# Rules of Practice in Proceedings > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A00-2554 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** February 9, 2000 - **Citation:** 65 FR 6446 ## Text DEPARTMENT OF TRANSPORTATION Office of the Secretary 14 CFR Parts 200, 211, 213, 216, 291, 300, 302, 303, 305, 377, 385, and 399 [Docket No. OST-97-2090] RIN 2105-AC48 Rules of Practice in Proceedings AGENCY: Office of the Secretary, Department of Transportation. ACTION: Final rule. SUMMARY: The Department is finalizing, with certain exceptions, a Notice of Proposed Rulemaking (NPRM) (62 FR 5094, Feb. 3, 1997) to revise 14 CFR part 302 in order to eliminate unnecessary verbiage and obsolete provisions and to make technical changes to make the rules current. The final rule also includes certain changes implementing the electronic filing component of the Department's Docket Management System (DMS). All reserved subparts are being removed, and the remaining subparts are being reorganized and renumbered to make their arrangement more logical and to emphasize procedures applicable to the much more commonly used written (as opposed to oral) proceedings. The rulemaking also adds procedures for slot exemptions at high-density airports. The NPRM proposed a number of changes in the time periods for filing responsive documents in licensing cases, which we are adopting. A number of commenters proposed further changes to the filing periods. Based on these comments, we have decided to re-evaluate all of the prescribed time periods in part 302 and will issue a supplemental notice of proposed rulemaking on this matter. In addition, as noted in the preamble to the NPRM, we are also amending those rules in 14 CFR Chapter II containing now incorrect references to specific sections in part 302. Finally, one provision in part 302 is being relocated to part 300, Rules of Conduct in DOT Proceedings Under This Chapter. EFFECTIVE DATE: The rule shall become effective on March 10, 2000. FOR FURTHER INFORMATION CONTACT: Patricia L. Thomas or Carol A. Woods, Office of Aviation Analysis, X-56, U.S. Department of Transportation, 400 Seventh Street, SW, Washington, DC 20590, (202) 366-9721. SUPPLEMENTARY INFORMATION: Background 14 CFR part 302, Rules of Practice in Proceedings, contains the regulations that govern the conduct of all aviation economic proceedings before the Department of Transportation. These rules had not been comprehensively reviewed and updated since 1985 when the aviation economic functions of the Civil Aeronautics Board (CAB) were transferred to the Department as a result of the CAB's “sunset.” In his Regulatory Reinvention Initiative Memorandum of March 4, 1995, President Clinton directed Federal agencies to conduct a page-by-page review of all of their regulations and to “eliminate or revise those that are outdated or otherwise in need of reform.” In response to that directive, the Department undertook a review of its aviation economic regulations as contained in 14 CFR chapter II. Not unexpectedly in reviewing part 302, we identified a number of provisions and references that were obsolete, requiring technical and editorial revisions to make them current, and areas where changes were needed to bring the rules into conformance with the Department's current needs and practices and to facilitate their use by the public. Toward that end, the Department issued a Notice of Proposed Rulemaking (NPRM) (62 FR 5094, February 3, 1997) to revise part 302. The Changes Except as otherwise discussed below in the section summarizing and resolving issues raised in the comments received, we are adopting the changes as proposed in the NPRM. Because of the extent and number of changes being made, we are reissuing part 302 in its entirety. Unless noted, as with statutory re-codifications, no changes in the wording or organization of part 302 are intended to make a substantive change in the rules affected. The most noteworthy of the substantive revisions being adopted are as follows: General Part 302 is extensive, with different subparts governing different types of proceedings. In general, the changes include eliminating redundancies, obsolete provisions and wordiness; resequencing sections within subparts to place them in a more logical order to “track” the course of a particular type of proceeding; and reorganizing and renumbering subparts to place a greater emphasis on procedures used in written proceedings ( i.e., non-oral evidentiary proceedings) which are used in the majority of cases handled. Some sections are being separated or combined and titles added or revised for clarity and ease in locating specific provisions. A number of the subparts are being reordered so that the rules of general applicability (revised Subpart A) come first, followed by rules pertaining to the Department's “permanent” licensing functions, i.e., issuance of U.S. air carrier certificates and foreign air carrier permits (new Subpart B, current Subparts I and Q), rules pertaining to “temporary” licensing functions, i.e., exemptions (new Subpart C, current Subpart D), rules on enforcement of those licenses and other Department regulations (new Subpart D, current Subpart B), and rules on rates, fares, and charges, i.e., prices for foreign air transportation (revised Subpart E), airport fees (revised Subpart F), and mail rates and contracts (new Subpart G, current Subparts C and O). Current Subpart J, Rules Applicable to Proceedings Involving Charter Air Carriers, is being removed. This subpart contains procedural rules for the immediate suspension of a charter air carrier's certificate. To our knowledge, this rule has never been used and is redundant with respect to other authority and procedures. Subparts G, H, K, L, M, N, and P, which are currently “reserved,” are also being removed. Subpart A—Rules of General Applicability currently sets forth the general rules that apply to all proceedings before the Department. The changes to Subpart A include the addition of a definitions section (§ 302.2) which include definitions drawn from other sections of the current rule ( e.g., DOT decisionmaker) as well as new definitions ( e.g., party, non-hearing case) or revised definitions. The final rule also includes certain changes implementing the electronic filing component of the Department's Docket Management System (DMS). Some sections in Subpart A are being reorganized. For example, requirements for filing documents (§ 302.3) are being revised to include provisions on the prohibition and dismissal of certain documents, and the discussion on motions for leave to file otherwise unauthorized documents, presently contained in the general requirements for documents (§ 302.4), is being relocated to the section on responsive documents (§ 302.6(c)). Provisions are being added to specify when an application may be amended when the application has not been set for hearing—e.g., prior to the issuance of an order establishing further procedures or disposing of the application (§ 302.5). Service of documents (new § 302.7) is being revised to allow for service by facsimile and other electronic means. We are also deleting the reference in proposed § 302.7(h) to the Department's Alaska Field Office, since that office has been closed. A provision is being added in the section on requests for confidential treatment of information (new § 302.12) to allow limited disclosure to the parties in a proceeding upon submission of affidavits by those parties agreeing to protect the confidentiality of the documents in accordance with a Department order. All of the paragraphs that pertain only to oral evidentiary hearings are being moved to the end of the subpart (new §§ 302.17-302.37) to alleviate confusion over the procedures that are applicable only to those types of proceedings and those applicable to non-hearing cases, which now comprise the bulk of the proceedings that the Department handles. The section on administrative law judges (new § 302.17) is being revised to specify the powers of the judges and to include the delegation of authority to the judges to make decisions in hearing proceedings (current § 302.27(a)). The section on the DOT decisionmaker (new § 302.18) is being revised to reorder the text to eliminate duplication and to reflect that the majority of cases are decided by using non-hearing proceedings. The list of officially noticeable documents, included in the evidence section (§ 302.24), is being updated and reorganized so that documents filed with or compiled by the Department, including the Federal Aviation Administration, are listed first followed by documents filed with or compiled by other government agencies and then private organizations (§ 302.24(g)). A new section specifying the actions that can be taken by administrative law judges after a hearing, including issuing initial or recommended decisions (which would be defined in the rule) or certifying the record to the DOT decisionmaker is being added (§ 302.31). A provision is being added stating that, in the case of a recommended decision, unless a petition for discretionary review, exceptions, or a notice by the DOT decisionmaker taking review was filed, the judge's decision would be forwarded to the President for review under 49 U.S.C. 41307 as the Department's final order. Some sections are being removed from this subpart if they pertain only to specific types of cases (e.g., § 302.13, joinder of complaints or complainants, is being moved to new Subpart D concerning enforcement proceedings), or if they more logically belong in other rules (e.g., § 302.18(a-1)—motions to disqualify DOT employees in review of hearing matters—is being redesignated § 300.18 in part 300 of this chapter, which covers rules of conduct in DOT proceedings). Subpart B—Rules Applicable to U.S. Air Carrier Certificate and Foreign Air Carrier Permit Licensing Proceedings replaces and revises current Subparts I and Q with respect to licensing procedures for new U.S. certificated and foreign air carriers and the conduct of international route proceedings. The new Subpart B is being organized to indicate more clearly what evidence requirements and filing and review procedures will be followed in each type of licensing case. Thus, current § 302.1720, which applies to certificate cases in general, contains provisions on filing conforming applications or motions to modify the scope of a proceeding that are applicable to international route cases but not applicable to initial fitness cases. Provisions pertaining solely to international route cases are being combined in new § 302.212; those pertaining to initial or continuing fitness cases for U.S. carriers are being placed in new § 302.211; and those pertaining to foreign air carrier permit cases are being included in new § 302.213. A provision is being added (new § 302.202(a)) stating that, in those cases involving the initial or continuing fitness of a U.S. air carrier, any application filed should also contain the supporting fitness information required by part 204 of this chapter. The requirement to serve copies of pleadings on other parties is being revised for proceedings involving foreign air carrier permit applications to conduct scheduled operations to include the airport authority of any U.S. airport that the applicant initially proposes to serve (new § 302.203(b)(2)(C)). Service on such parties is already required and is being retained in U.S. air carrier certificate application proceedings (new § 302.203(b)(1)). We are also eliminating the separate regulatory procedures and time periods for responsive pleadings for certificate restriction removal cases (current §§ 302.1730). Such cases are rare and can be handled under the same rules and timeframes as international route award cases. If different procedures or timetables are required in a specific case, the Department can establish those in a procedural order at the outset of such proceeding. We are adding a provision to allow specifically for the filing of replies to answers in licensing cases (new § 302.204(b)). Replies are routinely filed in such cases (accompanied by a motion for leave to file), are permitted in response to answers to show-cause orders issued in such proceedings, and are of benefit to the Department in analyzing the information and allegations in any filed answer. We are adding a provision to specify that, in U.S. air carrier certificate cases, the order establishing further procedures will be issued in 90 days after a complete application is filed (new §§ 302.211(b) and 302.212(e)). This clarification, which reflects the provision in current § 302.1713 (new § 302.209) that the time periods contained in the subpart would not begin to run until the application is complete, is intended to alleviate any confusion over when a DOT order taking action on an application would be issued, since many certificate applications are not complete when submitted and must be deferred pending receipt of supplementary information. The section on the disposition of applications (new § 302.210) is being reorganized to reflect the current practices employed in the majority of application cases of using show-cause procedures or final orders, rather than instituting an oral evidentiary hearing. A provision is being added to current § 302.1757 (new § 302.220(b)(2)) to clarify that if the DOT decisionmaker does not act within 90 days of the issuance of an initial decision by an administrative law judge, that decision becomes the final decision of the Department. Current § 302.1760, which pertains to internal procedures of the Department, is being eliminated as unnecessary. Subpart C—Rules Applicable to Exemption Proceedings replaces and revises current Subpart D, which sets forth procedural rules for U.S. and foreign air carriers to follow in applying for exemption authority under section 40109 of Subtitle VII of Title 49 of the United States Code (“the Statute”). It adds proceedings for slot exemptions at high-density airports under section 41714 of the Statute to its scope. It also gives guidance to U.S. and foreign air carrier applicants on the specific information they must file. New § 302.302(b) revises the names of the offices where exemption applications are to be filed to the U.S. Air Carrier Licensing Division or Foreign Air Carrier Licensing Division, as appropriate, in the Office of International Aviation. New § 302.302(b)(4) is being revised to permit the filing of exemption requests by facsimile and electronic mail (when available), and new § 302.302(e) (current § 302.401(e)) is being revised to reflect our present practice of omitting applicants' addresses when publishing notices of exemption applications filed. Also, the word “undue” is being changed to “unreasonable” in paragraphs (3) and (4) of new § 302.303(d) to reflect a change in this language in section 40109(g)(1)(C) of the Statute. Subpart D—Rules Applicable to Enforcement Proceedings replaces and revises current Subpart B, which contains the specific rules governing actions or proceedings by which the Department enforces the aviation economic provisions of the Statute and the rules, orders, and other requirements the Department issues under those provisions. These rules also inform the public how to lodge complaints and detail the procedures that the Department and the parties will follow in the event the Department takes enforcement action. A definitions section is being added to new Subpart D (new § 302.402). In addition, various sections are being combined, separated or retitled for purposes of clarity. Thus, a separate section on informal complaints is being established (new § 302.403), and the section on formal complaints is being expanded to include current §§ 302.203 and 302.13 and separated into paragraphs pertaining to, among others things, the filing, amendment, and service of such complaints (new § 302.404). The term “third-party complaint” used throughout is being replaced with “formal complaint,” and the “saving clause” from Subpart A (current § 302.40) is being moved to Subpart D as new § 302.420 and modified to include provisions of the Statute and orders and other requirements of the Department. Subpart E—Rules Applicable to Proceedings with Respect to Rates, Fares and Charges for Foreign Air Transportation revises current Subpart E, which contains special rules for proceedings relating to rates and fares and their related rules, classifications and practices applied in foreign air transportation. These proceedings are instituted at the Department's discretion in response to a third-party complaint, or upon the Department's own initiative. Historically, most such proceedings involved complaints against tariffs by competitors. The title of the subpart is being amended to add “for Foreign Air Transportation” to clarify that these rules do not apply to rates, fares and charges in interstate transportation. Current § 302.506 is being eliminated. That section places the burden of going forward with the evidence (i.e., making at least a prima facie case of lawfulness) upon the carrier proposing a tariff change. Under deregulation pricing policies and procedures, fare decreases or rule liberalizations do not need any justification. Subpart F—Rules Applicable to Proceedings Concerning Airport Fees contains the specific rules that apply to a complaint filed by one or more U.S. or foreign air carriers for a determination of the reasonableness of a fee increase or a newly established fee imposed upon the carrier by the owner or operator of an airport. This subpart also applies to requests by the owner or operator of an airport for such a determination. Since Subpart F was adopted in February 1995, we had not proposed any changes to it in the NPRM except to make the provisions internally consistent with the rest of revised part 302, such as by changing section reference numbers (e.g., in § 302.617, the reference to § 302.28(a) is being changed to § 302.32(a)), and to include references to the subpart in the index in Appendix A. However, we have decided to take this opportunity to revise Subpart F in order to eliminate redundancies, renumber the paragraphs to conform with the numbering system in the rest of part 302, and make editorial changes for purposes of clarity. In addition, because the procedures for determining the reasonableness of airport fees are identical regardless of whether the proceeding has been instituted by a complaint from an air carrier or by a request from an airport, those procedures, which are now contained in separate sections (current §§ 302.611 and 302.613), are being combined into new § 302.606. Specifically, the following changes are being made: In the third sentence of paragraph (a) of § 302.601, the words “is considered to have” are being added after “An airport owner or operator” and before “imposed a fee on an air carrier or foreign air carrier” to make clear that fees that have been set, regardless of whether they have been collected, are covered by the rule. A new paragraph (c) is being added to that section to state that “Except as modified by this subpart, the provisions of subpart A of this part apply” to conform to revisions in the other subparts. Current § 302.603 is being renumbered as § 302.602. In paragraph (a) of that section, a reference to § 302.4 is being added after the reference to § 302.3 to reflect the changes being made in those sections. In paragraph (b) of new § 302.602 and throughout the rest of the subpart, the reference to “an air carrier or foreign air carrier” is being simplified to “carrier”. Also to conform to the rest of the part, any references to numbers of days in numerical form, e.g., 7, will now also include the word for that number, e.g., “seven (7)”. References to other numbered sections in the subpart are being updated to reflect the new section numbers, e.g., the reference to §§ 302.611 and 302.613 will now be § 302.606. Current § 302.605 is being renumbered as § 302.603. In the second sentence of paragraph (a) of that section, the statement that the complaint or request shall include a copy of “all supporting testimony and exhibits available to the carrier on which the filing party intends to rely” is being revised to eliminate the reference to “available to the carrier” since such documents available to the airport should also be included. In paragraph (b), the reference to the “Chief of the Economic and Financial Analysis Division” is being dropped for the more generic “Office of Aviation Analysis” and the reference to filing several copies of diskettes containing exhibits with Department of Transportation Dockets, the administrative law judge, and the Office of Aviation Analysis is being revised to indicate that all 3 copies can be submitted to Department of Transportation Dockets instead of directly with each of the other two offices. The latter change is being made at the suggestion of the Airports Council International (see following section on comments received on the NPRM). The provisions in subparagraphs (c)(1) and (c)(2) concerning service of complaints are being combined, and the remaining subparagraphs renumbered. Similarly, the provisions in subparagraphs (d)(1) and (d)(2) concerning service of requests for determinations are being combined. In new subparagraph (d)(1), a reference is being included to new § 302.603(c)(1) to indicate the manner of service and to eliminate excess verbiage. Current § 302.607 is being renumbered § 302.604. In paragraph (d) of that section, a reference is being included to new § 302.603(b) to indicate the format to be used for diskettes and to eliminate excess verbiage. The provisions in subparagraphs (e)(1) and (e)(2) concerning service of answers are being combined. Current § 302.609 is being renumbered § 302.605. In paragraph (d), a reference to new paragraph § 302.603(b) is being included to indicate the format to be used for diskettes and to eliminate excess verbiage. In paragraph (e), a reference to certifying that the parties served with a reply have actually received it is being added to conform to the rules on service of other types of documents in these proceedings. Current § 302.611 is being renumbered § 302.606 and combined with current § 302.613 so that the procedures for review of complaints or requests for determination are in the same section. Thus, the provisions of paragraphs (a) and (e) of current § 302.613 are being combined with current § 302.611(a) into new § 302.606(a); current §§ 302.611(b) and 302.613(b) are being combined into new § 302.606(b); current §§ 302.611(c) and 302.613(c) are being combined into new § 302.606(d); and current §§ 302.611(d) and 302.613(d) are being combined into new § 302.606(c). The heading of this section is also being retitled to reflect this change. Current § 302.615 is being renumbered as § 302.607. Current § 302.617 is being renumbered as § 302.608. In that section, subparagraphs (b)(1) and (b)(2) relating to service of petitions for review are being combined into new subparagraph (b)(1). Current § 302.619 is being renumbered as § 302.609. Paragraphs (a) and (b) of that section are being combined into new paragraph (a), and paragraph (c) is being renumbered as paragraph (b). Current § 302.621 is being renumbered as § 302.610. In paragraph (c) of that section, a reference is being added to a request for a determination to indicate that if the Secretary does not issue a final decision within 120 days after the filing of such a request, the decision of the administrative law judge will be deemed the final order of the Secretary. Subpart G—Rules Applicable to Mail Rate Proceedings and Contracts combines, replaces and revises subparts C and O. Current Subpart C—Rules Applicable to Mail Rate Proceedings sets forth the special rules applicable to proceedings for the establishment of mail rates by the Department in accordance with section 41901 of the Statute. These are the rates paid by the United States Postal Service to U.S. air carriers for the transportation of mail within Alaska and between the U.S. and foreign countries. Current Subpart O—Procedure for Processing Contracts for Transportation of Mail by Air in Foreign Air Transportation sets forth procedures applicable to certain contractor arrangements for the carriage of mail between the U.S. Postal Service and certificated air carriers pursuant to 39 U.S.C. 5402(a). Certain sections are being revised to allow the DOT decisionmaker additional flexibility in dealing with specific cases. Thus, current § 302.305(a) provides that a notice of objection to the rates proposed in a show-cause order is due within ten (10) days and, if such a notice is properly filed, written answers and any supporting documents are due within thirty (30) days. Subsequent to the issuance of the NPRM, the Department eliminated the provision for notices of objection and extended the answer period to forty-five (45) days, or within such other period as the order may specify. (See Orders 97-9-37, 97-11-20, and 98-6-16.) We are adopting these changes in new § 302.704(a). In addition, current § 302.307 is being revised to allow the decisionmaker to authorize the filing of additional pleadings or establish further procedural steps in lieu of instituting an oral hearing (new § 302.705(b)) and to allow the issues in any hearing that is instituted to be formulated by the instituting order (new § 302.706(a)). The provisions of current § 302.306 and certain provisions of § 302.307 concerning the filing of answers are being combined into new § 302.705 covering further procedures, and current §§ 302.301, 302.302, and 302.308, and certain provisions of § 302.307 are being combined into new § 302.706 entitled “Hearing.” The provisions of paragraphs (a) and (b) of current § 302.1503 are being eliminated as unnecessary, and new § 302.719 refines and condenses the data required to reflect current practice. The subject index contained in Appendix A—Index to Rules of Practice is being updated to include additional references (such as to Fitness Cases and Airport Fee cases), and to eliminate obsolete references. Also, to assist users in locating the newly renumbered sections, the revised Appendix lists for each subject both the current section number(s) and the corresponding new section number(s). Comments and Their Resolution Comments on the proposed changes were received from Airports Council International (“ACI”); American Airlines, Inc. (“American”); Continental Airlines, Inc. (“Continental”); Dade County (Florida) Aviation Department (“Dade”); Mr. Richard J. Fahy, Jr., an aviation attorney (“Mr. Fahy”); and United Air Lines, Inc. (“United”). The comments will be discussed and resolved in the order in which their subject matter appears in the proposed rule. Subpart A Section 302.3(c)(1) Number of Copies The NPRM proposed to continue the current rule, as amended in a 1996 rulemaking (Docket OST-96-1436, 61 FR 29284, June 10, 1996), which sets forth the number of copies, ranging from three to nine, to be filed in each of 19 types of aviation proceedings. Comments: Mr. Fahy recommends that the Department standardize the number of copies to be filed in proceedings so that the rule will not have to be consulted each time a different type of filing is made. Resolution: After reviewing our needs in the various types of aviation proceedings, we have decided not to change the rule at this time. Section 302.7(e)(2) Electronic service of documents The NPRM proposed that adequate proof of service of a document would include “a certificate of successful transmission executed by the person transmitting the document by facsimile or electronic mail, listing the facsimile number or electronic mail address to which the document was sent.” Comments: Continental and United request a clarification of the term “successful transmission.” They contend that it should be sufficient to certify that the document was transmitted by the method stated and is presumed to have been received unless the sender receives notice of an unsuccessful transmission. United further recommends that, in the case of a transmission failure, a party should be allowed to employ another means of service without having to inform the Department. Resolution: We agree with the commenters that requiring persons who are electronically serving documents to obtain signed statements or certificates acknowledging receipt is overly burdensome. Upon reconsideration, we believe that adequate proof of electronic service would consist of a certificate of successful transmission by the sender, including the facsimile number or electronic mail address, and a statement that the sender has not received any indication that the electronic transmission was unsuccessful. Moreover, if an electronic transmission should fail, parties should be allowed to choose another authorized means of service without being required to notify the Department. Therefore, we are amending proposed § 302.7(e) by deleting paragraph (3) and adding the following language at the end of paragraph (2): “and stating that no indication was received that any transmission had failed. In the event of an electronic transmission failure, any other authorized means of service may be substituted and the appropriate proof of service provided.” Section 302.12(d)(1)(i) Confidentiality motions The present rule (§ 302.39(e)(2)(i)), the text of which is unchanged in the NPRM, states that motions for confidential treatment shall include “a description of the information sought to be withheld, sufficient for identification of the same.” Comments: Continental suggests that the rule should require such motions to contain an index of the material requested to be held confidential, including a title, description of the document, document number, and number of pages. Resolution: Upon review, we consider the instructions for identifying the material (“a description of the information sought to be withheld, sufficient for identification of the same”) to be vague, especially in cases where confidentiality is requested for multiple documents, or portions of documents, or for documents that appear similar. Therefore, we believe confidentiality motions should include an index of the documents covered by the motion. The rule is being amended to require “an index listing each document by an identifying number, and including its title, description and number of pages, and, if relevant, the specific location within a document.” Section 302.28(b) Cost of daily transcript The NPRM retains the language in the current rule (§ 302.24(l)(2)) except for the addition of a fourth factor—the cost to the Department—to be considered by the administrative law judge in determining whether ordinary or daily transcripts are needed in a particular proceeding. The rule states that if the administrative law judge determines that an ordinary transcript is adequate, any party to the proceeding may make arrangements with the reporting firm to provide a daily transcript to the Department, for which extra service the requesting party will pay. Comments: United believes that, with respect to daily transcripts, the Department should make certain that its contracts with reporting firms are enforced with respect to reasonable prices for both the Department and other parties, and that transcripts requested on a daily basis by non-Department parties are provided daily. Dade advocates that the Department should ensure that (1) both the ordinary and daily rates are reasonable, (2) “cost to the Department” is removed as a factor to be considered by the administrative law judge in deciding upon the necessity of a daily transcript, (3) daily transcripts shall be required in all proceedings involving airport fees (Subpart F), (4) the Department shares the cost equally with other parties who decide to order daily transcripts, and (5) parties are allowed to choose a different reporting firm if its rates for daily transcripts are more reasonable. ACI also recommends that the Department seek more inexpensive official reporting services for hearing cases. Resolution: Among the criteria for determining whether an ordinary or daily transcript is required in any particular proceeding, we included “cost to the Department” (§ 302.28(b)(3)) because that factor is presently taken into account by the administrative law judges. Adoption of the commenters' recommendations would inevitably lead to extensive, complex contract negotiations, including lengthy negotiations about what is “reasonable” under certain circumstances. While we appreciate the concern about costs, and the need to reduce costs for all parties including the government, procedural rulemakings are not the proper place to resolve contract costs and availability issues on this matter. In addition, we do not believe that a specific requirement for daily transcripts in subpart F proceedings should be included in the rule and will continue to leave that decision to the discretion of the presiding administrative law judge. We also see no reason to change the rule to require the Department to share equally in the cost of daily transcripts ordered by another party if the administrative law judge has determined that ordinary transcripts are adequate. In addition, we do not agree that parties should be allowed to select a court reporter different from the one selected by the administrative law judge because multiple versions of the “official” transcript may result. Therefore, we will adopt the rule as proposed. Subpart B Section 302.202(a) Maps and illustrative data The NPRM, like the present rule (§ 302.4(a)), requires applicants for certificate authority to provide the data called for in part 201 of this chapter. Comments: Continental observes that adherence to part 201 filing requirements would obligate applicants to provide a map and illustrative data in all cases. These should be required only of applicants for certificate authority “as directed by the Department.” Resolution: The requirements that applicants must provide a map showing the proposed points of service and mileages, and an illustrative service proposal, formerly found in § 201.4(c)(4) and § 201.4(e)(1), respectively, were removed in a 1992 rulemaking (see 57 FR 38765, August 27, 1992). Therefore, no change in the proposed rule is required. Section 302.202(d) Energy statement Comments: United and Continental urge the Department to remove the requirement that each application must be accompanied by an energy statement in accordance with part 313 of this chapter. [The NPRM inadvertently referred to this statement as an “Environmental Evaluation” which is incorrect and has been changed in the Final Rule.] Section 313.4(a) of that part requires applicants to file an energy statement if the air service for which authority is sought would result in a near-term net annual increase in fuel consumption of 10 million gallons or more. The objectors state that the fuel crisis of the 1970s, which prompted the issuance of this rule, is no longer relevant, and that such a statement is costly to prepare and seldom used. Resolution: Concerns about fuel consumption that arose in the 1970s have not disappeared. Today, when a proposal involves a substantial increase in fuel usage, we must conclude that the public benefits derived from the proposed service outweigh the disadvantages. Thus, it is not appropriate to remove the provision from the rule. Moreover, the part 313 requirements implementing the Energy Policy and Conservation Act (42 U.S.C. 6362(b)) have been progressively qualified and narrowed until they have been minimal in the few cases in which they have been triggered. Elaborate calculations rarely have been required, and certificate applications “where no determination of public convenience and necessity is required” are specifically excluded from this requirement (§ 313.4(b)(5)). In addition, proposed § 302.202(d) now contains the qualifier “Where required,” reflecting that, in many circumstances, information on substantial changes in fuel usage may be omitted. Therefore, no change in the proposed rule will be made, except to correct the reference to “energy statement” in place of “environmental evaluation” as noted above. Section 302.203(a)(2) Service on the FAA A new provision would require an applicant to serve a complete copy of its certificate application on the Manager of the Federal Aviation Administration Flight Standards District Office processing any FAA authority needed to conduct the proposed operations. Comments: United suggests that the Department clarify which carriers would be subject to this requirement since many would only require minor amendments to their FAA Operations Specifications. Resolution: The proposed requirement—that an applicant should serve a complete copy of its certificate application on the Manager of the FAA Flight Standards District Office processing any FAA authority needed to conduct the proposed operations—was added to enhance the information-sharing process between the Office of the Secretary and the FAA regarding an applicant's proposed new services. Even minor amendments in certificate authority could require FAA action. Therefore, we believe it is appropriate, and not unduly burdensome, for the applicant's local FAA office to be served with a copy of any application seeking a change in the applicant's certificate authority. No change in the proposed rule will be made. Section Verification (under 18 U.S.C. 1001) Current § 302.4(b) requires that every authorized or required document filed with the Department must be signed by the party filing that document or by a duly authorized representative of that party, certifying that he or she has read the document and believes every statement contained therein to be true and not misleading. In addition, current § 302.1707 requires that the facts contained in pleadings filed under current Subpart Q (new Subpart B) be attested to in an affidavit signed by persons who are knowledgeable about the facts and who would be called as witnesses to substantiate the facts if an oral hearing became necessary. New § 302.206 would require a certification in accordance with 18 U.S.C. 1001, to be signed by a knowledgeable individual (as described in § 302.1707), that, under penalty of fine and/or imprisonment, he or she has not knowingly or willfully falsified or concealed any material fact or made any false statement, or knowingly used any document containing such a statement, in connection with the preparation, filing or prosecution of the pleading. Similar certifications are required for electronic filings in accordance with instructions at the Dockets DMS internet web site. Comments: American recommends that the required certification be moved to Subpart A and amended to provide that the certification requirement applies to all pleadings, and that the certification is deemed to be incorporated in all pleadings signed by an attorney. Continental and United maintain that the requirement of an additional certification to be signed by an officer of the company is redundant to the certification presently required in § 302.4(b). United adds that the proposed verification is only needed in the rare event of a hearing case, and that, for non-hearing cases, the certification required in § 302.4(b) is sufficient. Mr. Fahy recommends that the proposed certification requirement be limited to applicants for initial certificate authority. Resolution: It has been our concern that the “subscription” required in § 302.4(b) and the “verification” required in current § 302.1707 do not sufficiently bind the applicant in all cases. We have experienced a number of proceedings in which an outside attorney or other person engaged to prepare and file the application has signed a subscription attesting to the veracity of the statements and other material in the documents filed when in actuality that individual was attesting only to the fact that the information had been represented by his or her client as being accurate. We believe that a certification of veracity is more reliable when signed by a principal of the applicant. The current subscription in § 302.4(b), which requires a certification to be signed by “the [filing] party, or by a duly authorized officer or the attorney-at-law of record of such party, or by any other person so authorized” is not as broad as the verification in current § 302.1707, which requires an attestation of the “facts asserted in any pleading” by “persons having knowledge of them.” In § 204.3(v) of this chapter, applicants filing information in support of a fitness determination are required to include a verification in accordance with 18 U.S.C. 1001 to be signed by the person signing the pleading, “who shall be a principal owner, senior officer, or internal counsel of the applicant.” In our experience, the contents of pleadings covered by the latter attestation have been found to be the most truthful and accurate. For these reasons, we disagree with American's view that the certification should be deemed to be incorporated in all pleadings signed by an attorney, but we agree with its recommendation that the certification should apply to all types of pleadings and should be relocated to subpart A. We also agree with Continental and United that two such certifications (§ 302.4(b) and § 302.206) are superfluous. We appreciate United's argument that the verification as proposed in § 302.206, which is to be signed by “someone who will appear as a witness to substantiate the facts asserted if an oral hearing becomes necessary,” is misleading inasmuch as hearing cases are now rare events. Therefore, we have decided to change § 302.206 so that it merely refers readers to § 302.4(b), which is being amended to read as follows: “ Verification : The following certification shall be included with every pleading filed under this part: `Pursuant to Title 18 United States Code Section 1001, I [ the individual signing the pleading, who shall be a principal owner, senior officer, or internal counsel of the pleader ], in my individual capacity and as the authorized representative of the pleader, have not in any manner knowingly and willfully falsified, concealed or failed to disclose any material fact or made any false, fictitious, or fraudulent statement or knowingly used any documents which contain such statements in connection with the preparation, filing or prosecution of the pleading. I understand that an individual who is found to have violated the provisions of 18 U.S.C. section 1001 shall be fined or imprisoned not more than five years, or both.' “ We believe that restating the sanctions for violating 18 U.S.C. 1001 will serve as a visual reminder to the signer of the gravity of his or her attestation. Section 302.212 International route cases—applicability In the NPRM, the provisions in current §§ 302.1701(a) and 1720(c) would be combined to provide that any person may file an application for the same authority as sought in an application to obtain, renew, amend, or transfer a certificate authorizing air transportation over an international route. Comments: United points out that, by combining language from the two current sections, the Department seems to be inviting applications from competing carriers seeking authority that is the subject of a transfer application, although the Department's policy has been not to entertain competing applications relating to certificate transfers. Resolution: The proposed combining of the provisions of current §§ 302.1701(a) and 1720(c) into new § 302.212(a) would not result in a change in the current policy. As United notes, the proposed rule allows the filing of applications from competing carriers for authority that is the subject of a transfer application, despite the Department's general policy of not entertaining such applications ( see Orders 92-3-49 at 7 and 91-8-1). We agree with United and have removed certificate transfers from the provisions of § 302.212(c) which allows for the filing of conforming applications in other types of certificate cases. Subpart C Section 302.301 Exemptions This section states that Subpart C contains the rules applicable to proceedings for exemptions under sections 40109 and 41714 of the Statute, including emergency exemptions. Comments: American, United, and Continental propose that the rules for exemptions also apply to applications for frequency allocations under international agreements. Resolution: We agree with the commenting air carriers that the rules for exemptions in new subpart C should also apply to applications for frequency allocations under international agreements. Indeed, the carriers' suggestion can usefully be applied to other proceedings in which the Department must allocate limited bilateral rights, such as third-country code-sharing, charters, or designation to exercise other limited opportunities. While we often will issue a notice or order to establish procedures in such cases, it will be helpful to identify exemption procedures in this subpart as the “default” process to be followed unless or until we specify otherwise. We will amend § 302.301 accordingly and revise the title of the subpart to “Rules Applicable to Exemption and Certain Other Proceedings.” Section 302.304(a)(2)—Service of notices of exemptions The proposed rule (formerly § 302.403(b)), requires that persons filing an application for an exemption shall serve a notice that the application has been filed. Comments: United argues that the exemption itself, not a notice, should be served since the answer period is short and the exemptions are usually not voluminous. Resolution: We concede United's point that it is more expedient when interested parties in an exemption proceeding are served with the entire exemption application, rather than merely a notice. We have found that most applicants already serve complete applications voluntarily. Moreover, if such “full service” were the rule, it would eliminate the need for the Department to make a determination in each case whether the proceeding is likely to be contested and then ordering service of the complete application. Such a rule also would likely reduce the number of late-filed comments. After consideration, we believe that the added burden on applicants of serving complete applications (which are generally not lengthy) is not so substantive as to outweigh the benefit to interested parties in terms of more timely access to the entire application and to the Department in terms of facilitated procedures. Therefore, we will amend § 302.304(a)(2) accordingly. Section 302.304(b)(4) Service of documents in slot exemptions This new provision requires applicants for slot exemptions under section 41714 of the Statute to serve the manager of the affected airport, the mayor of the city that it serves, and the Governor of the State in which it is located. Comments: American, United and Continental advocate that slot exemption applications should also be served on all U.S. carriers that publish schedules in the Official Airline Guides for the airport in question. Resolution: We appreciate the rationale of the responding airlines in asserting that U.S. carriers providing scheduled service to an airport at which an applicant is seeking a slot exemption are “interested parties” and should be served copies of the exemption application. Consequently, we will amend § 302.304(b)(4) to provide for service to such carriers by applicants for slot exemptions. Section 302.308 Replies to answers This rule (former § 302.407) provides that an applicant may file a reply to answers to an exemption application within seven days of the last day of the answer period. Comments: American, United, and Continental contend that, not only applicants, but any interested party, should be allowed to file a reply in exemption proceedings, as is allowed in certificate and licensing cases, so that other parties will not need to request leave to file their replies. Resolution: We agree with the responding airlines that any interested party should be allowed to file a reply in exemption proceedings. Liberalizing the rule in this way will save parties the burden of having to file, and the Department of having to rule on, motions for leave to file unauthorized documents. Therefore, we will amend § 302.308 accordingly. Subpart D Section 302.403 Informal complaints Comments: Continental argues that the information and allegations contained in an informal complaint and the identity of the complainant should be kept confidential. Resolution: What Continental proposes reflects our existing practice with respect to maintaining the confidentiality of the contents of an informal complaint and the identity of the complainant. We plan to continue this practice in the future. However, in the course of conducting an informal investigation, we may at times have to reveal this information to the investigated party if necessary to obtain its response to the complaint. Our experience is that this existing practice is an effective use of limited resources, expedites the investigation, and increases accuracy without unduly prejudicing the rights of the parties involved. Section 302.406 Action time on formal enforcement complaints The rule (adapted from the existing practice under current § 302.205(a)) allows the Assistant General Counsel a “reasonable time” after the filing of an answer to a formal complaint to either issue a notice instituting a formal enforcement proceeding or an order dismissing the complaint. Comments: United recommends the retention of the existing rule, which requires Department staff to process or dismiss an enforcement complaint within 60 days, which will avoid indefinite delays. United notes that no reason was given in the NPRM for the proposed change. Resolution: We disagree with United and will adopt the rule as proposed. We have found that most third-party complaints require considerable time-consuming follow-up investigation by the Office of Aviation Enforcement and Proceedings, and this proposed change would reflect the current Department and industry practice in dealing with third-party complaints. Our experience is that the 60 days set forth in the existing rule rarely, if ever, permits enough time to conduct an investigation and satisfactorily resolve issues that may be raised. We are, however, sensitive to United's concerns about indefinite delays, and will endeavor to ensure that investigations are conducted as promptly as possible. We note that a complainant or respondent retains the right under the rules as revised to move that the Deputy General Counsel require the Assistant General Counsel to act if he or she finds there to be an unreasonable delay in acting on a formal complaint. Subpart E Sections 302.501-302.507 Rates, Fares and Charges in Foreign Air Transportation Comments: United points out that a related rulemaking proposes to eliminate the requirement that rates and charges for certain foreign air transportation be filed in tariffs (see NPRM 97-1, issued in Docket OST-97-2070 (62 FR 10758, March 10, 1997)). United asserts that elimination of the requirement to file tariffs would be problematical since the procedures for complaining against foreign rates, fares, and charges are linked to the submission of the matter in a tariff. United urges that the Department determine how the tariff changes in the rulemaking cited above will affect Subpart E and consolidate the two actions. Resolution: Under the NPRM issued in Docket OST-97-2070, current part 302 procedures would continue in force for complaints against tariffs in those markets where we require that tariffs be filed. Since these markets are restrictive, we expect that most, if not all, complaints against carrier pricing would arise in just these markets. However, there are other remedies that U.S. carriers may take in the unlikely event that a foreign carrier or government pricing practice adversely affects their interests in the markets where tariffs are no longer filed. For example, U.S. carriers can bring the matter to the attention of the Department which can address the matter through direct contact with foreign officials, or, under the terms of the proposed rule, could require the foreign carrier to file its tariffs. Once the tariff was filed, normal complaint procedures would apply. No change in the proposed rules will be made. Subpart F Section 302.605 Service of documents The proposed rule (current § 302.605(b)) requires parties filing a complaint about airport fees to submit a copy of each diskette to Department of Transportation Dockets, the Office of the Chief Administrative Law Judge (M-50), and to the Chief of the Economic and Financial Analysis Division of the Office of Aviation Analysis (X-55). Comments: ACI notes that, due to security procedures, persons filing diskettes with M-50 and X-55 have difficulty gaining entrance to the DOT building, and recommends that the Department make other arrangements for the latter two offices to receive the diskettes. Resolution: To facilitate service of diskette copies of complaints about airport fees, we will amend § 302.605(b) to indicate that service of all of the diskettes will be acceptable if made at Department of Transportation Dockets. Parties may also use the electronic document filing system available through the DOT Dockets DMS internet web site. In addition, because of certain organizational changes made at the Department, we will remove the reference to the Chief of the Economic and Financial Analysis Division and refer only to the Office of Aviation Analysis (X-50), and change the reference to the Office of Chief Administrative Law Judge to Office of Hearings (M-20). General Comments: Continental suggests that, since applicants may petition for reconsideration of final Department actions, intermediate review procedures are unnecessary; therefore, the Department should consider eliminating tentative decisions of the DOT decisionmaker and show-cause orders. Resolution: We appreciate Continental's suggestion with respect to intermediate actions and concede that the matter is deserving of review. However, such an evaluation would be a significant undertaking and would require the issuance of a separate NPRM, since the issue would generate considerable interest. For the present, since our current procedures fulfill our obligations under the Administrative Procedures Act, we will not modify them at this time. Changes to Filing Time Periods The NPRM proposed to decrease a number of the time periods for filing responsive pleadings in U.S. and foreign air carrier licensing cases in an effort to expedite those proceedings. For example, in new §§ 302.204 and 302.212, we proposed to shorten the period allowed for answers to U.S. air carrier certificate applications from twenty-eight (28) to twenty-one (21) days. A number of comments to the NPRM suggested further changes to the current and proposed filing periods in part 302. We believe that the commenters' proposals have merit to the extent that they suggest reducing filing periods for a number of items, which, in turn, will enable us to expedite proceedings even further. Some of the comments also suggest other changes, such as eliminating separate dates for filing exceptions and briefs in hearing cases. Except for the changes to the filing periods in licensing cases proposed in the NPRM, most of the time periods in part 302 have not been comprehensively reviewed in a number of years. Moreover, as we have already noted, the Department's own practices and procedures have changed dramatically in recent years with the overwhelming majority of cases being handled on the written record rather than through oral evidentiary proceedings. As a result, we have decided to re-evaluate all of the time periods in part 302 to determine whether any changes are warranted. We have decided to issue a Supplemental Notice of Proposed Rulemaking to deal with this issue, and we will consider the additional changes proposed by some of the commenters in that Supplemental Notice. The following discussion identifies the various references to filing periods for which we did propose changes in the NPRM, summarizes and evaluates relevant comments received about them, if any, and indicates whether the changes are being adopted as proposed or with revisions. Licensing Cases Section 302.204 Responsive documents in certificate/permit proceedings The NPRM proposed to shorten the answer period to U.S. air carrier certificate applications (both initial fitness and international route awards) and in foreign air carrier permit cases (current § 302.1720(d)) from twenty-eight (28) to twenty-one (21) days after the original or amended application is filed, and added a reply period of fourteen (14) days. Comments: American proposes a further shortening of the answer period to ten (10) days. American, United, and Continental also advocate shortening the newly proposed period for replies from fourteen (14) to seven (7) days. Mr. Fahy opposes the additional shortening urged by the air carriers, stating that additional time is often needed, particularly by small firms, to prepare the responses. Resolution: After considering the matter further, we have decided to adopt the proposed twenty-one (21)-day period for answers and fourteen (14)-day period for replies. We will consider the suggested additional changes in the supplemental rulemaking. Section 302.208 Petitions for oral presentation or judge's decision The current rule (§ 302.1712(c)) allows for petitions requesting an oral evidentiary proceeding, oral argument or the issuance of an administrative law judge decision to be filed in certificate cases fifty-two (52) days after the application is filed; in restriction removal cases thirty-five (35) days after the application is filed; and in foreign permit cases fourteen (14) days after the due date for answers. The proposed rule (§ 302.208) replaces and is almost identical to the current rule, except for the timing of the filing of the petitions. Proposed § 302.208(b) provides that petitions shall be filed no later than the due date for answers in proceedings governed by proposed § 302.211, § 302.212, and § 302.213, which is proposed to be twenty-one (21) days. In addition, proposed § 302.208(a) provides that such petitions shall be supported by a detailed explanation of: “(1) Why the evidence or argument to be presented cannot be submitted in the form of written evidence or briefs; (2) which issues should be examined by an administrative law judge and why such issues should not be presented directly to the DOT decisionmaker for decision; (3) an estimate of the time required for the oral presentation and the number of witnesses whom the petitioner would present; and (4) if cross-examination of any witness is desired, the name of the witness, if known, the subject matter of the desired cross-examination or the title or number of the exhibit to be cross-examined, what the petitioner expects to establish by the cross-examination, and an estimate of the time needed for it.” Comments: Mr. Fahy argues that the proposed rule would require petitions asking for oral hearing to be filed at the same time answers are due to certificate/permit applications. Included in the petition must be witness names, issues to be examined, subject matter of cross-examination—information that may not yet be known at the time of the objection. Mr. Fahy recommends replacing these data requirements with “a good cause showing” of why a hearing is necessary. If the Department applies the proposed conditions in certificate cases, he contends, it may apply the same standards in other cases, e.g., foreign code-share arrangements. Resolution: After evaluating the comments, we have decided to adopt the proposal that petitions be due at the same time as answers to applications, which we have now set at twenty-one (21) days. However, we agree with Mr. Fahy that information on potential witnesses and time required for oral presentations would unlikely be known at the time the petition is filed. Therefore, we are amending the rule to require the petition to contain items (1) and (2) as part of the petition itself, with items (3) and (4) to be filed at a later time if the Department decides to have or is leaning toward having an oral hearing. Section 302.212 Procedures in certificate cases involving international routes The proposed rule shortens the period in current § 302.1720(c) for filing conforming applications [for the same authority as sought in an application to obtain, renew, or amend a certificate] and requests to modify the issues to be decided and to consolidate applications, from twenty-eight (28) to twenty-one (21) days after filing of the original application. Answers would continue to be due within fourteen (14) days after the filing of the conforming application or motion. Comments: American advocates shortening the period for filing conforming applications even further, to ten (10) days, and both American and Continental suggest adopting a seven (7)-day answer period. Mr. Fahy opposes any further shortening of these periods. Resolution: We have decided that the filing time for conforming applications and motions to modify scope should be set at twenty-one (21) days as proposed so that the dates for filing objections, requests for hearing, conforming applications, and motions to modify scope would all be due on the same date. In this way, the parties and the Department would be presented with one set of filings. Generally, our experience has been that, if one air carrier objects to the application for an international route submitted by another air carrier, it is likely that the objector expects to apply for the authority being requested; therefore, the objector would save the effort of a separate filing by accompanying its objection with its request for the authority. We will, however, consider the additional changes proposed by the commenters in the supplemental rulemaking. Mail Rate Cases Section 302.704 Objections and answers to order to show cause The proposed rule, which is identical to current § 302.305, provides that a notice of objection to the rates proposed in an order to show cause is due within ten (10) days of issuance or the order or within such other period as the order may specify. If such a notice is properly filed, written answers and any supporting documents shall be filed within thirty (30) days after the service of the order to show cause or within such other period as the order may specify. Comments: American argues that separate dates for objections and answers are unnecessary and recommends that the rule require that fully supported objections be filed within ten (10) days of service of the order to show cause. Resolution: Subsequent to the issuance of the NPRM, the Department, in Order 97-9-37, served October 3, 1997, proposed to eliminate the provision for notices of objection and to extend the answer period to forty-five (45) days after the service date of the show cause order for Alaska bush and mainline mail rates. Order 97-11-20, served November 19, 1997, made final this proposed change to the procedural schedule for Alaska mail rate orders. In addition, in Order 98-6-16, served June 23, 1998, the Department, among other things, proposed identical procedural changes for international mail rates. No objections to this proposed change were received. After reviewing the matter, we are eliminating the provision for separate filing dates and amending the rule to require only answers to be filed within forty-five (45) days of the date of service of the order to show cause, unless otherwise stated in that order. Correction of References to Sections in Part 302 Throughout Chapter II The following table contains the changes that are being made throughout Chapter II to correct what are now obsolete references to sections in part 302. Location of rule to be changed Current reference to part 302 Revised reference to part 302 § 200.2 § 302.2 § 302.1(c) § 211.12 Subpart Q Subpart B § 213.2 Rule 37 Rule 14 § 213.5(c) Rule 37 Rule 14 § 216.4(a) §§ 302.3(b), 302.4(b), (c) §§ 302.3(b), 302.4(a), (b) § 216.4(b) § 302.8 § 302.7 § 291.10 Subpart Q Subpart B § 300.2(b)(2) § 302.22a §§ 302.2, 302.18 § 300.2(b)(4) § 302.24 §§ 302.17-302.38 § 300.2(c)(10) § 302.18 § 302.11 § 300.2(d) §§ 302.14, 302.18 § 302.11(e) § 300.20(c) Subpart B Subpart D § 303.4(b) § 302.19 § 302.25 § 303.45(c) § 302.15 § 302.20 § 305.7(b) §§ 302.8, 302.21 §§ 302.7, 302.27(c) § 305.10 §§ 302.19(g), 302.39 §§ 302.25(g), 302.12 § 305.11 Subpart B Subpart D § 305.12 § 302.202 §§ 302.4(b) § 377.10(c)(4) § 302.909 Removed § 385.10(b) Subpart B Subpart D § 385.11(b) Subpart B Subpart D § 385.11(d) § 302.215 § 302.417 § 385.19(i) § 302.39 § 302.12 § 385.31(c) §§ 302.3(a), (b), (c), 302.4 §§ 302.3, 302.4 § 399.18 § 302.909 Removed Executive Order 12866 (Regulatory Planning and Review) The Department has analyzed the economic and other effects of the amendment and has determined that they are not “significant” within the meaning of Executive Order 12866. The amendment will not have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. It will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency, and it will not materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof. Nor does it raise any novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in Executive Order 12866. This rule does not impose any unfunded mandates. DOT Regulatory Policies and Procedures The amendment is not significant under the Department's Regulatory Policies and Procedures, dated February 26, 1979, because it does not involve important Departmental policies; rather, it is being made solely for the purposes of eliminating or correcting obsolete requirements and reorganizing the presentation of the regulations used by the Department to administer its aviation economic regulatory functions. The Department has also determined that the economic effects of the amendment are so minimal that a full regulatory evaluation is not required. Regulatory Flexibility Act In accordance with the Regulatory Flexibility Act, the Department has evaluated the effects of this action on small entities, i.e., those air carriers operating small aircraft (as defined in 14 CFR 298.2) in strictly domestic service. The changes to the Department's Rules of Practice in Proceedings merely eliminate unnecessary and obsolete verbiage, reorganize the provisions and bring them up to date with our current practice, and place no new requirements on applicants. Therefore, the Department certifies that the amendment will not have a significant economic impact on a substantial number of small entities. Executive Order 12612 (Federalism) The amendment has been analyzed in accordance with the principles and criteria contained in Executive Order 12612. The Department has determined that the amendment does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. This amendment will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. National Environmental Policy Act The Department has also analyzed the amendment for the purposes of the National Environmental Policy Act. The amendment will not have any significant impact on the quality of the human environment. Paperwork Reduction Act There are no reporting or recordkeeping requirements associated with the amendment. List of Subjects 14 CFR Part 200 Air transportation. 14 CFR Part 211 Administrative practice and procedure, Air carriers, Pacific Islands Trust Territory, Reporting and Recordkeeping requirements. 14 CFR Part 213 Air carriers, Reporting and Recordkeeping requirements. 14 CFR Part 216 Air carriers. 14 CFR Part 291 Administrative practice and procedure, Air carriers, Freight, Reporting and Recordkeeping requirements. 14 CFR Part 300 Administrative practice and procedure, Conflict of interests. 14 CFR Part 302 Administrative practice and procedure, Air carriers, Foreign air carriers. 14 CFR Part 303 Administrative practice and procedure, Air carriers, Antitrust, Reporting and Recordkeeping requirements. 14 CFR Part 305 Administrative practice and procedure, Air carriers, Investigations. 14 CFR Part 377 Administrative practice and procedure, Air carriers. 14 CFR Part 385 Administrative practice and procedure, Organization and functions (Government Agencies). 14 CFR Part 399 Administrative practice and procedure, Air carriers, Air rates and fares, Air taxis, Consumer protection, Small businesses. Final Rule For the reasons set out in the preamble, Title 14, Chapter II of the Code of Federal Regulations is amended as follows: PART 200—[AMENDED] 1. The authority citation for part 200 continues to read as follows: Authority: 49 U.S.C. Chapters 401, 411, 413, 415, 419, 461. § 200.2 [Amended] 2. In § 200.2, remove the reference “§ 302.2” and add, in its place, the reference “§ 302.1(c)”. PART 211—[AMENDED] 3. The authority citation for part 211 continues to read as follows: Authority: 49 U.S.C. Chapters 401, 411, 413, 415, 417. § 211.12 [Amended] 4. In § 211.12, remove the reference “Subpart Q” and add, in its place, the reference “Subpart B”. PART 213—[AMENDED] 5. The authority citation for part 213 continues to read as follows: Authority: 49 U.S.C. Chapters 401, 411, 413, 415, 417. § 213.2 [Amended] 6. In § 213.2, remove the reference “Rule 37” and add, in its place, the reference “Rule14 ”. § 213.5 [Amended] 7. In § 213.5(c), remove the reference “Rule 37” and add, in its place, the reference “Rule 14”. PART 216—[AMENDED] 8. The authority citation for part 216 is revised to read as follows: Authority: 49 U.S.C. Chapters 401, 413, 417. § 216.4 [Amended] 9. In § 216.4(a), remove the references “302.4(b) and (c)” and add, in their place, the references “302.4(a) and (b)”. 10. In § 216.4(b), remove the reference “§ 302.8” and add, in its place, the reference “§ 302.7”. PART 291—[AMENDED] 11. The authority citation for part 291 continues to read as follows: Authority: 49 U.S.C. Chapters 401, 411, 415, 417. § 291.10 [Amended] 12. In § 291.10, remove the reference “subpart Q” and add, in its place, the reference “subpart B”. PART 300—[AMENDED] 13. The authority citation for part 300 is revised to read as follows: Authority: 49 U.S.C. subtitle I and chapters 401, 411, 413, 415, 417, 419, 421, 449, 461, 463, and 465. § 300.2 [Amended] 14. In § 300.2(b)(2), remove the reference “302.22a” and add, in its place, the references “302.2 and 302.18”. 15. In § 300.2(b)(4)(i), remove the reference “§ 302.24” and add, in its place, the references “§§ 302.17-302.38”. 16. In § 300.2(c)(10), remove the reference “§ 302.18” both times it occurs, and add, in its place, the reference “§ 302.11” both times it occurs. 17. In § 300.2(d), remove the references “Rules 14 and 18, §§ 302.14 and 302.18” and add, in their place, the references “Rule 11, § 302.11”. § 302.18 [Redesignated in part and revised] 18. Paragraph (a-1) of § 302.18 is redesignated as § 300.18 and revised to read as follows: § 300.18 Motions to disqualify DOT employee in review of hearing matters. In cases to be determined on an evidentiary record, a party desiring that a concerned DOT employee disqualify himself or herself from participating in a DOT decision shall file a motion supported by an affidavit setting forth the grounds for such disqualification in the form and within the periods prescribed in § 302.11 of this chapter. Where review of the administrative law judge's decision can be obtained only upon the filing of a petition for discretionary review, such motions must be filed on or before the date answers are due pursuant to § 302.32. In cases where exceptions are filed to recommended, initial, or tentative decisions or where the DOT decisionmaker orders review of an initial or recommended decision on his or her own initiative, such motions must be filed on or before the date briefs are due pursuant to § 302.35 or § 302.218, as applicable. Failure to file a timely motion will be deemed a waiver of disqualification. Applications for leave to file an untimely motion seeking disqualification of a concerned DOT employee must be accompanied by an affidavit setting forth in detail why the facts relied upon as grounds for disqualification were not known and could not have been discovered with reasonable diligence within the prescribed time. § 300.20 [Amended] 19. In § 300.20(c), remove the reference “subpart B”, and add, in its place, the reference “subpart D”. PART 303—[AMENDED] 20. The authority citation for part 303 is revised to read as follows: Authority: 49 U.S.C. chapters 401, 413, 417. § 303.04 [Amended] 21. In § 303.04(b), remove the reference “302.19” and add, in its place, the reference “302.25”. § 303.45 [Amended] 22. In § 303.45(c), remove the reference “§ 302.15” and add, in its place, the reference “302.20”. PART 305—[AMENDED] 23. The authority citation for part 305 is revised to read as follows: Authority: 49 U.S.C. chapters 401, 417, 461; 5 U.S.C. 555, 556. § 305.7 [Amended] 24. In § 305.7(b), remove the references “§ 302.21” both times it occurs, and “§ 302.8” both times it occurs, and add, in their place, the references “§ 302.7” and “§ 302.27(c)”, respectively. § 305.10 [Amended] 25. In § 305.10, remove the references “§§ 302.19(g) and 302.39” and add, in their place, the references “§§ 302.25(g) and 302.12”. § 305.11 [Amended] 26. In § 305.11, remove the reference “subpart B” and add, in its place, the reference “subpart D”. § 305.12 [Amended] 27. In § 305.12, remove the reference “Rule 202” and add, in its place, the reference “Rule 4(b)”. PART 377—[AMENDED] 28. The authority citation for part 377 is revised to read as follows: Authority: 49 U.S.C. Chapters 401, 461; 5 U.S.C. 558, 559. § 377.10 [Amended] 29. In § 377.10(c)(4), remove the references “§§ 302.909 and 399.18” and add, in their place, the reference “§ 399.18”. PART 385—[AMENDED] 30. The authority citation for part 385 continues to read as follows: Authority: 49 U.S.C. subtitle I, chapters 401, 411, 413, 415, 417. §§ 385.10, 385.11 [Amended] 31. In §§ 385.10(b) and 385.11(b), remove the reference “Subpart B” and add, in its place, the reference “Subpart D”. § 385.19 [Amended] 32. In § 385.19(i), remove the reference “§ 302.39” and add, in its place, the reference “§ 302.12”. § 385.31 [Amended] 33. In paragraphs (a) and (e) of § 385.31, remove the words “ten (10)” and add, in their place, the words “seven (7)”; in § 302.31(c), remove the references “(a), (b), and (c),”. PART 399—[AMENDED] 34. The authority citation for part 399 is revised to read as follows: Authority: 49 U.S.C. 40101 et seq. § 399.18 [Amended] 35. In § 399.18, remove the words “§ 302.909 of this chapter (Procedural Regulations) and”. 36. Part 302 is revised to read as follows: PART 302—RULES OF PRACTICE IN PROCEEDINGS Sec. 302.1 Applicability and description of part. 302.2 Definitions. Subpart A—Rules of General Applicability 302.3 Filing of documents. 302.4 General requirements as to documents. 302.5 Amendment of documents. 302.6 Responsive documents. 302.7 Service of documents. 302.8 Computation of time. 302.9 Continuances and extensions of time. 302.10 Parties. 302.11 Motions. 302.12 Objections to public disclosure of information. 302.13 Consolidation of proceedings. 302.14 Petitions for reconsideration. Non-Hearing Proceedings 302.15 Non-hearing procedures. Rulemaking Proceedings 302.16 Petitions for rulemaking. Oral Evidentiary Hearing Proceedings 302.17 Administrative law judges. 302.18 DOT decisionmaker. 302.19 Participation by persons not parties. 302.20 Formal intervention. 302.21 Appearances. 302.22 Prehearing conference. 302.23 Hearing. 302.24 Evidence. 302.25 Subpoenas. 302.26 Depositions. 302.27 Rights of witnesses; attendance fees and mileage. 302.28 Transcripts of hearings. 302.29 Argument before the administrative law judge. 302.30 Briefs to the administrative law judge. 302.31 Initial and recommended decisions; certification of the record. 302.32 Petitions for discretionary review of initial decisions or recommended decisions; review proceedings. 302.33 Tentative decision of the DOT decisionmaker. 302.34 Exceptions to tentative decisions of the DOT decisionmaker. 302.35 Briefs to the DOT decisionmaker. 302.36 Oral argument before the DOT decisionmaker. 302.37 Waiver of procedural steps after hearing. 302.38 Final decision of the DOT decisionmaker. Subpart B—Rules Applicable to U.S. Air Carrier Certificate and Foreign Air Carrier Permit Licensing Proceedings 302.201 Applicability. 302.202 Contents of applications. 302.203 Service of documents. 302.204 Responsive documents. 302.205 Economic data and other facts. 302.206 Verification. Disposition of Applications 302.207 Cases to be decided on written submissions. 302.208 Petitions for oral presentation or judge's decision. 302.209 Procedures for deferral of applications. 302.210 Disposition of applications; orders establishing further procedures. 302.211 Procedures in certificate cases involving initial or continuing fitness. 302.212 Procedures in certificate cases involving international routes. 302.213 Procedures in foreign air carrier permit cases. 302.214 Oral evidentiary hearing. 302.215 Briefs to the administrative law judge. 302.216 Administrative law judge's initial or recommended decision. 302.217 Exceptions to administrative law judge's initial or recommended decision. 302.218 Briefs to the DOT decisionmaker. 302.219 Oral argument before the DOT decisionmaker. 302.220 Final decision of the Department. Subpart C—Rules Applicable to Exemption and Certain Other Proceedings 302.301 Applicability. 302.302 Filing of applications. 302.303 Contents of applications. 302.304 Service of documents. 302.305 Posting of applications. 302.306 Dismissal or rejection of incomplete applications. 302.307 Answers to applications. 302.308 Replies to answers. 302.309 Requests for hearing. 302.310 Exemptions on the Department's initiative. 302.311 Emergency exemptions. Subpart D—Rules Applicable to Enforcement Proceedings 302.401 Applicability. 302.402 Definitions. 302.403 Informal complaints. 302.404 Formal complaints. 302.405 Responsive documents. 302.406 Procedure for responding to formal complaints. 302.407 Commencement of enforcement proceeding. 302.408 Answers and replies. 302.409 Default. 302.410 Consolidation of proceedings. 302.411 Motions to dismiss and for summary judgment. 302.412 Admissions as to facts and documents. 302.413 Evidence of previous violations. 302.414 Prehearing conference. 302.415 Hearing. 302.416 Appearances by persons not parties. 302.417 Settlement of proceedings. 302.418 Motions for immediate suspension of operating authority pendente lite. 302.419 Modification or dissolution of enforcement actions. 302.420 Saving clause. Subpart E—Rules Applicable to Proceedings With Respect to Rates, Fares and Charges for Foreign Air Transportation 302.501 Applicability. 302.502 Institution of proceedings. 302.503 Contents and service of petition or complaint. 302.504 Dismissal of petition or complaint. 302.505 Order of investigation. 302.506 Complaints requesting suspension of tariffs; answers to such complaints. 302.507 Computing time for filing complaints. Subpart F—Rules Applicable to Proceedings Concerning Airport Fees 302.601 Applicability. 302.602 Complaint by a carrier; request for determination by an airport owner or operator. 302.603 Contents of complaint or request for determination. 302.604 Answers to a complaint or request for determination. 302.605 Replies. 302.606 Review of complaints or requests for determination. 302.607 Decision by administrative law judge. 302.608 Petitions for discretionary review. 302.609 Completion of proceedings. 302.610 Final order. Subpart G—Rules Applicable to Mail Rate Proceedings and Mail Contracts 302.701 Applicability. Final Mail Rate Proceedings 302.702 Institution of proceedings. 302.703 Order to show cause or instituting a hearing. 302.704 Objections and answers to order to show cause. 302.705 Further procedures. 302.706 Hearing. Provision for Temporary Rate 302.707 Procedure for fixing temporary mail rates. Informal Mail Rate Conference Procedure 302.708 Invocation of procedure. 302.709 Scope of conferences. 302.710 Participants in conferences. 302.711 Conditions upon participation. 302.712 Information to be requested from an air carrier. 302.713 DOT analysis of data for submission of answers thereto. 302.714 Availability of data to the U.S. Postal Service. 302.715 Post-conference procedure. 302.716 Effect of conference agreements. 302.717 Waiver of participant conditions. Processing Contracts for the Carriage of Mail in Foreign Air Transportation 302.718 Filing. 302.719 Explanation and data supporting the contract. 302.720 Service. 302.721 Complaints. 302.722 Answers to complaints. 302.723 Further procedures. 302.724 Petitions for reconsideration. Appendix A to Part 302—Index to Rules of Practice Authority: 39 U.S.C. 5402; 42 U.S.C., 4321, 49 U.S.C. Subtitle I and Chapters 401, 411, 413, 415, 417, 419, 461, 463, 471. § 302.1 Applicability and description of part. (a) Applicability. This part governs the conduct of all aviation economic proceedings before the Department whether instituted by order of the Department or by the filing with the Department of an application, complaint, petition, motion, or other authorized or required document. This part also contains delegations to administrative law judges and to the DOT decisionmaker of the Department's function to render the agency decision in certain cases and the procedures for review of those decisions. This part applies unless otherwise specified by order of the Department. (b) Description. Subpart A of this part sets forth general rules applicable to all types of proceedings. Each of the other subparts of this part sets forth special rules applicable to the type of proceedings described in the title of the subpart. Therefore, for information as to applicable rules, reference should be made to subpart A and to the rules in the subpart relating to the particular type of proceeding, if any. In addition, reference should be made to Subtitle VII of Title 49 of the United States Code (Transportation) (“the Statute”), and to the substantive rules, regulations and orders of the Department relating to the proceeding. Wherever there is any conflict between one of the general rules in subpart A and a special rule in another subpart applicable to a particular type of proceeding, the special rule will govern. (c) Reference to part and method of citing rules. This part may be referred to as the “Rules of Practice”. Each section, and any paragraph or subparagraph thereof, may be referred to as a “Rule”. The number of each rule need include only the numbers and letters at the right of the decimal point. For example, “302.7 Service of documents ”, may be referred to as “Rule 7”. § 302.2 Definitions. Administrative law judge as used in this part means an administrative law judge appointed pursuant to 5 U.S.C. 3105. DOT Decisionmaker as used in this part is the official authorized to issue final decisions of the Department as set forth in § 302.18. This includes the Assistant Secretary for Aviation and International Affairs, the senior career official in the Office of the Assistant Secretary for Aviation and International Affairs, the Deputy Secretary, and the Secretary. Hearing case or oral hearing case means any proceeding that the Department has determined will be conducted on the record using oral evidentiary procedures subject to 5 U.S.C. 556 and 557. Non-hearing case means any proceeding not involving oral evidentiary procedures. Party as used in this part includes the person initiating a proceeding, such as an applicant, complainant, or petitioner; any person filing an answer to such filing; and any other persons as set forth in § 302.10. Statute when used in this chapter means Subtitle VII of Title 49 of the United States Code (Transportation). Subpart A—Rules of General Applicability § 302.3 Filing of documents. (a) Filing address, date of filing, hours. (1) Documents required by any section of this part to be filed with the Department must be filed with Department of Transportation Dockets at the Department's offices in Washington, DC. Documents may be filed either on paper or by electronic means using the process set at the DOT Dockets Management System (DMS) internet website. (2) Such documents will be deemed to be filed on the date on which they are actually received by the Department. Documents must be filed between the hours of 9:00 a.m. and 5:00 p.m., eastern standard or daylight savings time, whichever is in effect in the District of Columbia at the time, Monday to Friday, inclusive, except on legal holidays. Electronic filings may be made at any time under the process set by the Department. Electronic filings that are received after the specified Dockets Facility hours shall be deemed to be constructively received on the next Dockets Facility business day. (b) Formal specifications of documents. (1) Documents filed under this part must be on white paper not larger than 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. Unless otherwise specified, an executed original, along with the number of true copies set forth below for each type of proceeding, must be filed with Department of Transportation Dockets. The copies filed need not be signed, but the name of the person signing the original document, as distinguished from the firm or organization he or she represents, must also be typed or printed on all copies below the space provided for signature. Electronic filers need only submit one copy of the document, which must conform to the submission requirements given in the electronic filing instructions at the specified DOT DMS internet website and in this part, as applicable. Number of copies Airport Fees 9 Agreements: International Air Transport Association (IATA) 6 Other (under 49 U.S.C. 41309) 9 Complaints: Enforcement 5 Mail Contracts 4 Rates, Fares and Charges in Foreign Air Transportation 6 Unfair Practices in Foreign Air Transportation 7 Employee Protection Program (14 CFR 314) 7 Exemptions: Computer Reservations Systems (14 CFR 255) 8 Slot Exemptions (under 49 U.S.C. 41714) 7 Tariffs (under 49 U.S.C. Chapter 415 or 14 CFR 221) 5 Other (under 49 U.S.C. 40109) 7 Foreign Air Carrier Permits/Exemptions 7 International Authority for U.S. Air Carriers (certificates, exemptions, allocation of limited frequencies, designations, or charters) 7 Mail Rate Proceedings 4 Name Change/Trade Name Registrations 4 Suspension of Service (14 CFR 323) 4 Tariff Justifications to exceed Standard International Fare Level 6 U.S. Air Carrier Certificates (involving Initial or Continuing Fitness) 6 Other matters 3 (d) Prohibition and dismissal of certain documents. (1) No document that is subject to the general requirements of this subpart concerning form, filing, subscription, service or similar matters will be accepted for filing by the Department, and will not be physically incorporated in the docket of the proceeding, unless: (i) Such document and its filing by the person submitting it have been expressly authorized or required in the Statute, any other law, this part, other Department regulations, or any order, notice or other document issued by the DOT decisionmaker, the Chief Administrative Law Judge or an administrative law judge assigned to the proceeding, and (ii) Such document complies with each of the requirements of this paragraph and 302.7, and for those electronically filed, the requirements specified at the DOT DMS internet website, and is submitted as a formal application, complaint, petition, motion, answer, pleading, or similar paper rather than as a letter, telegram, or other informal written communication; Provided, however, That for good cause shown, pleadings of any public body or civic organization or comments concerning tariff agreements that have not been docketed, may be submitted in the form of a letter. (2) If any document initiating, or filed in, a proceeding is not in substantial conformity with the applicable rules or regulations of the Department as to the contents thereof, or is otherwise insufficient, the Department, on its own initiative, or on motion of any party, may reject, strike or dismiss such document, or require its amendment. (e) Official docket copy. With respect to all documents filed under this part, the electronic record produced by the Department shall thereafter be the official docket copy of the document and any subsequent copies generated by the Department's electronic records system will be usable for admission as record copies in any proceeding before the Department. (f) Retention of documents by the Department. All documents filed with or presented to the Department Dockets will be retained in the permanent docket of the Department of Transportation. § 302.4 General requirements as to documents. (a) Contents. (1) In case there is no rule, regulation, or order of the Department that prescribes the contents of a formal application, petition, complaint, motion or other authorized or required document, such document shall contain a proper identification of the parties concerned, a concise but complete statement of the facts relied upon and the relief sought, and, where required, such document shall be accompanied by an Energy Statement, in conformity with the provisions of part 313 of this chapter. (2)(i) Each document must include with or provide on its first page: (A) The docket title and subject; (B) The relevant operating administration before which the application or request is filed; (C) The identity of the filer and its filing agent, if applicable; (D) The name and mailing address of the designated agent for service of any documents filed in the proceeding, along with the telephone and facsimile numbers and, if available, electronic mail address of that person; and (E) The title of the specific action being requested. (ii) Department of Transportation Dockets has an Expedited Processing Sheet that filers can use to assist in preparing this index for submission of paper documents, and an electronic registration for electronic filing at the DOT DMS internet website. (3) All documents filed under this part consisting of twenty (20) or more pages must contain a subject index of the matter in such document, with page references. (b) Verification: The following certification shall be included with every pleading filed under this part: “Pursuant to Title 18 United States Code Section 1001, I [ the individual signing the pleading, who shall be a principal owner, senior officer, or internal counsel of the pleader ], in my individual capacity and as the authorized representative of the pleader, have not in any manner knowingly and willfully falsified, concealed or failed to disclose any material fact or made any false, fictitious, or fraudulent statement or knowingly used any documents which contain such statements in connection with the preparation, filing or prosecution of the pleading. I understand that an individual who is found to have violated the provisions of 18 U.S.C. section 1001 shall be fined or imprisoned not more than five years, or both.” In addition, electronic subscription requirements shall be those specified at the DOT DMS internet website. § 302.5 Amendment of documents. (a) An application may be amended prior to the filing of answers thereto, or, if no answer is filed, prior to the issuance of an order establishing further procedures, disposing of the application, or setting the case for hearing. Thereafter, applications may be amended only if leave is granted pursuant to the procedures set forth in § 302.11. (b) Except as otherwise provided, if properly amended, a document and any statutory deadline shall be made effective as of the date of original filing but the time prescribed for the filing of an answer or any further responsive document directed towards the amended document shall be computed from the date of the filing of the amendment. § 302.6 Responsive documents. (a) Answers. Answers to applications, complaints, petitions, motions or other documents or orders instituting proceedings may be filed by any person. In hearing cases, answers may be filed by any party to such proceedings or any person who has a petition for intervention pending. Except as otherwise provided, answers are not required. (b) Further responsive documents. Except as otherwise provided, a reply to an answer, reply to a reply, or any further responsive document is not authorized. (c) Motions for leave to file otherwise unauthorized documents. (1) The Department will accept otherwise unauthorized documents for filing only if leave has been obtained from the DOT decisionmaker or, if applicable, the administrative law judge, on written motion and for good cause shown. (2) Such motions shall contain a concise statement of the matters relied upon as good cause and shall be attached to the pleading or other document for which leave to file is sought, or the written motion may be incorporated into the otherwise unauthorized document for which admission is sought. In such event, the document filed shall be titled to describe both the motion and the underlying documents. (3) Where unauthorized responsive documents are not permitted, all new matter contained in an answer filed pursuant to paragraph (a) of this section shall be deemed controverted. (d) Time for filing. Except as otherwise provided, an answer, motion, or other further responsive document shall be filed within seven (7) days after service of any document, order, or ruling to which the proposed filing is responsive and must be served on all parties to the proceeding. § 302.7 Service of documents. (a) Who makes service. (1) The Department. Formal complaints, notices, orders, and similar documents issued by the Department will be served by the Department upon all parties to the proceeding. (2) The parties. Answers, petitions, motions, briefs, exceptions, notices, protests, or memoranda, or any other documents filed by any party or other person with the Department shall be served by such party or other person upon all parties to the proceeding in which it is filed; including, where applicable, all persons who have petitioned for intervention in, or consolidation of applications with, such proceeding. Proof of service shall accompany all documents when they are filed. The Department may require additional service of any document(s). (b) How service may be made. Service may be made by first class mail, express mail, priority mail, registered or certified mail, facsimile transmission, personal delivery, or by electronic mail. The Department may prescribe other means of service by order or notice. The means of service selected must be done in such manner so as to have the same attributes as section 46103 of the Statute, which provides for service of notices and processes in a proceeding by personal service or registered or certified mail. (c) Who may be served. Service upon a party or person may be made upon an individual, or upon a member of a partnership or firm to be served, or upon the president or other officer of the corporation, company, firm, or association to be served, or upon the assignee or legal successor of any of the foregoing, or upon any attorney of record for the party, or upon the agent designated by an air carrier or foreign air carrier under section 46103 of the Statute, but it shall be served upon a person designated by a party to receive service of documents in a particular proceeding in accordance with § 302.4(a)(2)(iv) once a proceeding has been commenced. (d) Where service may be made. Service shall be made at the principal place of business of the party to be served, or at his or her usual residence if he or she is an individual, or at the office of the party's attorney of record, or at the office or usual residence of the agent designated by an air carrier or foreign air carrier under section 46103 of the Statute, or at the post office or electronic address or facsimile number stated for a person designated to receive service pursuant to § 302.4(a)(2)(iv). (e) Proof of service. Proof of service of any document shall consist of one of the following: (1) A certificate of mailing executed by the person mailing the document. (2) A certificate of successful transmission executed by the person transmitting the document by facsimile or electronic mail, listing the facsimile numbers or electronic mail address to which the document was sent, and stating that no indication was received that any transmission had failed. In the event of an electronic transmission failure, any other authorized means of service may be substituted and the appropriate proof of service provided. (f) Date of service. The date of service by post office or electronic mail is the date of mailing. Whenever proof of service by personal delivery or facsimile transmission is made, the date of such delivery or facsimile transmission shall be the date of service. (g) Freely Associated State Proceedings. In any proceeding directly involving air transportation to the Federated States of Micronesia, the Marshall Islands, or Palau, the Department and any party or participant in the proceeding shall serve all documents on the President and the designated authorities of the government(s) involved. This requirement shall apply to all proceedings where service is otherwise required, and shall be in addition to any other service required by this chapter. § 302.8 Computation of time. In computing any period of time prescribed or allowed by this part, by notice, order or regulation or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday, or legal holiday for the Department, in which event the period runs until the end of the next day that is neither a Saturday, Sunday, nor holiday. When the period of time prescribed is seven (7) days or fewer, intermediate Saturdays, Sundays, and holidays shall be excluded in the computation, unless otherwise specified by the DOT decisionmaker or the administrative law judge assigned to the proceeding, as the case may be. § 302.9 Continuances and extensions of time. (a) Whenever a party has the right or obligation to take action within a period prescribed by this part, by a notice given thereunder, or by an order or regulation, the DOT decisionmaker or the administrative law judge assigned to the proceeding, as appropriate, may: (1) Before the expiration of the prescribed period, with or without notice, extend such period, or (2) Upon motion, permit the act to be done after the expiration of the specified period, where good cause for the failure to act on time is clearly shown. (b) Except where an administrative law judge has been assigned to a proceeding, requests for continuance or extensions of time, as described in paragraph (a) of this section, shall be directed to the DOT decisionmaker. Requests for continuances and extensions of time may be directed to the Chief Administrative Law Judge in the absence of the administrative law judge assigned to the proceeding. § 302.10 Parties. (a) In addition to the persons set forth in § 302.2, in hearing cases, parties shall include Department staff designated to participate in the proceeding and any persons authorized to intervene or granted permission to participate in accordance with §§ 302.19 and 302.20. In any proceeding directly involving air transportation to the Federated States of Micronesia, the Marshall Islands or Palau, these governments or their designated authorities shall be a party. (b) Upon motion and for good cause shown, the Department may order a substitution of parties, except that in case of the death of a party, substitution may be ordered without the filing of a motion. (c) An association composed entirely or in part of air carriers may participate in any proceedings of the Department to which the Department's procedural regulations apply if the association represents members that are identified in any documents filed with the Department, and that have specifically authorized the positions taken by the association in that proceeding. The specific authorizations may be informal and evidence of them shall be provided only upon request of the Department. Upon motion of any interested person or upon its own initiative, the Department may issue an order requiring an association to withdraw from a case on the grounds of significant divergence of interest or position within the association. § 302.11 Motions. (a) Generally. An application to the DOT decisionmaker or an administrative law judge for an order or ruling not otherwise specifically provided for in this part shall be by motion. If an administrative law judge is assigned to a proceeding and before the issuance of a recommended or initial decision or the certification of the record to the DOT decisionmaker, all motions shall be addressed to the administrative law judge. At all other times, motions shall be addressed to the DOT decisionmaker. All motions shall be made at an appropriate time depending upon the nature thereof and the relief requested therein. This paragraph should not be construed as authorizing motions in the nature of petitions for reconsideration. (b) Form and contents. Unless made during a hearing, motions shall be made in writing in conformity with §§ 302.3 and 302.4, shall state their grounds and the relief or order sought, and shall be accompanied by any affidavits or other evidence desired to be relied upon. Motions made during hearings, answers to them, and rulings on them, may be made orally on the record unless the administrative law judge directs otherwise. Written motions shall be filed as separate documents, and shall not be incorporated in any other documents, except where incorporation of a motion in another document is specifically authorized by the Department, or where a document is filed that requests alternative forms of relief and one of these alternative requests is properly to be made by motion. In these instances the document filed shall be appropriately titled and identified to indicate that it incorporates a motion; otherwise, the motion will be disregarded. (c) Answers to motions. Within seven (7) days after a motion is served, or such other period as the DOT decisionmaker or the administrative law judge may fix, any party to the proceeding may file an answer in support of or in opposition to the motion, accompanied by such affidavits or other evidence as it desires to rely upon. Except as otherwise provided, no reply to an answer, reply to a reply, or any further responsive document shall be filed. (d) Oral arguments; briefs. No oral argument will be heard on motions unless the DOT decisionmaker or the administrative law judge otherwise directs. Written memoranda or briefs may be filed with motions or answers to motions, stating the points and authorities relied upon in support of the position taken. (e) Requests for expedition. Any interested person may by motion request expedition of any proceeding or file an answer in support of or in opposition to such motions. (f) Effect of pendency of motions. The filing or pendency of a motion shall not automatically alter or extend the time to take action fixed by this part or by any order of the Department or of an administrative law judge (or any extension granted thereunder). (g) Disposition of motions. The DOT decisionmaker shall pass upon all motions properly submitted to him or her for decision. The administrative law judge shall pass upon all motions properly addressed to him or her, except that, if the administrative law judge finds that a prompt decision by the DOT decisionmaker on a motion is essential to the proper conduct of the proceeding, the administrative law judge may refer such motion to the DOT decisionmaker for decision. (h) Appeals to the DOT decisionmaker from rulings of administrative law judges. Rulings of administrative law judges on motions may not be appealed to the DOT decisionmaker prior to his or her consideration of the entire proceeding except in extraordinary circumstances and with the consent of the administrative law judge. An appeal shall be disallowed unless the administrative law judge finds, either on the record or in writing, that the allowance of such an appeal is necessary to prevent substantial detriment to the public interest or undue prejudice to any party. If an appeal is allowed, any party may file a brief with the DOT decisionmaker within such period as the administrative law judge directs. No oral argument will be heard unless the DOT decisionmaker directs otherwise. The rulings of the administrative law judge on a motion may be reviewed by the DOT decisionmaker in connection with his or her final action in the proceeding or at any other appropriate time irrespective of the filing of an appeal or any action taken on it. § 302.12 Objections to public disclosure of information. (a) Generally. Part 7 of the Office of the Secretary regulations, Public Availability of Information, governs the availability of records and documents of the Department to the public. (49 CFR 7.1 et seq. ) (b) Information contained in written documents. Any person who objects to the public disclosure of any information filed in any proceeding, or pursuant to the provisions of the Statute, or any Department rule, regulation, or order, shall segregate, or request the segregation of, such information into a separate submission and shall file it separately in a sealed envelope, bearing the caption of the enclosed submission, and the notation “Confidential Treatment Requested Under § 302.12.” At the time of filing such submission (or, when the objection is made by a person who is not the filer, within five (5) days after the filing of such submission), the objecting party shall file a motion to withhold the information from public disclosure, in accordance with the procedure outlined in paragraph (d) or (f) of this section, as appropriate. Notwithstanding any other provision of this section, copies of the filed submission and of the motion need not be served upon any other party unless so ordered by the Department. (c) Information contained in oral testimony. Any person who objects to the public disclosure of any information sought to be elicited from a witness or deponent on oral examination shall, before such information is disclosed, make his or her objection known. Upon such objection duly made, the witness or deponent shall be compelled to disclose such information only in the presence of the administrative law judge or the person before whom the deposition is being taken, as the case may be, the official stenographer and such attorneys for and representative of each party as the administrative law judge or the person before whom the deposition is being taken shall designate, and after all present have been sworn to secrecy. The transcript of testimony containing such information shall be segregated and filed in a sealed envelope, bearing the title and docket number of the proceeding, and the notation “Confidential Treatment Requested Under § 302.12 Testimony Given by (name of witness or deponent).” Within five (5) days after such testimony is given, the objecting person shall file a motion in accordance with the procedure outlined in paragraph (d) of this section, to withhold the information from public disclosure. Notwithstanding any other provision of this section, copies of the segregated portion of the transcript and of the motion need not be served upon any other party unless so ordered by the Department. (d) Form of motion. Motions to withhold from public disclosure information covered by paragraphs (b) and (c) of this section shall be filed with the Department in accordance with the following procedure: (1) The motion shall include: (i) An index listing the information or document sought to be withheld by an identifying number, and including its title, description and number of pages, and, if relevant, the specific location within a document; (ii) A statement explaining how and why the information falls within one or more of the exemptions from the Freedom of Information Act (5 U.S.C. 552(b)(1)-(9)); and (iii) A statement explaining how and why public disclosure of the information would adversely affect the interests of the objecting persons and is not required in the interest of the public. (2) Such motion shall be filed with the person conducting the proceeding, or with the person with whom said application, report, or submission is required to be filed. Such motion will be denied when the complete justification required by this paragraph is not provided. (3) During the pendency of such motion, the ruling official may, by notice or order, allow limited disclosure to parties' representatives, for purposes of participating in the proceeding, upon submission by them of affidavits swearing to protect the confidentiality of the documents at issue. (e) Conditions of disclosure. The order, notice or other action of the Department containing its ruling upon each such motion will specify the extent to which, and the conditions upon which, the information may be disclosed to the parties and to the public, which ruling shall become effective upon the date stated therein, unless, within five (5) days after the date of the entry of the Department's order with respect thereto, a petition is filed by the objecting person requesting reconsideration by the Department, or a written statement is filed indicating that the objecting person in good faith intends to seek judicial review of the Department's order. (f) Objection by Government departments or representative thereof. In the case of objection to the public disclosure of any information filed by or elicited from any United States Government department or agency, or representative thereof, under paragraph (b) or (c) of this section, the department or agency making such objection shall be exempted from the provisions of paragraphs (b), (c), and (d) of this section insofar as said paragraphs require the filing of a written objection to such disclosure. However, any department, agency, or representative thereof may, if it so desires, file a memorandum setting forth the reasons why it is claimed that a public disclosure of the information should not be made. If such a memorandum is submitted, it shall be filed and handled as is provided by this section in the case of a motion to withhold information from public disclosure. § 302.13 Consolidation of proceedings. (a) Initiation of consolidations. The Department, upon its own initiative or upon motion, may consolidate for hearing or for other purposes or may contemporaneously consider two or more proceedings that involve substantially the same parties, or issues that are the same or closely related, if it finds that such consolidation or contemporaneous consideration will be conducive to the proper dispatch of its business and to the ends of justice and will not unduly delay the proceedings. Although the Department may, in any particular case, consolidate or contemporaneously consider two or more proceedings on its own motion, the burden of seeking consolidation or contemporaneous consideration of a particular application shall rest upon the applicant and the Department will not undertake to search its docket for all applications that might be consolidated or contemporaneously considered. (b) Time for filing. Unless the Department has provided otherwise in a particular proceeding, a motion to consolidate or contemporaneously consider an application with any other application shall be filed within 21 days of the original application in the case of international route awards under section 41102 of the Statute ( see § 302.212), or, where a proceeding has been set for hearing before an administrative law judge, not later than the prehearing conference in the proceeding with which consolidation or contemporaneous consideration is requested. If made at such conference, the motion may be oral. All motions for consolidation or consideration of issues that enlarge, expand, or otherwise change the nature of the proceeding shall be addressed to the DOT decisionmaker, unless made orally at the prehearing conference, in which event the presiding administrative law judge shall present such motion to the DOT decisionmaker for his or her decision. A motion that is not timely filed, or that does not relate to an application pending at such time, shall be dismissed unless the movant shall clearly show good cause for failure to file such motion or application on time. (c) Answer. If a motion to consolidate two or more proceedings is filed with the Department, any party to any of such proceedings, or any person who has a petition for intervention pending, may file an answer to such motion within such period as the DOT decisionmaker may permit. The administrative law judge may require that answers to such motions be stated orally at the prehearing conference in the proceeding with which the consolidation is proposed. § 302.14 Petitions for reconsideration. (a) Department orders subject to reconsideration; time for filing. (1) Unless an order or a rule of the Department specifically provides otherwise: (i) Any interested person may file a petition for reconsideration of any interlocutory order issued by the Department that institutes a proceeding; and (ii) Any party to a proceeding may file a petition for reconsideration, rehearing, or reargument of final orders issued by the Department ( See § 302.38), or an interlocutory order that defines the scope and issues of a proceeding or suspends a provision of a tariff on file with the Department. (2) Unless otherwise provided, petitions for reconsideration shall be filed, in the case of a final order, within twenty (20) days after service thereof, and, in the case of an interlocutory order, within ten (10) days after service. However, neither the filing nor the granting of such a petition shall operate as a stay of such final or interlocutory order unless specifically so ordered by the DOT decisionmaker. Within ten (10) days after a petition for reconsideration, rehearing, or reargument is filed, any party to the proceeding may file an answer in support of or in opposition. Motions for extension of time to file a petition or answer, and for leave to file a petition or answer after the time for the filing has expired, will not be granted except on a showing of unusual and exceptional circumstances, constituting good cause for the movant's inability to meet the established procedural dates. (b) Contents of petition. A petition for reconsideration, rehearing, or reargument shall state, briefly and specifically, the matters of record alleged to have been erroneously decided, the ground relied upon, and the relief sought. If a decision by the Secretary or Deputy Secretary is requested, the petition should describe in detail the reasons for such request and specify any important national transportation policy issues that are presented. If the petition is based, in whole or in part, on allegations as to the consequences that would result from the final order, the basis of such allegations shall be set forth. If the petition is based, in whole or in part, on new matter, such new matter shall be set forth, accompanied by a statement to the effect that petitioner, with due diligence, could not have known or discovered such new matter prior to the date the case was submitted for decision. Unless otherwise directed by the DOT decisionmaker upon a showing of unusual or exceptional circumstances, petitions for reconsideration, rehearing or reargument or answers thereto that exceed twenty-five (25) pages (including appendices) in length shall not be accepted for filing by Department of Transportation Dockets. (c) Successive petitions. A successive petition for rehearing, reargument, reconsideration filed by the same party or person, and upon substantially the same ground as a former petition that has been considered or denied will not be entertained. Non-Hearing Proceedings § 302.15 Non-hearing procedures. In cases where oral evidentiary hearing procedures will not be used, § 302.17 through § 302.37, relating to hearing procedures, shall not be applicable except to the extent that the DOT decisionmaker shall determine that the application of some or all of such rules in the particular case will be conducive to the proper dispatch of its business and to the public interest. References in these and other sections of this part to powers or actions by administrative law judges shall not apply. Rulemaking Proceedings § 302.16 Petitions for rulemaking. Any interested person may petition the Department for the issuance, amendment, modification, or repeal of any regulation, subject to the provisions of part 5, Rulemaking Procedures, of the Office of the Secretary regulations (49 CFR 5.1 et seq. ). Oral Evidentiary Hearing Proceedings § 302.17 Administrative law judges. (a) Powers and delegation of authority. (1) An administrative law judge shall have the following powers, in addition to any others specified in this part: (i) To give notice concerning and to hold hearings; (ii) T [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A00-2554. Public record. Not legal advice.