

. (a) neee of matters to the Board ie action

0 . „ * 9

Any item presented for action by notation will be

. oalendareqͥ at the request of a Member of the Board who

eee cSt eo a eile ang

23a a

feels that its nature warrants Board discussion, But when

in the first instance a Member merely has a question or

questions regarding the Agtation item he will endeavor,

through his Assistant, to resolve the question or questions

by diseussion with the originating Office or Bureau. To

facilitate this, all notation memoranda will indicate the

name and telephone extension of the person or persons

most familiar with the subject matter, and this requirement

will also apply to memoranda dealing with items to be

calendared for Board discussion. ;

Except when impossible due to circumstances beyond

control, memoranda presenting matters for Board action

will be submitted to the Members at least 24 hours prior

to the date the matter is to be taken up for calendar dis-

cussion, or to a deadline for action by notation, in -order

to permit adequate study by the Members. The staff con-

- cerned will be expected to give clear and positive reasons in

justification of any deadline requiring departure from the

foregoing rule. 1 he

N „ . * „„

/3/ M. C. Moradax

M. C. Mulligan

Secretary

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