Rules of Practice in Proceedings

SUMMARY: In his Regulatory Reinvention Initiative Memorandum of March

4, 1995, President Clinton directed Federal agencies to conduct a page-

by-page review of all of their regulations and to ``eliminate or revise

those that are outdated or otherwise in need of reform.'' In response

to that directive, the Department has undertaken a review of its

aviation economic regulations as contained in 14 CFR Chapter II. We

have thus far identified a number of regulations that were outdated or

contained references that were obsolete. This rulemaking proposes to

modify various provisions in 14 CFR part 302--Rules of Practice in

Proceedings by eliminating redundancies, excess verbiage, and obsolete

provisions; by making technical changes necessary to make the rules

current; and by reorganizing and renumbering subparts in a more logical

order and to place a greater emphasis on procedures used in written as

opposed to oral proceedings. As part of the reorganization, one

provision in part 302 would be relocated to part 300 of this chapter--

Rules of Conduct in DOT Proceedings under this Chapter, and all

currently reserved subparts would be removed. The rulemaking also

proposes to shorten some of the time periods for filing responsive

documents in licensing cases, and to include procedures for slot

exemptions at high density airports.

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

ADDRESSES: Comments should be directed to Department of

Transportation Dockets, Docket OST-97-2090, 400 Seventh Street,

SW., Room PL-401, Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT: Patricia L. Thomas or Carol A. Woods,

Office of Aviation Analysis, X-56, U.S. Department of Transportation,

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

SUPPLEMENTARY INFORMATION:

Comments Invited

Interested persons are invited to participate in this rulemaking

action by submitting such written data, views, or arguments as they may

desire. Comments that provide the factual basis supporting the views

and suggestions presented are particularly helpful in developing

reasoned regulatory decisions. Communications should identify the

regulatory docket number and be submitted in duplicate to the address

listed above. Commenters wishing the Department to acknowledge receipt

of their comments must submit with those comments a self-addressed

stamped postcard on which the following statement is made: Comments on

Docket No. OST-97-2090. The postcard will be date/time stamped and

returned to the commenter. All communications on or before the

specified closing date will be considered by the Assistant Secretary

for Aviation and International Affairs before taking action on any

further rulemaking. Also, this proposal may be changed in light of

comments received. All comments submitted will be available for

examination in Docket OST-97-2090. A report summarizing each

substantive public contact with DOT personnel concerned with this

rulemaking will be filed in the docket.

Background

The Department of Transportation has reviewed its existing

regulations in order to determine whether changes should be made to

promote economic growth, create jobs, or eliminate unnecessary costs or

other burdens on the economy. In the course of this review, the

Department determined that references in various regulations were

obsolete and that technical and editorial changes to the regulations

are necessary to make them current.

Title 14 CFR part 302--Rules of Practice in Proceedings contains

the regulations that govern the conduct of all aviation economic

proceedings before the Department of Transportation. These rules have

not been comprehensively reviewed and updated since 1985 when the

aviation economic functions of the Civil Aeronautics Board (CAB) were

transferred to the Department as a result of the CAB's ``sunset.'

The Changes

General. Part 302 is extensive, with different subparts governing

different types of proceedings. Because of the extent and number of

changes being made, we propose to reissue part 302 in its entirety. The

particular provisions proposed to be eliminated, relocated, or revised,

and the reasons therefor are discussed for each subpart separately

below. In general, however, the changes would include reorganizing and

renumbering of subparts; eliminating redundancies, obsolete provisions

or excess verbiage; and resequencing sections within subparts to place

them in a more logical order to ``track'' the course of a particular

type of proceeding and to place a greater emphasis on procedures used

in written proceedings (i.e., non-oral evidentiary proceedings) which

are used in the majority of cases handled. Thus, some sections would be

rewritten to indicate that written procedures, such as show-cause

procedures, would generally be employed, and that if an administrative

law judge were assigned to a case, the judge would preside over or have

responsibility for various decisions, but that in all other cases the

DOT decisionmaker would have such powers and responsibilities. Some

sections would be separated or combined and titles added or revised for

clarity and ease in locating specific provisions.

A number of the subparts would be reordered so that the rules of

general applicability (new Subpart A) would, as now, come first,

followed by rules pertaining to the Department's ``permanent''

licensing functions, i.e., issuance of U.S. air carrier certificates

and foreign air carrier permits (new Subpart B, current Subparts I and

Q), rules pertaining to ``temporary'' licensing functions, i.e.,

exemptions (new Subpart C, current Subpart D), rules on enforcement of

those licenses and other Department regulations (new Subpart D, current

Subpart B), and rules on rates, fares, and charges, i.e., prices for

foreign air transportation (revised Subpart E), airport fees (Subpart

F), and mail rates and contracts (new Subpart G, current Subparts C and

O).

Current Subpart J (Rules Applicable to Proceedings Involving

Charter Air Carriers) would be removed. This subpart contains

procedural rules for the immediate suspension of a charter air

carrier's certificate. To our knowledge, this rule has never been used.

Moreover, the procedures prescribed in Subpart J, if utilized, would

subject a charter air carrier that failed to comply with the insurance

and/or continuing fitness requirements of sections 41110(e) and 41112

of the Statute to more severe treatment than an air carrier with

scheduled passenger or scheduled cargo authority that failed to comply

with these same sections of the Statute. In the interest of treating

all certificated air carriers equally, Subpart J should be eliminated.

We will

[[Page 5095]]

continue to have powers under the provisions of Secs. 204.7 and 302.211

of this chapter, and sections 41104, 41110, and 41112 of the Statute to

suspend a charter carrier's certificate when necessary.

Subparts G, H, K, L, M, N, and P, which are currently ``reserved,''

would be removed.

Two technical changes would be applicable to all subparts: (1) the

correction of definitions and other terminology necessitated by the

revision and recodification of the Federal Aviation Act within Subtitle

VII of Title 49 of the United States Code (Transportation) (``the

Statute'') by action of Pub. L. 103-272, enacted July 5, 1994; and (2)

the correction of the obsolete title ``Assistant Secretary for Policy

and International Affairs'' to read ``Assistant Secretary for Aviation

and International Affairs'.

At the time we issue a final rule in this rulemaking proceeding, we

will also amend all rules in Chapter II containing what will then be

incorrect references to sections in part 302.

Subpart A--Rules of General Applicability currently sets forth the

general rules that apply to all proceedings before the Department. The

changes to Subpart A would include the addition of a definitions

section (Sec. 302.2) which would include definitions drawn from other

sections of the current rule (e.g., DOT decisionmaker) as well as new

definitions (e.g., party, non-hearing case) or revised definitions.

Thus, the definition of ``administrative law judge'' is changed to

remove the reference to presiding officers to avoid confusion as to

whether a presiding officer is an administrative law judge appointed

pursuant to 5 U.S.C. 3105. The Secretary may appoint, on an ad hoc

basis, presiding officers to govern proceedings that do not require

administrative law judges. Appointment of a presiding officer could be

made in an order instituting a proceeding. The definition of ``hearing

case'' is changed to remove reference to 5 U.S.C. 556 and 557, since an

official who is not an administrative law judge might preside over an

oral evidentiary hearing that is not conducted pursuant to the

Administrative Procedure Act (5 U.S.C. 551 et seq.).

Some sections in Subpart A would be reorganized. For example,

requirements for filing documents (Sec. 302.3) would contain provisions

on the prohibition and dismissal of certain documents and on motions

for leave to file otherwise unauthorized documents that are presently

contained in the general requirements for documents (Sec. 302.4).

Provisions would be added to specify when an application may be

amended when the application has not been set for hearing--e.g., prior

to the issuance of an order establishing further procedures or

disposing of the application (Sec. 302.5).

Service of documents (new Sec. 302.7) would allow for service by

facsimile.

The definition of ``party'' would be expanded to include any DOT

staff designated to participate in the proceeding in an oral

evidentiary hearing (new Secs. 302.2 and 302.10(a)).

A provision would be added in the section on objections to the

public disclosure of information (new Sec. 302.12) to allow limited

disclosure of such information to the parties in a proceeding upon

submission of affidavits by those parties swearing to protect the

confidentiality of the documents at issue during the pendency of a

motion to withhold.

All of the paragraphs that pertain only to oral evidentiary

hearings would be moved to the end of the subpart (Secs. 302.17-302.37)

to alleviate confusion over the procedures that are applicable only to

those types of proceedings and those applicable to non-hearing cases,

which now comprise the bulk of the proceedings that the Department

handles.

The section on administrative law judges (new Sec. 302.17) would be

revised to specify the powers of each judge and to include the

delegation of authority to each judge to make decisions in hearing

proceedings (current Sec. 302.27(a)).

The section on the DOT decisionmaker (new Sec. 302.18) would be

revised to reflect the change in title of the Assistant Secretary for

Policy and International Affairs to Assistant Secretary for Aviation

and International Affairs, and to reorder the text to eliminate

duplication and to reflect that the majority of cases are decided by

the Assistant Secretary using non-hearing proceedings.

New sections on evidence (Sec. 302.24) and transcripts of hearings

(Sec. 302.28) would contain provisions from current Sec. 302.24. The

list of officially noticeable documents, included in the evidence

section, would be updated and reorganized so that documents filed with

or compiled by the Department, including the Federal Aviation

Administration, would be listed first followed by documents filed with

or compiled by other government agencies and then private organizations

(Sec. 302.24(g)).

The provisions now contained in the section on subpoenas (current

Sec. 302.19(g)) governing the attendance of DOT employees and the

production of documentary evidence in their custody at a hearing would

be revised to state that such matters would be governed by 49 CFR Parts

9 and 7 (new Sec. 302.25(g)).

Provisions relating to the amount of attendance and mileage fees

payable to witnesses in hearing cases (new Sec. 302.27(c)) would be

simplified to remove specific dollar amounts and to specify that such

witnesses will be paid in accordance with regulations in effect at the

time for U.S. courts or government per diem rates. Text on the payment

of such fees to witnesses as well as other rights of witnesses

(currently found in paragraphs (b) and (c) of Sec. 302.11) would be

combined in new Sec. 302.27. In addition, a separate section on

appearances (currently in Sec. 302.11(a)) would be established (new

Sec. 302.21).

A provision would be added stating that one of the considerations

for determining whether to order a ``daily transcript'' of a hearing,

in lieu of an ``ordinary transcript'', is cost to the Department (new

Sec. 302.29(b)(3)).

A new section specifying the actions that can be taken by

administrative law judges after a hearing, including issuing initial or

recommended decisions (which would be defined in the rule) or

certifying the record to the DOT decisionmaker would be established

(Sec. 302.31). A provision would be added stating that, in the case of

a recommended decision, unless a petition for discretionary review,

exceptions, or a notice by the DOT decisionmaker taking review was

filed, the judge's decision would be forwarded to the President for

review under 49 U.S.C. 41307 as the Department's final order.

Some sections would be removed from this subpart if they pertain

only to specific types of cases (e.g., Sec. 302.13, joinder of

complaints or complainants, has been moved to new Subpart D concerning

enforcement proceedings), or if they more logically belong in other

rules (e.g., Sec. 302.18(a-1)--motions to disqualify DOT employees in

review of hearing matters--would be redesignated Sec. 300.18 in part

300 of this chapter, which covers rules of conduct in DOT proceedings).

Subpart B--Rules Applicable to U.S. Air Carrier Certificate and

Foreign Air Carrier Permit Licensing Proceedings would replace and

revise current Subparts I and Q with respect to licensing procedures

for new U.S. certificated and foreign air carriers and the conduct of

international route proceedings.

Current Subpart I (Rules Applicable to Route Proceedings under

Sections 401 and 402 of the Federal Aviation Act) would be eliminated.

These rules set

[[Page 5096]]

forth procedures under which the Department may initiate route

proceedings under sections 41102 and 41302 of the Statute (formerly

sections 401 and 402 of the Federal Aviation Act). These procedures

were used by the former CAB prior to the promulgation of current

Subpart Q of this part. Today, these types of route cases are handled

under the expedited provisions of Subpart Q rather than Subpart I

procedures. Thus, a special set of rules applicable to route

proceedings initiated by the Department is no longer needed.

Current Subpart Q (Expedited Procedures for Processing Licensing

Cases) would also be removed. These rules contain the procedures used

for the filing and processing of applications requesting action (e.g.,

issuance, modification, transfer) involving certificates of public

convenience and necessity or foreign air carrier permits.

The new Subpart B would be organized to indicate more clearly what

evidence requirements and filing and review procedures would be

followed in each type of licensing case. Thus, current Sec. 302.1720,

which applies to certificate cases in general, contains provisions on

filing conforming applications or motions to modify the scope of a

proceeding that are applicable to international route cases but not

typically applicable to initial fitness certification cases. Provisions

pertaining solely to international route cases would be contained in

Sec. 302.212; those pertaining to initial or continuing fitness cases

for U.S. carriers would be found in Sec. 302.211; and those pertaining

to foreign air carrier permit cases would be located in Sec. 302.213.

A provision would be added (Sec. 302.202(a)) stating that in those

cases involving the initial or continuing fitness of a U.S. air

carrier, any application filed should also contain the supporting

fitness information required by part 204 of this chapter.

The requirement to serve copies of pleadings on other parties would

be revised for proceedings involving foreign air carrier permit

applications to conduct scheduled operations to include the airport

authority of any U.S. airport that the applicant initially proposes to

serve (new Sec. 302.203(b)(2)(C)). Service on such parties is already

required in U.S. air carrier certificate application proceedings (new

Sec. 302.203(b)(1)).

We are also proposing to eliminate the separate regulatory

procedures and time periods for responsive pleadings for certificate

restriction removal cases (current Sec. 302.1730). Such cases are rare

and can be handled under the same rules and timeframes as international

route award cases. If different procedures or timetables are required

in a specific case, the Department can establish those in a procedural

order at the outset of such proceeding.

We are adding a provision to specifically allow for the filing of

replies to answers in licensing cases (new Sec. 302.204(b)). Replies

are routinely filed in such cases (accompanied by a motion for leave to

file), are permitted in response to answers to show cause orders issued

in such proceedings, and are of benefit to the Department in analyzing

the information and allegations in any filed answer.

In most cases, the time periods for filing responsive pleadings

would be decreased in an effort to expedite the processing of licensing

cases (new Secs. 302.204 and 302.212) (see chart below). In this

regard, answers to U.S. air carrier certificate applications (both

initial fitness and international route award) and foreign air carrier

permit applications or amendments to any of those types of applications

would be due in 21 days, rather than 28 days. Petitions for oral

hearing of the application would be due at the same time that answers

to the application would be due (i.e., within 21 days), rather than 14

days later as is currently the case for foreign air carrier permits

(current Sec. 302.1712(c)(3)) or 24 days later (i.e., 52 days after the

original application) as is the case for certificate cases (current

Sec. 302.1712(c)(1)). In international route cases, conforming

applications and/or motions to modify the scope of the proceeding would

be due at the same time that answers are filed--within 21 days after

the original application. Answers to conforming applications or motions

would be due 14 days later, i.e., 35 days after the original

application, rather than 42 days.

Proposed Changes in Time Periods for Filing Responsive Pleadings

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

Number of days from date original

application filed

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

Current Proposed

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

U.S. air carrier certificate

applications (both initial

fitness and international route

award) and foreign air carrier

permit applications, or

amendments to any of these:

Answers to the application.... 28 21

Replies to answers............ NA 35

Conforming applications or

motions to modify scope...... 28 21

Answers to conforming

applications or motions to

modify scope................. 42 35

Petitions for oral hearing of

application:

Certificate cases......... 52 21

Foreign air carrier

permits.................. 42 21

Restriction removal cases:

Answers to application........ 14 21

Conforming applications....... 14 days 21

Answers to conforming

applications................. XL28 35

Petitions for oral hearing of

application.................. 35 21

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

The time period for the Department to defer further processing of

an incomplete application (current Sec. 302.1713) would be increased

from 21 to 28 days to allow for the review of any answers filed in

response to the application (new Sec. 302.209).

With respect to DOT's issuance of an order establishing further

procedures, the only change would be to specify that, in U.S. air

carrier certificate cases, the order would be issued in 90 days after a

complete application is filed (new Secs. 302.211(b) and 302.212(e)).

This clarification, which reflects the provision in current

Sec. 302.1713 (as contained in new Sec. 302.209) that the time periods

contained in the subpart would not begin to run until the application

is complete, is intended to alleviate any confusion over when a

[[Page 5097]]

DOT order taking action on an application would be issued, since many

certificate applications are not complete when submitted and must be

deferred pending receipt of supplementary information.

The section on the disposition of applications (new Sec. 302.210)

would be reorganized to reflect the current practices employed in the

majority of application cases of using show-cause procedures or

dismissing the application by final order, rather than instituting an

oral evidentiary hearing.

A provision would be added to current Sec. 302.1757 to clarify that

if the DOT decisionmaker did not act within 90 days of the issuance of

an initial decision by an administrative law judge, that decision would

become the final decision of the Department (new Sec. 302.220(b)(2)).

In addition, current Sec. 302.1760, which pertains to internal

procedures of the Department, would be eliminated as unnecessary.

Subpart C--Rules Applicable to Exemption Proceedings would replace

and revise current Subpart D, which sets forth procedural standards for

U.S. and foreign air carriers to follow in applying for exemption

authority under section 40109 of the Statute. It adds proceedings for

slot exemptions at high density airports under section 41714 of the

Statute to its scope. It also gives needed guidance to U.S. and foreign

air carrier applicants on the specific information they must file.

In new Subpart C, new Sec. 302.302(b) would revise the names of the

offices where exemption applications are to be filed to the U.S. Air

Carrier Licensing Division or Foreign Air Carrier Licensing Division,

as appropriate, in the Office of International Aviation. New

Sec. 302.302(b)(4) would permit the filing of exemption requests by

facsimile and electronic mail (when available), and new Sec. 302.302(e)

(current Sec. 302.401(e)) would be revised to reflect our present

practice of omitting applicants' addresses when publishing notices of

exemption applications filed. Also, the word ``undue'' would be changed

to ``unreasonable'' in paragraphs (3) and (4) of new Sec. 302.303(d) to

reflect a change in this language in section 40109(g)(1)(C) of the

Statute.

Subpart D--Rules Applicable to Enforcement Proceedings would

replace and revise current Subpart B, which contains the specific rules

governing enforcement actions, or proceedings by which the Department

enforces the aviation economic provisions of the Statute and the rules,

regulations, orders, and other requirements the Department issues under

those provisions. These rules also inform the public how to lodge

complaints and detail the procedures that the Department and the

parties will follow in the event the Department takes enforcement

action.

A definitions section would be added to new Subpart D (new

Sec. 302.402).

In addition, various sections would be combined, separated or

retitled for purposes of clarity. Thus, a separate section on informal

complaints would be established (new Sec. 302.403), and the section on

formal complaints would be expanded to include current Secs. 302.203

and 302.13 and separated into paragraphs pertaining to, among others

things, the filing, amendment, and service of such complaints (new

Sec. 302.404). A section on responsive documents (new Sec. 302.405)

would contain provisions from current Sec. 302.204, and a section on

procedure for responding to formal complaints (new Sec. 302.406) would

contain provisions from current Secs. 302.205 and 302.206.

The requirement that action must be taken on a formal complaint

within 60 days of its filing would be eliminated, leaving in place the

provision that such action would be taken ``within a reasonable time''

(new Sec. 302.406).

The section on commencement of enforcement proceedings (new

Sec. 302.407) would include provisions from current Secs. 302.206 and

302.206a; the section on answers and replies (new Sec. 302.408) would

contain provisions from current Secs. 302.207 and 302.209; and current

Sec. 302.212 on admissions as to facts and motions to dismiss would be

divided into two sections (new Secs. 302.411 and 302.412).

The term ``third-party complaint'' used throughout would be

replaced with ``formal complaint,'' and the ``saving clause'' from

Subpart A (current Sec. 302.40) would be moved to this subpart as new

Sec. 302.420 and modified to include provisions of the Statute and

orders and other requirements of the Department.

Subpart E--Rules Applicable to Proceedings with Respect to Rates,

Fares and Charges for Foreign Air Transportation would revise current

Subpart E, which contains special rules for proceedings relating to

prices and their related rules, classifications and practices applied

in foreign air transportation. These proceedings are instituted at the

Department's discretion in response to a third-party complaint, or upon

the Department's own initiative. Historically, most such proceedings

involved complaints against tariffs by competitors.

The title of the Subpart E would be amended to add ``for Foreign

Air Transportation'' to clarify that these rules do not apply to rates,

fares and charges in interstate transportation.

New Sec. 302.506(d) would permit, in emergency situations, the

filing of complaints requesting the suspension of a tariff by facsimile

and electronic mail (when available), but would require that the filing

be confirmed in writing within three business days.

Current Sec. 302.506 would be eliminated. That section places the

burden of going forward with the evidence (i.e., making at least a

prima facie case of lawfulness) upon the carrier proposing a tariff

change. Under deregulation pricing policies and procedures, fare

decreases or rule liberalizations do not need any justification.

Similarly, complainants challenging tariffs on the ground of ``unjust

discrimination'' now must make a prima facie case of unlawfulness.

Thus, the subsection is misleading and should be eliminated entirely

because specific evidentiary burdens are normally discussed at

prehearing conferences, and nonhearing evidentiary matters can be

resolved in an instituting order.

Subpart F--Rules Applicable to Proceedings Concerning Airport Fees

contains the specific rules that apply to a complaint filed by one or

more U.S. or foreign carriers for a determination of the reasonableness

of a fee increase or a newly established fee imposed upon the carrier

by the owner or operator of an airport. This subpart also applies to

requests by the owner or operator of an airport for such a

determination.

Since Subpart F was only recently adopted (in February 1995), it

would not be revised at this time except to make the provisions

internally consistent with the rest of revised part 302, such as by

changing section reference numbers (e.g., in Sec. 302.617, the

reference to Sec. 302.28(a) would be changed to Sec. 302.32(a), and in

Sec. 302.603 an additional reference to Sec. 302.4 concerning the form

of documents would be added). In addition, since at the time of the

adoption of Subpart F, references to that subpart were not added to the

index in Appendix A, those references would be added at this time.

Subpart G--Rules Applicable to Mail Rate Proceedings and Contracts

would combine, replace and revise subparts C and O.

Current Subpart C (Rules Applicable to Mail Rate Proceedings) sets

forth the special rules applicable to proceedings for the establishment

of mail rates by the Department in accordance with

[[Page 5098]]

section 41901 of the Statute. These are the rates paid by the United

States Postal Service to U.S. carriers for the transportation of U.S.

mail within Alaska and between the U.S. and foreign countries.

Current Subpart O (Procedure for Processing Contracts for

Transportation of Mail by Air in Foreign Air Transportation) sets forth

procedures applicable to certain contractor arrangements for the

carriage of mail by air between the U.S. Postal Service and

certificated air carriers pursuant to 39 U.S.C. 5402(a).

In new Subpart G, current references to actions by ``the

Department'' or ``DOT'' would be changed to ``DOT decisionmaker'' to

differentiate from actions by an administrative law judge in an oral

evidentiary hearing, and current Secs. 302.304 and 302.309 would be

combined into new Sec. 302.703 to reflect that the DOT decisionmaker

may either issue an order to show cause or set a matter for oral

hearing before an administrative law judge.

Certain sections also would be revised to allow the DOT

decisionmaker additional flexibility in dealing with specific cases.

Thus, current Sec. 302.305(a) would be revised to allow for answers to

show cause orders within 10 days ``or within such other period as the

order may specify'' (new Sec. 302.704(a)); and current Sec. 302.307

would be revised to allow the decisionmaker to authorize the filing of

additional pleadings or establish further procedural steps in lieu of

instituting an oral hearing (new Sec. 302.705(b)) and to allow the

issues at any hearing that is instituted to be formulated by the

instituting order (new Sec. 302.706(a)).

The provisions of current Secs. 302.306 and 302.307 would be

combined into new Sec. 302.705 covering further procedures, and current

Secs. 302.301, 302.302, 302.307, and 302.308 would be combined into new

Sec. 302.706 entitled Hearing.

Current Secs. 302.311 and 302.321 would be combined into new

Sec. 302.708. The provisions of paragraphs (a) and (b) of current

Sec. 302.1503 would be eliminated as unnecessary, and new Sec. 302.719

would refine and condense the data required to reflect current

practice.

The subject index contained in Appendix A--Index to Rules of

Practice would be updated to include additional references (such as to

Fitness Cases and Airport Fee cases), and to eliminate obsolete

references. Also, to assist users in locating the newly renumbered

sections, the revised Appendix would list for each subject both the

current section number(s) and the corresponding new section number(s).

Executive Order 12866 (Regulatory Planning and Review)

The Department has analyzed the economic and other effects of the

proposed amendment and has determined that they are not ``significant''

within the meaning of Executive Order 12866. The amendment will not

have an annual effect on the economy of $100 million or more or

adversely affect in a material way the economy, a sector of the

economy, productivity, competition, jobs, the environment, public

health or safety, or State, local, or tribal governments or

communities. It will not create a serious inconsistency or otherwise

interfere with an action taken or planned by another agency, and it

will not materially alter the budgetary impact of entitlements, grants,

user fees, or loan programs or the rights and obligations of recipients

thereof. Nor does it raise any novel legal or policy issues arising out

of legal mandates, the President's priorities, or the principles set

forth in Executive Order 12866.

DOT Regulatory Policies and Procedures

The proposed amendment is not significant under the Department's

Regulatory Policies and Procedures, dated February 26, 1979, because it

does not involve important Departmental policies; rather, it is being

made solely for the purposes of eliminating or correcting obsolete

requirements and reorganizing the presentation of the regulations used

by the Department to administer its aviation economic regulatory

functions. The Department has also determined that the economic effects

of the amendment are so minimal that a full regulatory evaluation is

not required.

Regulatory Flexibility Act

In accordance with the Regulatory Flexibility Act, the Department

has evaluated the effects of this proposed action on small entities,

i.e., those air carriers operating small aircraft (60 seats or less or

18,000 pounds maximum payload or less) in strictly domestic service.

The proposed changes to the Department's Rules of Practice in

Proceedings would merely eliminate unnecessary and obsolete verbiage,

reorganize the provisions and bring them up to date with our current

practice, and would not place any new requirements on applicants.

Moreover, these rules generally are not applicable to proceedings

involving such small entities. Therefore, the Department certifies that

the amendment would not have a significant economic impact on a

substantial number of small entities.

Executive Order 12612 (Federalism)

This proposed amendment has been analyzed in accordance with the

principles and criteria contained in Executive Order 12612. The

Department has determined that the amendment does not have sufficient

federalism implications to warrant the preparation of a Federalism

Assessment. This amendment will not have a substantial direct effect on

the States, on the relationship between the national government and the

States, or on the distribution of power and responsibilities among the

various levels of government.

National Environmental Policy Act

The Department has also analyzed this proposed amendment for the

purpose of the National Environmental Policy Act. The amendment will

not have any significant impact on the quality of the human

environment.

Paperwork Reduction Act

There are no reporting or recordkeeping requirements associated

with the proposed amendment.

List of Subjects

14 CFR Part 300

Administrative practice and procedure, Conflict of interests.

14 CFR Part 302

Administrative practice and procedure, Air carriers, Foreign air

carriers.

Proposed Rule

For the reasons set out in the preamble, Title 14, Chapter II of

the Code of Federal Regulations is proposed to be amended as follows:

PART 300--[AMENDED]

1. The authority citation for part 300 continues to read as

follows:

Authority: 49 U.S.C. subtitle I and chapters 401, 411, 413, 415,

417, 419, 421, 449, 461, 463, and 465.

2. Paragraph (a-1) of Sec. 302.18 is redesignated as Sec. 300.18

and revised to read as follows:

Sec. 300.18 Motions to disqualify DOT employee in review of hearing

matters.

In cases to be determined on an evidentiary record, a party

desiring that a concerned DOT employee disqualify himself or herself

from participating in a DOT decision must file a motion supported by an

affidavit setting forth the grounds for such disqualification in

[[Page 5099]]

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

of the administrative law judge's decision can be obtained only upon

the filing of a petition for discretionary review, such motions must be

filed on or before the date answers are due pursuant to Sec. 302.32. In

cases where exceptions are filed to recommended, initial, or tentative

decisions or where the DOT decisionmaker orders review of an initial or

recommended decision on his or her own initiative, such motions must be

filed on or before the date briefs are due pursuant to Sec. 302.35 or

Sec. 302.218, as applicable. Failure to file a timely motion will be

deemed a waiver of disqualification. Applications for leave to file an

untimely motion seeking disqualification of a concerned DOT employee

must be accompanied by an affidavit setting forth in detail why the

facts relied upon as grounds for disqualification were not known and

could not have been discovered with reasonable diligence within the

prescribed time.

PART 302--[REVISED]

3. Part 302 is revised to read as follows:

PART 302--RULES OF PRACTICE IN PROCEEDINGS

Sec.

302.1 Applicability and description of part.

302.2 Definitions.

Subpart A--Rules of General Applicability

302.3 Filing of documents.

302.4 General requirements as to documents.

302.5 Amendment of documents.

302.6 Responsive documents.

302.7 Service of documents.

302.8 Computation of time.

302.9 Continuances and extensions of time.

302.10 Parties.

302.11 Motions.

302.12 Objections to public disclosure of information.

302.13 Consolidation of proceedings.

302.14 Petitions for reconsideration.

Non-Hearing Proceedings

302.15 Non-hearing procedures.

Rulemaking Proceedings

302.16 Petitions for rulemaking.

Oral Evidentiary Hearing Proceedings

302.17 Administrative law judges.

302.18 DOT decisionmaker.

302.19 Participation by persons not parties.

302.20 Formal intervention.

302.21 Appearances.

302.22 Prehearing conference.

302.23 Hearing.

302.24 Evidence.

302.25 Subpoenas.

302.26 Depositions.

302.27 Rights of witnesses; attendance fees and mileage.

302.28 Transcripts of hearings.

302.29 Argument before the administrative law judge.

302.30 Briefs to the administrative law judge.

302.31 Initial and recommended decisions; certification of the

record.

302.32 Petitions for discretionary review of initial decisions or

recommended decisions; review proceedings.

302.33 Tentative decision of the DOT decisionmaker.

302.34 Exceptions to tentative decisions of the DOT decisionmaker.

302.35 Briefs to the DOT decisionmaker.

302.36 Oral argument before the DOT decisionmaker.

302.37 Waiver of procedural steps after hearing.

302.38 Final decision of the DOT decisionmaker.

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

Air Carrier Permit Licensing Proceedings

302.201 Applicability.

302.202 Contents of applications.

302.203 Service of documents.

302.204 Responsive documents.

302.205 Economic data and other facts.

302.206 Verification.

Disposition of Applications

302.207 Cases to be decided on written submissions.

302.208 Petitions for oral presentation or judge's decision.

302.209 Procedures for deferral of applications.

302.210 Disposition of applications; orders establishing further

procedures.

302.211 Procedures in certificate cases involving initial or

continuing fitness.

302.212 Procedures in certificate cases involving international

routes.

302.213 Procedures in foreign air carrier permit cases.

302.214 Oral evidentiary hearing.

302.215 Briefs to the administrative law judge.

302.216 Administrative law judge's initial or recommended decision.

302.217 Exceptions to administrative law judge's initial or

recommended decision.

302.218 Briefs to the DOT decisionmaker.

302.219 Oral argument before the DOT decisionmaker.

302.220 Final decision of the Department.

Subpart C--Rules Applicable to Exemption Proceedings

302.301 Applicability.

302.302 Filing of applications.

302.303 Contents of applications.

302.304 Service of documents.

302.305 Posting of applications.

302.306 Dismissal or rejection of incomplete applications.

302.307 Answers to applications.

302.308 Replies to answers.

302.309 Requests for hearing.

302.310 Exemptions on the Department's initiative.

302.311 Emergency exemptions.

Subpart D--Rules Applicable to Enforcement Proceedings

302.401 Applicability.

302.402 Definitions.

302.403 Informal complaints.

302.404 Formal complaints.

302.405 Responsive documents.

302.406 Procedure for responding to formal complaints.

302.407 Commencement of enforcement proceeding.

302.408 Answers and replies.

302.409 Default.

302.410 Consolidation of proceedings.

302.411 Motions to dismiss and for summary judgment.

302.412 Admissions as to facts and documents.

302.413 Evidence of previous violations.

302.414 Prehearing conference.

302.415 Hearing.

302.416 Appearances by persons not parties.

302.417 Settlement of proceedings.

302.418 Motions for immediate suspension of operating authority

pendente lite.

302.419 Modification or dissolution of enforcement actions.

302.420 Saving clause.

Subpart E--Rules Applicable to Proceedings With Respect to Rates, Fares

and Charges for Foreign Air Transportation

302.501 Applicability.

302.502 Institution of proceedings.

302.503 Contents and service of petition or complaint.

302.504 Dismissal of petition or complaint.

302.505 Order of investigation.

302.506 Complaints requesting suspension of tariffs; answers to

such complaints.

302.507 Computing time for filing complaints.

Subpart F--Rules Applicable to Proceedings Concerning Airport Fees

302.601 Applicability.

302.603 Complaint by an air carrier or foreign air carrier; request

for determination by an airport owner or operator.

302.605 Contents of complaint or request for determination.

302.607 Answers to a complaint or request for determination.

302.609 Replies.

302.611 Review of complaints.

302.613 Review of requests for determination.

302.615 Decision by administrative law judge.

302.617 Petitions for discretionary review.

302.619 Completion of proceedings.

302.621 Final order.

Subpart G--Rules Applicable to Mail Rate Proceedings and Contracts

302.701 Applicability.

Final Mail Rate Proceedings

302.702 Institution of proceedings.

302.703 Order to show cause or instituting a hearing.

302.704 Objections and answers to order to show cause.

302.705 Further procedures.

[[Page 5100]]

302.706 Hearing.

Provision for Temporary Rate

302.707 Procedure for fixing temporary mail rates.

Informal Mail Rate Conference Procedure

302.708 Invocation of procedure.

302.709 Scope of conferences.

302.710 Participants in conferences.

302.711 Conditions upon participation.

302.712 Information to be requested from an air carrier.

302.713 DOT analysis of data for submission of answers thereto.

302.714 Availability of data to the U.S. Postal Service.

302.715 Post-conference procedure.

302.716 Effect of conference agreements.

302.717 Waiver of participant conditions.

Processing Contracts for the Carriage of Mail in Foreign Air

Transporation

302.718 Filing.

302.719 Explanation and data supporting the contract.

302.720 Service.

302.721 Complaints.

302.722 Answers to complaints.

302.723 Further procedures.

302.724 Petitions for reconsideration.

Appendix A--Index to Rules of Practice

Authority: 5 U.S.C. 551 et seq., 39 U.S.C. 5402; 42 U.S.C.,

4321, 49 U.S.C. Subtitle I and Chapters 401, 411, 413, 415, 417,

419, 461, 463, 471.

Sec. 302.1 Applicability and description of part.

(a) Applicability. This part governs the conduct of all aviation

economic proceedings before the Department whether instituted by order

of the Department or by the filing with the Department of an

application, complaint, petition, motion, or other authorized or

required document. This part also contains delegations to

administrative law judges and to the DOT decisionmaker of the

Department's function to render the agency decision in certain cases

and the procedures for review of those decisions. This part applies

unless otherwise specified by order of the Department.

(b) Description. Subpart A of this part sets forth general rules

applicable to all types of proceedings. Each of the other subparts of

this part sets forth special rules applicable to the type of

proceedings described in the title of the subpart. Therefore, for

information as to applicable rules, reference should be made to subpart

A and to the rules in the subpart relating to the particular type of

proceeding, if any. In addition, reference should be made to Subtitle

VII of Title 49 of the United States Code (Transportation) (``the

Statute''), and to the substantive rules, regulations and orders of the

Department relating to the proceeding. Wherever there is any conflict

between one of the general rules in subpart A and a special rule in

another subpart applicable to a particular type of proceeding, the

special rule will govern.

(c) Reference to part and method of citing rules. This part may be

referred to as the ``Rules of Practice''. Each section, and any

paragraph or subparagraph thereof, may be referred to as a ``Rule''.

The number of each rule need include only the numbers and letters at

the right of the decimal point. For example, ``302.7 Service of

documents'', may be referred to as ``Rule 7''.

Sec. 302.2 Definitions.

Administrative law judge as used in this part means an

administrative law judge appointed pursuant to 5 U.S.C. 3105.

DOT Decisionmaker as used in this part is the official authorized

to issue final decisions of the Department as set forth in Sec. 302.18.

This includes the Assistant Secretary for Aviation and International

Affairs, the senior career official in the Office of the Assistant

Secretary for Aviation and International Affairs, the Deputy Secretary,

and the Secretary.

Hearing case or oral hearing case means any proceeding that the

Department has determined will be conducted on the record using oral

evidentiary procedures.

Non-hearing case means any proceeding not involving oral

evidentiary procedures.

Party as used in this part includes the person initiating a

proceeding, such as an applicant, complainant, or petitioner; any

person filing an answer to such filing; and any other persons as set

forth in Sec. 302.10.

Statute when used in this chapter means Subtitle VII of Title 49 of

the United States Code (Transportation).

Subpart A--Rules of General Applicability

Sec. 302.3 Filing of documents.

(a) Filing address, date of filing, hours. (1) Documents required

by any section of this part to be filed with the Department must be

filed with Department of Transportation Dockets at the Department's

offices in Washington, DC.

(2) Such documents will be deemed to be filed on the date on which

they are actually received by the Department. Documents must be filed

between the hours of 10:00 a.m. and 5:00 p.m., Monday to Friday,

inclusive, except on legal holidays.

(b) Formal specifications of documents. (1) Documents filed under

this part must be on white paper not larger than 8\1/2\ by 11 inches,

including any tables, charts and other documents that may be included.

Ink must be black to provide substantial contrast for scanning and

photographic reproduction. Text must be double-spaced (except for

footnotes and long quotations which may be single-spaced) using type

not smaller than 12 point. The left margin must be at least 1\1/2\

inches; all other margins must be at least 1 inch. The title page and

first page must bear a clear date and all subsequent pages must bear a

page number and abbreviated heading. In order to facilitate automated

processing in document sheet feeders, documents of more than one page

should be held together with removable metal clips or similar

retainers. Original documents may not be bound in any form or include

tabs, except in cases assigned by order to an Administrative Law Judge

for hearing, in which case the filing requirements will be set by

order. Section 302.35 contains additional requirements as to the

contents and style of briefs.

(2) Papers may be reproduced by any duplicating process, provided

all copies are clear and legible. Appropriate notes or other

indications must be used, so that the existence of any matters shown in

color on the original will be accurately indicated on all copies.

(c) Number of copies. (1) Unless otherwise specified, an executed

original, along with the number of true copies set forth in this

paragraph for each type of proceeding, must be filed with Department of

Transportation Dockets. The copies filed need not be signed, but the

name of the person signing the original document, as distinguished from

the firm or organization he or she represents, must also be typed or

printed on all copies below the space provided for signature.

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

Copies

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

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

Agreements:

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

[[Page 5101]]

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

Complaints:

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

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

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

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

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

Exemptions:

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

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

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

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

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

International Authority for U.S. Air Carriers (certificates,

exemptions, allocation of limited frequencies or charters).. 7

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

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

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

Tariff Justifications to exceed Standard International Fare

Level....................................................... 6

U.S. Air Carrier Certificates (involving Initial or

Continuing Fitness)......................................... 6

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

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

(2) Filers are encouraged to submit one of the required true copies

(except for counterparts of Agreement CAB 18900) in electronic form on

a 3\1/2\ inch floppy disk, labeled to show the filer's and

representative's names, docket number (if known) or space for it, and

document title. The electronic submission must be in one of the

following formats: Microsoft Word (or RTF), WordPerfect, Excel, Lotus

123, or ASCII text. The disk must be accompanied by a signed

certification that it is a true copy of the executed original document.

(d) Prohibition and dismissal of certain documents. (1) No document

that is subject to the general requirements of this subpart concerning

form, filing, subscription, service or similar matters will be accepted

for filing by the Department, and will not be physically incorporated

in the docket of the proceeding, unless:

(i) Such document and its filing by the person submitting it have

been expressly authorized or required in the Statute, any other law,

this part, other Department regulations, or any order, notice or other

document issued by the DOT decisionmaker, the Chief Administrative Law

Judge or an administrative law judge assigned to the proceeding, and

(ii) Such document complies with each of the requirements of this

paragraph and Sec. 302.7, and is submitted as a formal application,

complaint, petition, motion, answer, pleading, or similar paper rather

than as a letter, telegram, or other informal written communication;

Provided, however, That for good cause shown, pleadings of any public

body or civic organization or comments concerning tariff agreements

that have not been docketed, may be submitted in the form of a letter.

(2) If any document initiating, or filed in, a proceeding is not in

substantial conformity with the applicable rules or regulations of the

Department as to the contents thereof, or is otherwise insufficient,

the Department, on its own initiative, or on motion of any party, may

reject, strike or dismiss such document, or require its amendment.

(e) Motions for leave to file otherwise unauthorized documents. (1)

The Department will accept otherwise unauthorized documents for filing

only if leave has been obtained from the DOT decisionmaker or, if

applicable, the administrative law judge, on written motion and for

good cause shown.

(2) Such motions shall contain a concise statement of the matters

relied upon as good cause and shall be attached to the pleading or

other document for which leave to file is sought, or the written motion

may be incorporated into the otherwise unauthorized document for which

admission is sought. In such event, the document filed shall be titled

to describe both the motion and the underlying documents.

(3) Such motions must be filed within seven (7) days after service

of any document, order, or ruling to which the proposed filing is

responsive and must be served on all parties to the proceeding.

(f) Official docket copy. With respect to all documents filed under

this part that are scanned, the electronic scanned record produced by

the Department shall thereafter be the official docket copy of the

document and any subsequent copies generated by the Department's

electronic records system will be usable for admission as record copies

in any proceeding before the Department.

(g) Retention of documents by the Department. All documents filed

with or presented to the Department may be retained in the files of

Department of Transportation Dockets. However, the Department may

permit the withdrawal of original documents by motion upon the

submission of properly authenticated copies to replace such documents.

Sec. 302.4 General requirements as to documents.

(a) Contents. (1) In case there is no rule, regulation, or order of

the Department that prescribes the contents of a formal application,

petition, complaint, motion or other authorized or required document,

such document shall contain a proper identification of the parties

concerned, a concise but complete statement of the facts relied upon

and the relief sought, and, where required, such document shall be

accompanied by an Environmental Assessment, in conformity with the

provisions of part 313 of this chapter.

(2)(i) Each document must include with or provide on its first

page:

(A) The docket title and subject;

(B) The relevant operating administration before which the

application or request is filed;

(C) The identity of the filer and its filing agent, if applicable;

(D) The name and mailing address of the designated agent for

service of any documents filed in the proceeding, along with the

telephone and facsimile numbers and, if available, electronic mail

address of that person; and

(E) The title of the specific action being requested.

Department of Transportation Dockets has an Expedited Processing

Sheet that

[[Page 5102]]

filers can use to assist in preparing this index.

(3) All documents filed under this part consisting of twenty (20)

or more pages must contain a subject index of the matter in such

document, with page references.

(b) Subscription. Every application, petition, complaint, motion or

other authorized or required document must be signed by the party

filing the same, or by a duly authorized officer or the attorney-at-law

of record of such party, or by any other person so authorized. The

signature of the person signing the document constitutes a

certification that he or she has read the document; that to the best of

his or her knowledge, information, and belief every statement contained

in the document is true and no such statements are misleading; and that

the document is not interposed for delay.

Sec. 302.5 Amendment of documents.

(a) An application may be amended prior to the filing of answers

thereto, or, if no answer is filed, prior to the issuance of an order

establishing further procedures, disposing of the application, or

setting the case for hearing. Thereafter, applications may be amended

only if leave is granted pursuant to the procedures set forth in

Sec. 302.11.

(b) Except as otherwise provided, if properly amended, a document

and any statutory deadline shall be made effective as of the date of

original filing but the time prescribed for the filing of an answer or

any further responsive document directed towards the amended document

shall be computed from the date of the filing of the amendment.

Sec. 302.6 Responsive documents.

(a) Answers. Answers to applications, complaints, petitions,

motions or other documents or orders instituting proceedings may be

filed by any person. In hearing cases, answers may be filed by any

party to such proceedings or any person who has a petition for

intervention pending. Except as otherwise provided, answers are not

required.

(b) Further responsive documents. Except as otherwise provided, no

reply to an answer, reply to a reply, or any further responsive

document shall be filed. Where such further responsive documents are

not permitted, all new matter contained in an answer filed pursuant to

paragraph (a) of this section shall be deemed controverted.

(c) Time for filing. Except as otherwise provided, an answer or any

further responsive document shall be filed within seven (7) days after

service of the document to which such responsive filing is directed.

Sec. 302.7 Service of documents.

(a) Who makes service--(1) The Department. Formal complaints,

notices, orders, and similar documents issued by the Department will be

served by the Department upon all parties to the proceeding.

(2) The parties. Answers, petitions, motions, briefs, exceptions,

notices, protests, or memoranda, or any other documents filed by any

party or other person with the Department shall be served by such party

or other person upon all parties to the proceeding in which it is

filed; including, where applicable, all persons who have petitioned for

intervention in, or consolidation of applications with, such

proceeding. Proof of service shall accompany all documents when they

are filed. The Department may require additional service of any

document(s).

(b) How service may be made. Service may be made by first class

mail, express mail, priority mail, registered or certified mail,

facsimile transmission, personal delivery, or by electronic mail. The

Department may prescribe other means of service by order or notice. The

means of service selected must be such as to permit compliance with

section 46103 of the Statute, which provides for service of notices and

processes in a proceeding by personal service or registered or

certified mail.

(c) Who may be served. Service upon a party or person may be made

upon an individual, or upon a member of a partnership or firm to be

served, or upon the president or other officer of the corporation,

company, firm, or association to be served, or upon the assignee or

legal successor of any of the foregoing, or upon any attorney of record

for the party, or upon the agent designated by an air carrier or

foreign air carrier under section 46103 of the Statute, but it shall be

served upon a person designated by a party to receive service of

documents in a particular proceeding in accordance with

Sec. 302.4(a)(2)(iv) once a proceeding has been commenced.

(d) Where service may be made. Service shall be made at the

principal place of business of the party to be served, or at his or her

usual residence if he or she is an individual, or at the office of the

party's attorney of record, or at the office or usual residence of the

agent designated by an air carrier or foreign air carrier under section

46103 of the Statute, or at the post office or electronic address or

facsimile number stated for a person designated to receive service

pursuant to Sec. 302.4(a)(2)(iv).

(e) Proof of service. Proof of service of any document shall

consist of one of the following:

(1) A certificate of mailing executed by the person mailing the

document.

(2) A certificate of successful transmission executed by the person

transmitting the document by facsimile or electronic mail, listing the

facsimile numbers or electronic mail address to which the document was

sent.

(3) An acknowledgment of service signed by a person receiving

service personally, or a certificate of the person making personal

service.

(f) Date of service. Whenever proof of service by post office or

electronic mail is made, the date of mailing shall be the date of

service. Whenever proof of service by personal delivery or facsimile

transmission is made, the date of such delivery or facsimile

transmission shall be the date of service.

(g) Freely Associated State Proceedings. In any proceeding directly

involving air transportation to the Federated States of Micronesia, the

Marshall Islands, or Palau, the Department and any party or participant

in the proceeding shall serve all documents on the President and the

designated authorities of the government(s) involved. This requirement

shall apply to all proceedings where service is otherwise required, and

shall be in addition to any other service required by this chapter.

(h) Alaska Proceedings. In any proceeding that affects a point in

Alaska, the person filing shall send an additional copy to: U.S.

Department of Transportation, Alaska Field Office, 801 B Street, Suite

506, Anchorage, Alaska 99501-3657.

Sec. 302.8 Computation of time.

In computing any period of time prescribed or allowed by this part,

by notice, order or regulation or by any applicable statute, the day of

the act, event, or default after which the designated period of time

begins to run is not to be included. The last day of the period so

computed is to be included, unless it is a Saturday, Sunday, or legal

holiday for the Department, in which event the period runs until the

end of the next day that is neither a Saturday, Sunday, nor holiday.

When the period of time prescribed is seven (7) days or fewer,

intermediate Saturdays, Sundays, and holidays shall be excluded in the

computation, unless otherwise specified by the DOT decisionmaker or the

administrative law judge assigned to the proceeding, as the case may

be.

[[Page 5103]]

Sec. 302.9 Continuances and extensions of time.

(a) Whenever a party has the right or obligation to take action

within a period prescribed by this part, by a notice given thereunder,

or by an order or regulation, the DOT decisionmaker or the

administrative law judge assigned to the proceeding, as appropriate,

may:

(1) Before the expiration of the prescribed period, with or without

notice, extend such period, or

(2) upon motion, permit the act to be done after the expiration of

the specified period, where good cause for the failure to act on time

is clearly shown.

(b) Except where an administrative law judge has been assigned to a

proceeding, requests for continuance or extensions of time, as

described in paragraph (a) of this section, shall be directed to the

DOT decisionmaker. Requests for continuances and extensions of time may

be directed to the Chief Administrative Law Judge in the absence of the

administrative law judge assigned to the proceeding.

Sec. 302.10 Parties.

(a) In addition to the persons set forth in Sec. 302.2, in hearing

cases, parties shall include appropriate Department staff designated to

participate in the proceeding and any persons authorized to intervene

or granted permission to participate in accordance with Secs. 302.19

and 302.20. In any proceeding directly involving air transportation to

the Federated States of Micronesia, the Marshall Islands or Palau,

these governments or their designated authorities shall be a party.

(b) Upon motion and for good cause shown, the Department may order

a substitution of parties, except that in case of the death of a party,

substitution may be ordered without the filing of a motion.

(c) An association composed entirely or in part of direct air

carriers may participate in any proceedings of the Department to which

the Department's procedural regulations apply if the association

represents members that are identified in any documents filed with the

Department, and that have specifically authorized the positions taken

by the association in that proceeding. The specific authorizations may

be informal and evidence of them shall be provided only upon request of

the Department. Upon motion of any interested person or upon its own

initiative, the Department may issue an order requiring an association

to withdraw from a case on the grounds of significant divergence of

interest or position within the association.

Sec. 302.11 Motions.

(a) Generally. An application to the DOT decisionmaker or an

administrative law judge for an order or ruling not otherwise

specifically provided for in this part shall be by motion. If an

administrative law judge is assigned to a proceeding and before the

issuance of a recommended or initial decision or the certification of

the record to the DOT decisionmaker, all motions shall be addressed to

the administrative law judge. At all other times, motions shall be

addressed to the DOT decisionmaker. All motions shall be made at an

appropriate time depending upon the nature thereof and the relief

requested therein. This paragraph should not be construed as

authorizing motions in the nature of petitions for reconsideration.

(b) Form and contents. Unless made during a hearing, motions shall

be made in writing in conformity with Secs. 302.3 and 302.4, shall

state their grounds and the relief or order sought, and shall be

accompanied by any affidavits or other evidence desired to be relied

upon. Motions made during hearings, answers to them, and rulings on

them, may be made orally on the record unless the administrative law

judge directs otherwise. Written motions shall be filed as separate

documents, and shall not be incorporated in any other documents, except

where incorporation of a motion in another document is specifically

authorized by the Department, or where a document is filed that

requests alternative forms of relief and one of these alternative

requests is properly to be made by motion. In these instances the

document filed shall be appropriately titled and identified to indicate

that it incorporates a motion; otherwise, the motion will be

disregarded.

(c) Answers to motions. Within seven (7) days after a motion is

served, or such other period as the DOT decisionmaker or the

administrative law judge may fix, any party to the proceeding may file

an answer in support of or in opposition to the motion, accompanied by

such affidavits or other evidence as it desires to rely upon. Except as

otherwise provided, no reply to an answer, reply to a reply, or any

further responsive document shall be filed.

(d) Oral arguments; briefs. No oral argument will be heard on

motions unless the DOT decisionmaker or the administrative law judge

otherwise directs. Written memoranda or briefs may be filed with

motions or answers to motions, stating the points and authorities

relied upon in support of the position taken.

(e) Requests for expedition. Any interested person may by motion

request expedition of any proceeding or file an answer in support of or

in opposition to such motions.

(f) Effect of pendency of motions. The filing or pendency of a

motion shall not automatically alter or extend the time to take action

fixed by this part or by any order of the Department or of an

administrative law judge (or any extension granted thereunder).

(g) Disposition of motions. The DOT decisionmaker shall pass upon

all motions properly submitted to him or her for decision. The

administrative law judge shall pass upon all motions properly addressed

to him or her, except that, if the administrative law judge finds that

a prompt decision by the DOT decisionmaker on a motion is essential to

the proper conduct of the proceeding, the administrative law judge may

refer such motion to the DOT decisionmaker for decision.

(h) Appeals to the DOT decisionmaker from rulings of administrative

law judges. Rulings of administrative law judges on motions may not be

appealed to the DOT decisionmaker prior to his or her consideration of

the entire proceeding except in extraordinary circumstances and with

the consent of the administrative law judge. An appeal shall be

disallowed unless the administrative law judge finds, either on the

record or in writing, that the allowance of such an appeal is necessary

to prevent substantial detriment to the public interest or undue

prejudice to any party. If an appeal is allowed, any party may file a

brief with the DOT decisionmaker within such period as the

administrative law judge directs. No oral argument will be heard unless

the DOT decisionmaker directs otherwise. The rulings of the

administrative law judge on a motion may be reviewed by the DOT

decisionmaker in connection with his or her final action in the

proceeding or at any other appropriate time irrespective of the filing

of an appeal or any action taken on it.

Sec. 302.12 Objections to public disclosure of information.

(a) Generally. Part 7 of the Office of the Secretary regulations,

Public Availability of Information, governs the availability of records

and documents of the Department to the public. (49 CFR 7)

(b) Information contained in written documents. Any person who

objects to the public disclosure of any information filed in any

proceeding, or pursuant to the provisions of the Statute, or any

[[Page 5104]]

Department rule, regulation, or order, shall segregate, or request the

segregation of, such information into a separate submission and shall

file it separately in a sealed envelope, bearing the caption of the

enclosed submission, and the notation ``Classified or Confidential

Treatment Requested Under Sec. 302.12.'' At the time of filing such

submission (or, when the objection is made by a person who is not the

filer, within five (5) days after the filing of such submission), the

objecting party shall file a motion to withhold the information from

public disclosure, in accordance with the procedure outlined in

paragraph (d) or (f) of this section, as appropriate. Notwithstanding

any other provision of this section, copies of the filed submission and

of the motion need not be served upon any other party unless so ordered

by the Department.

(c) Information contained in oral testimony. Any person who objects

to the public disclosure of any information sought to be elicited from

a witness or deponent on oral examination shall, before such

information is disclosed, make his or her objection known. Upon such

objection duly made, the witness or deponent shall be compelled to

disclose such information only in the presence of the administrative

law judge or the person before whom the deposition is being taken, as

the case may be, the official stenographer and such attorneys for and

representative of each party as the administrative law judge or the

person before whom the deposition is being taken shall designate, and

after all present have been sworn to secrecy. The transcript of

testimony containing such information shall be segregated and filed in

a sealed envelope, bearing the title and docket number of the

proceeding, and the notation ``Classified or Confidential Treatment

Requested Under Sec. 302.12 Testimony Given by (name of witness or

deponent).'' Within five (5) days after such testimony is given, the

objecting person shall file a motion in accordance with the procedure

outlined in paragraph (d) of this section, to withhold the information

from public disclosure. Notwithstanding any other provision of this

section, copies of the segregated portion of the transcript and of the

motion need not be served upon any other party unless so ordered by the

Department.

(d) Form of motion. Motions to withhold from public disclosure

information covered by paragraphs (b) and (c) of this section shall be

filed with the Department in accordance with the following procedure:

(1) The motion shall include:

(i) A description of the information sought to be withheld,

sufficient for identification of the same;

(ii) A statement explaining how and why the information falls

within the exemptions from the Freedom of Information Act (5 U.S.C.

552(b) (1)-(9)); and

(iii) A statement explaining how and why public disclosure of the

information would adversely affect the interests of the objecting

persons and is not required in the interest of the public.

(2) Such motion shall be filed with the person conducting the

proceeding, or with the person with whom said application, report, or

submission is required to be filed. Such motion will be denied when the

complete justification required by this paragraph is not provided.

(3) During the pendency of such motion, the ruling official may, by

notice or order, allow limited disclosure to parties' representatives,

for purposes of participating in the proceeding, upon submission by

them of affidavits swearing to protect the confidentiality of the

documents at issue.

(e) Conditions of disclosure. The order, notice or other action of

the Department containing its ruling upon each such motion will specify

the extent to which, and the conditions upon which, the information may

be disclosed to the parties and to the public, which ruling shall

become effective upon the date stated therein, unless, within five (5)

days after the date of the entry of the Department's order with respect

thereto, a petition is filed by the objecting person requesting

reconsideration by the Department, or a written statement is filed

indicating that the objecting person in good faith intends to seek

judicial review of the Department's order.

(f) Objection by Government departments or representative thereof.

In the case of objection to the public disclosure of any information

filed by or elicited from any United States Government department or

agency, or representative thereof, under paragraph (b) or (c) of this

section, the department or agency making such objection shall be

exempted from the provisions of paragraphs (b), (c), and (d) of this

section insofar as said paragraphs require the filing of a written

objection to such disclosure. However, any department, agency, or

representative thereof may, if it so desires, file a memorandum setting

forth the reasons why it is claimed that a public disclosure of the

information should not be made. If such a memorandum is submitted, it

shall be filed and handled as is provided by this section in the case

of a motion to withhold information from public disclosure.

Sec. 302.13 Consolidation of proceedings.

(a) Initiation of consolidations. The Department, upon its own

initiative or upon motion, may consolidate for hearing or for other

purposes or may contemporaneously consider two or more proceedings that

involve substantially the same parties, or issues that are the same or

closely related, if it finds that such consolidation or contemporaneous

consideration will be conducive to the proper dispatch of its business

and to the ends of justice and will not unduly delay the proceedings.

Although the Department may, in any particular case, consolidate or

contemporaneously consider two or more proceedings on its own motion,

the burden of seeking consolidation or contemporaneous consideration of

a particular application shall rest upon the applicant and the

Department will not undertake to search its docket for all applications

that might be consolidated or contemporaneously considered.

(b) Time for filing. Unless the Department has provided otherwise

in a particular proceeding, a motion to consolidate or

contemporaneously consider an application with any other application

shall be filed within 21 days of the original application in the case

of international route awards under section 41102 (see Sec. 302.212),

or, where a proceeding has been set for hearing before an

administrative law judge, not later than the prehearing conference in

the proceeding with which consolidation or contemporaneous

consideration is requested. If made at such conference, the motion may

be oral. All motions for consolidation or consideration of issues that

enlarge, expand, or otherwise change the nature of the proceeding shall

be addressed to the DOT decisionmaker, unless made orally at the

prehearing conference, in which event the presiding administrative law

judge shall present such motion to the DOT decisionmaker for his or her

decision. A motion that is not timely filed, or that does not relate to

an application pending at such time, shall be dismissed unless the

movant shall clearly show good cause for failure to file such motion or

application on time.

(c) Answer. If a motion to consolidate two or more proceedings is

filed with the Department, any party to any of such proceedings, or any

person who has a petition for intervention pending, may file an answer

to such motion within such period as the DOT decisionmaker may permit.

The

[[Page 5105]]

administrative law judge may require that answers to such motions be

stated orally at the prehearing conference in the proceeding with which

the consolidation is proposed.

Sec. 302.14 Petitions for reconsideration.

(a) Department orders subject to reconsideration; time for filing.

(1) Unless an order or a rule of the Department specifically provides

otherwise:

(i) Any interested person may file a petition for reconsideration

of any interlocutory order issued by the Department that institutes a

proceeding; and

(ii) Any party to a proceeding may file a petition for

reconsideration, rehearing, or reargument of final orders issued by the

Department (See Sec. 302.38), or an interlocutory order that defines

the scope and issues of a proceeding or suspends a provision of a

tariff on file with the Department.

(2)Unless otherwise provided, petitions for reconsideration shall

be filed, in the case of a final order, within twenty (20) days after

service thereof, and, in the case of an interlocutory order, or a final

decision described in Sec. 302.220, within ten (10) days after service.

However, neither the filing nor the granting of such a petition shall

operate as a stay of such final or interlocutory order unless

specifically so ordered by the DOT decisionmaker. Within ten (10) days

after a petition for reconsideration, rehearing, or reargument is

filed, any party to the proceeding may file an answer in support of or

in opposition. Motions for extension of time to file a petition or

answer, and for leave to file a petition or answer after the time for

the filing has expired, will not be granted except on a showing of

unusual and exceptional circumstances, constituting good cause for the

movant's inability to meet the established procedural dates.

(b) Contents of petition. A petition for reconsideration,

rehearing, or reargument shall state, briefly and specifically, the

matters of record alleged to have been erroneously decided, the ground

relied upon, and the relief sought. If a decision by the Secretary or

Deputy Secretary is requested, the petition should describe in detail

the reasons for such request and specify any important national

transportation policy issues that are presented. If the petition is

based, in whole or in part, on allegations as to the consequences that

would result from the final order, the basis of such allegations shall

be set forth. If the petition is based, in whole or in part, on new

matter, such new matter shall be set forth, accompanied by a statement

to the effect that petitioner, with due diligence, could not have known

or discovered such new matter prior to the date the case was submitted

for decision. Unless otherwise directed by the DOT decisionmaker upon a

showing of unusual or exceptional circumstances, petitions for

reconsideration, rehearing or reargument or answers thereto that exceed

twenty-five (25) pages (including appendices) in length shall not be

accepted for filing by Department of Transportation Dockets.

(c) Successive petitions. A successive petition for rehearing,

reargument, reconsideration filed by the same party or person, and upon

substantially the same ground as a former petition that has been

considered or denied will not be entertained.

Non-Hearing Proceedings

Sec. 302.15 Non-hearing procedures.

In cases where oral evidentiary hearing procedures will not be

used, Secs. 302.17 through 302.37, relating to hearing procedures,

shall not be applicable except to the extent that the DOT decisionmaker

shall determine that the application of some or all of such rules in

the particular case will be conducive to the proper dispatch of its

business and to the ends of justice. References in these and other

sections of this part to powers or actions by administrative law judges

shall not apply.

Rulemaking Proceedings

Sec. 302.16 Petitions for rulemaking.

Any interested person may petition the Department for the issuance,

amendment, modification, or repeal of any regulation, subject to the

provisions of part 5, Rulemaking Procedures, of the Office of the

Secretary regulations (49 CFR 5):

Oral Evidentiary Hearing Proceedings

Sec. 302.17 Administrative law judges.

(a) Powers and delegation of authority. (1) An administrative law

judge shall have the following powers, in addition to any others

specified in this part:

(i) To give notice concerning and to hold hearings;

(ii) To administer oaths and affirmations;

(iii) To examine witnesses;

(iv) To issue subpoenas and to take or cause depositions to be

taken;

(v) To rule upon offers of proof and to receive relevant evidence;

(vi) To regulate the course and conduct of the hearing;

(vii) To hold conferences before or during the hearing for the

settlement or simplification of issues;

(viii) To rule on motions and to dispose of procedural requests or

similar matters;

(ix) To make initial or recommended decisions as provided in

Sec. 302.31;

(x) To take any other action authorized by this part or by the

Statute.

(2) The administrative law judge shall have the power to take any

other action authorized by part 385 of this chapter or by the

Administrative Procedure Act.

(3) The administrative law judge assigned to a particular case is

delegated the DOT decisionmaker's function of making the agency

decision on the substantive and procedural issues remaining for

disposition at the close of the hearing in such case, except that this

delegation does not apply in cases where the record is certified to the

DOT decisionmaker, with or without an initial or recommended decision

by the administrative law judge, or in cases requiring Presidential

approval under section 41307 of the Statute. This delegation does not

apply to the review of rulings by the administrative law judge on

interlocutory matters that have been appealed to the DOT decisionmaker

in accordance with the requirements of Sec. 302.11.

(4) The administrative law judge's authority in each case will

terminate either upon the certification of the record in the proceeding

to the DOT decisionmaker, or upon the issuance of an initial or

recommended decision, or when he or she shall have withdrawn from the

case upon considering himself or herself disqualified.

(b) Disqualification. An administrative law judge shall withdraw

from the case if at any time he or she deems himself or herself

disqualified. If, prior to the initial or recommended decision in the

case, there is filed with the administrative law judge, in good faith,

an affidavit of personal bias or disqualification with substantiating

facts and the administrative law judge does not withdraw, the DOT

decisionmaker shall determine the matter, if properly presented by

exception or brief, as a part of the record and decision in the case.

The DOT decisionmaker shall not otherwise consider any claim of bias or

disqualification. The DOT decisionmaker, in his or her discretion, may

order a hearing on a charge of bias or disqualification.

Sec. 302.18 DOT decisionmaker.

(a) Assistant Secretary for Aviation and International Affairs.

Except as provided in paragraphs (b) and (c) of

[[Page 5106]]

this section, the Assistant Secretary for Aviation and International

Affairs is the DOT decisionmaker. The Assistant Secretary shall have

all of the powers set forth in Sec. 302.17(a)(1) and those additional

powers delegated by the Secretary. The Assistant Secretary may delegate

this authority in appropriate non-hearing cases to subordinate

officials.

(b) Oral hearing cases assigned to the senior career official.

Carrier selection proceedings for international route authority that

are set for oral hearing and such other oral hearing cases as the

Secretary deems appropriate will be assigned to the senior career

official in the Office of the Assistant Secretary for Aviation and

International Affairs, who will serve as the DOT decisionmaker. In all

such cases, the administrative law judge shall render a recommended

decision to the senior career official, who shall have all of the

powers set forth in Sec. 302.17(a)(1) and those additional powers

delegated by the Secretary.

(1) Decisions of the senior career official are subject to review

by, and at the discretion of, the Assistant Secretary for Aviation and

International Affairs. Petitions for discretionary review of decisions

of the senior career official will not be entertained. A notice of

review by the Assistant Secretary will establish the procedures for

review and will be issued within 14 days after the decision of the

senior career official is adopted. Unless a notice of review is issued,

the decision of the senior career official will be issued as a final

decision of the Department.

(2) Final decisions of the senior career official may be reviewed

upon a petition for reconsideration filed pursuant to Sec. 302.14. Such

a petition shall state clearly the basis for requesting reconsideration

and shall specify any questions of national transportation policy that

may be involved. The Assistant Secretary will either grant or deny the

petition.

(3) Upon review or reconsideration, the Assistant Secretary may

either affirm the decision or remand the decision to the senior career

official for further action consistent with such order of remand.

(4) Subject to the provisions of paragraphs (b) (2) and (3) of this

section, final decisions of the senior career official will be

transmitted to the President of the United States when required under

49 U.S.C. 41307.

(c) Secretary and Deputy Secretary. The Secretary or Deputy

Secretary may exercise any authority of the Assistant Secretary

whenever he or she believes a decision involves important questions of

national transportation policy.

Sec. 302.19 Participation by persons not parties.

Any person, including any State, subdivision thereof, State

aviation commission, or other public body, may appear at any hearing,

other than in an enforcement proceeding, and present any evidence that

is relevant to the issues. With the consent of the administrative law

judge or the DOT decisionmaker, such person may also cross-examine

witnesses directly. Such persons may also present to the administrative

law judge a written statement on the issues involved in the proceeding.

Such written statements shall be filed and served on all parties prior

to the close of the hearing.

Sec. 302.20 Formal intervention.

(a) Who may intervene. Any person who has a statutory right to be

made a party to an oral evidentiary hearing proceeding shall be

permitted to intervene. Any person whose intervention will be conducive

to the ends of justice and will not unduly delay the conduct of such

proceeding may be permitted to intervene.

(b) Considerations relevant to determination of petition to

intervene. In passing upon a petition to intervene, the following

factors, among other things, will be considered and will be liberally

interpreted to facilitate the effective participation by members of the

public in Department proceedings:

(1) The nature of the petitioner's right under the statute to be

made a party to the proceeding;

(2) The nature and extent of the property, financial or other

interest of the petitioner;

(3) The effect of the order that may be entered in the proceeding

on petitioner's interest;

(4) The availability of other means whereby the petitioner's

interest may be protected;

(5) The extent to which petitioner's interest will be represented

by existing parties;

(6) The extent to which petitioner's participation may reasonably

be expected to assist in the development of a sound record; and

(7) The extent to which participation of the petitioner will

broaden the issues or delay the proceeding.

(c) Petition to intervene--(1) Contents. Any person desiring to

intervene in a proceeding shall file a petition in conformity with this

part setting forth the facts and reasons why he or she thinks he or she

should be permitted to intervene. The petition should make specific

reference to the factors set forth in paragraph (b) of this section.

(2) Time for filing. Unless otherwise ordered by the Department:

(i) A petition to intervene shall be filed with the Department

prior to the first prehearing conference, or, in the event that no such

conference is to be held, not later than fifteen (15) days prior to the

hearing.

(ii) A petition to intervene filed by a city, other public body, or

a chamber of commerce shall be filed with the Department not later than

the last day prior to the beginning of the hearing.

(iii) A petition to intervene that is not timely filed shall be

dismissed unless the petitioner shall clearly show good cause for his

or her failure to file such petition on time.

(3) Answer. Any party to a proceeding may file an answer to a

petition to intervene, making specific reference to the factors set

forth in paragraph (b) of this section, within seven (7) days after the

petition is filed.

(4) Disposition. The decision granting, denying or otherwise ruling

on any petition to intervene may be issued without receiving testimony

or oral argument either from the petitioner or other parties to the

proceeding.

(d) Effect of granting intervention. A person permitted to

intervene in a proceeding thereby becomes a party to the proceeding.

However, interventions provided for in this section are for

administrative purposes only, and no decision granting leave to

intervene shall be deemed to constitute an expression by the Department

that the intervening party has such a substantial interest in the order

that is to be entered in the proceeding as will entitle it to judicial

review of such order.

Sec. 302.21 Appearances.

(a) Any party to a proceeding may appear and be heard in person or

by a designated representative.

(b) No register of persons who may practice before the Department

is maintained and no application for admission to practice is required.

(c) Any person practicing or desiring to practice before the

Department may, upon hearing and good cause shown, be suspended or

barred from practicing.

Sec. 302.22 Prehearing conference.

(a) Purpose and scope of conference. At the discretion of the

administrative law judge, a prehearing conference may be called prior

to any hearing. Written notice of the prehearing conference shall be

sent by the administrative law judge to all parties to a proceeding and

to other persons who appear to have an interest in such proceeding. The

[[Page 5107]]

purpose of such a conference is to define the issues and the scope of

the proceeding, to secure statements of the positions of the parties

and amendments to the pleadings, to schedule the exchange of exhibits

before the date set for hearing, and to arrive at such agreements as

will aid in the conduct and disposition of the proceeding. For example,

consideration will be given to:

(1) Matters that the DOT decisionmaker can consider without the

necessity of proof;

(2) Admissions of fact and of the genuineness of documents;

(3) Requests for documents;

(4) Admissibility of evidence;

(5) Limitation of the number of witnesses;

(6) Reducing of oral testimony to exhibit form;

(7) Procedure at the hearing; and

(8) Use of electronic media as a basis for exchange of briefs,

hearing transcripts and exhibits, etc., in addition to the official

record copy.

(b) Actions during prehearing conference. The administrative law

judge may require a further conference, or responsive pleadings, or

both. If a party refuses to produce documents requested by another

party at the conference, the administrative law judge may compel the

production of such documents prior to a hearing by subpoena issued in

accordance with the provisions of Sec. 302.25 as though at a hearing.

Applications for the production prior to hearing of documents in the

Department's possession shall be addressed to the administrative law

judge, in accordance with the provisions of Sec. 302.25(g), in the same

manner as provided therein for production of documents at a hearing.

The administrative law judge may also, on his or her own initiative or

on motion of any party, direct any party to the proceeding (air carrier

or non-air carrier) to prepare and submit exhibits setting forth

studies, forecasts, or estimates on matters relevant to the issues in

the proceeding.

(c) Report of prehearing conference. The administrative law judge

shall issue a report of prehearing conference, defining the issues,

giving an account of the results of the conference, specifying a

schedule for the exchange of exhibits and rebuttal exhibits, the date

of hearing, and specifying a time for the filing of objections to such

report. The report shall be served upon all parties to the proceeding

and any person who appeared at the conference. Objections to the report

may be filed by any interested person within the time specified

therein. The administrative law judge may revise his or her report in

the light of the objections presented. The revised report, if any,

shall be served upon the same persons as was the original report.

Exceptions may be taken on the basis of any timely written objection

that has not been met by a revision of the report if the exceptions are

filed within the time specified in the revised report. Such report

shall constitute the official account of the conference and shall

control the subsequent course of the proceeding, but it may be

reconsidered and modified at any time to protect the public interest or

to prevent injustice.

Sec. 302.23 Hearing.

The administrative law judge to whom the case is assigned or the

DOT decisionmaker shall give the parties reasonable notice of a hearing

or of the change in the date and place of a hearing and the nature of

such hearing.

Sec. 302.24 Evidence.

(a) Evidence presented at the hearing shall be limited to material

evidence relevant to the issues as drawn by the pleadings or as defined

in the report of prehearing conference, subject to such later

modifications of the issues as may be necessary to protect the public

interest or to prevent injustice, and shall not be unduly repetitious.

Evidence shall be presented in such form by all parties as the

administrative law judge may direct.

(b) Objections to evidence. Objections to the admission or

exclusion of evidence shall be in short form, stating the grounds of

objections relied upon, and the transcript shall not include argument

or debate except as ordered by the administrative law judge. Rulings on

such objections shall be a part of the transcript.

(c) Exhibits. When exhibits are offered in evidence, one copy must

be furnished to each of the parties at the hearing, and two copies to

the administrative law judge, unless the parties previously have been

furnished with copies or the administrative law judge directs

otherwise. If the administrative law judge has not fixed a time for the

exchange of exhibits, the parties shall exchange copies of exhibits at

the earliest practicable time, preferably before the hearing or, at the

latest, at the commencement of the hearing. Copies of exhibits may, at

the discretion of the administrative law judge or the DOT

decisionmaker, be furnished by use of electronic media in addition to

an official record copy.

(d) Substitution of copies for original exhibits. In his or her

discretion, the administrative law judge may permit a party to withdraw

original documents offered in evidence and substitute true copies in

lieu thereof.

(e) Designation of parts of documents. When relevant and material

matter offered in evidence by any party is embraced in a book, paper,

or document containing other matter not material or relevant, the party

offering the same shall plainly designate the matter so offered. The

immaterial and irrelevant parts shall be excluded and shall be

segregated insofar as practicable. If the volume of immaterial or

irrelevant matter would unduly encumber the record, such submission

will not be received in evidence, but may be marked for identification,

and, if properly authenticated, the relevant or material matter may be

read into the record, or, if the administrative law judge so directs, a

true copy of such matter, in proper form, shall be received as an

exhibit, and like copies delivered by the party offering the same to

opposing parties or their attorneys appearing at the hearing, who shall

be afforded an opportunity to examine the submission, and to offer in

evidence in like manner other portions of the exhibit.

(f) Records in other proceedings. In case any portion of the record

in any other proceeding or civil or criminal action is offered in

evidence, a true copy of such portion shall be presented for the record

in the form of an exhibit unless:

(1) The portion is specified with particularity in such manner as

to be readily identified;

(2) The party offering the same agrees unconditionally to supply

such copies later, or when required by the DOT decisionmaker;

(3) The parties represented at the hearing stipulate upon the

record that such portion may be incorporated by reference, and that any

portion offered by any other party may be incorporated by like

reference upon compliance with paragraphs (f) (1) and (2) of this

section; and

(4) The administrative law judge directs such incorporation or

waives the requirement in paragraph (f)(3) of this section with the

consent of the parties.

(g) Official notice of facts contained in certain documents. (1)

Without limiting, in any manner or to any extent, the discretionary

powers of the DOT decisionmaker and the administrative law judge to

notice other matters or documents properly the subject of official

notice, facts contained in any document within the categories

enumerated in this subdivision are officially noticed in all formal

economic proceedings except those subject to subpart D of this part.

Each such

[[Page 5108]]

category shall include any document antedating the final Department

decision in the proceeding where such notice is taken. The matters

officially noticed under the provisions of this paragraph are:

1. Air carrier certificates or applications therefor, together

with any requests for amendment, and pleadings responding to

applications when properly filed.

2. All Form 41 reports required to be filed by air carriers with

the Department.

3. Reports of Traffic and Financial Data of all U.S. Air

Carriers issued by the Civil Aeronautics Board (CAB) or the

Department.

4. Airline Traffic Surveys and Passenger Origin-Destination

Surveys, Domestic and International, compiled by the CAB or the

Department and published and/or made available either to the public

or to parties in proceedings.

5. Compilations of data relating to competition in the airline

industry and made available to the public by the CAB or the

Department, such as the 1990 Airline Competition Study.

6. Passenger, mail, express, and freight data submitted to the

CAB or the Department as part of ER-586 Service Segment Data by U.S.

carriers, or similar data submitted to the Department by U.S. air

carriers (T-100) or by foreign air carriers (T-100F) that is not

confidential.

7. All tariffs, including the electronic versions, and

amendments thereof, of all air carriers, on file with the

Department.

8. Service Mail Pay and Subsidy for U.S. Certificated Air

Carriers published by the CAB and any supplemental data and

subsequent issues published by the CAB or the Department.

9. Airport Activity Statistics of Certificated Air Carriers

compiled and published by the Federal Aviation Administration (FAA)

or the Department.

10. Air Traffic Activity Data issued by the FAA.

11. National Plan of Integrated Airport Systems (NPIAS) issued

by the FAA.

12. Airport Facilities Directory, Form 5010, issued by the FAA.

13. The Airman's Information Manual issued by the FAA.

14. ICAO Statistical Summary, Preliminary Issues and Nos. 1

through 14, and Digest of Statistics, Nos. 15 through 71, prepared

by ICAO, Montreal, Canada, with all changes and additions.

15. Monthly, quarterly and annual reports of the Immigration and

Naturalization Service, U.S. Department of Justice.

16. All forms and reports required by the U.S. Postal Service to

be filed by air carriers authorized to transport mail.

17. All orders of the Postmaster General designating schedules

for the transportation of mail.

18. Publications of the Bureau of the Census of the U.S.

Department of Commerce (DOC) relating, but not necessarily limited,

to population, manufacturing, business, statistics, and any

yearbooks, abstracts, or similar publications published by DOC.

19. ABC World Airways Guide and all Official Airline Guides,

including the North American, Worldwide, All-Cargo and quick

reference editions, including electronic versions.

20. Official Guide of the Railways and Russell's Official

National Motor Coach Guide.

21. The Rand McNally Commercial Atlas and Marketing Guide, and

the Rand McNally Road Atlas, United States, Canada, and Mexico.

22. Survey of Buying Power published by Sales Management

Magazine.

(2) Any fact contained in a document belonging to a category

enumerated in paragraph (g)(1) of this section shall be deemed to have

been physically incorporated into and made part of the record in such

proceedings. However, such taking of official notice shall be subject

to the rights granted to any party or intervener to the proceeding

under section 7(d) of the Administrative Procedure Act (5 U.S.C.

557(d)).

(3) The decisions of the Department and its administrative law

judges may officially notice any appropriate matter without regard to

whether or not such items are contained in a document belonging to the

categories enumerated in paragraph (g)(1) of this section. However,

where the decision rests on official notice of a material fact or

facts, it will set forth such items with sufficient particularity to

advise interested persons of the matters that have been noticed.

(h) Receipt of documents after hearing. No document or other

writings shall be accepted for the record after the close of the

hearing except in accordance with an agreement of the parties and the

consent of the administrative law judge or the DOT decisionmaker.

(i) Exceptions. Formal exceptions to the rulings of the

administrative law judge made during the course of the hearing are

unnecessary. For all purposes for which an exception otherwise would be

taken, it is sufficient that a party, at the time the ruling of the

administrative law judge is made or sought, makes known the action he

or she desires the administrative law judge to take or his or her

objection to an action taken, and his or her grounds therefor.

(j) Offers of proof. Any offer of proof made in connection with an

objection taken to any ruling of the administrative law judge rejecting

or excluding proffered oral testimony shall consist of a statement of

the substance of the evidence that counsel contends would be adduced by

such testimony, and if the excluded evidence consists of evidence in

documentary or written form or of reference to documents or records, a

copy of such evidence shall be marked for identification and shall

constitute the offer of proof.

Sec. 302.25 Subpoenas.

(a) An application for a subpoena requiring the attendance of a

witness at a hearing or the production of documentary evidence may be

made without notice by any party to the administrative law judge or, in

the event that an administrative law judge has not been assigned to a

proceeding or is not available, to the DOT decisionmaker or the Chief

Administrative Law Judge, for action.

(b) An application for a subpoena shall be in duplicate except that

if it is made during the course of a hearing, it may be made orally on

the record with the consent of the administrative law judge.

(c) All such applications, whether written or oral, shall contain a

statement or showing of general relevance and reasonable scope of the

evidence sought, and shall be accompanied by two copies of a draft of

the subpoena sought that, in the case of evidence, shall describe the

documentary or tangible evidence to be subpoenaed with as much

particularity as is feasible, or, in the case of a witness, the name of

the witness and a general description of the matters concerning which

the witness will be asked to testify.

(d) The administrative law judge or DOT decisionmaker considering

any application for a subpoena shall issue the subpoena requested if

the application complies with this section. No attempt shall be made to

determine the admissibility of evidence in passing upon an application

for a subpoena, and no detailed or burdensome showing shall be required

as a condition to the issuance of a subpoena.

(e) Where it appears during the course of a proceeding that the

testimony of a witness or documentary evidence is relevant to the

issues in a proceeding, the administrative law judge, Chief

Administrative Law Judge or DOT decisionmaker may issue on his or her

own initiative a subpoena requiring such witness to attend and testify

or requiring the production of such documentary evidence.

(f) Subpoenas issued under this section shall be served upon the

person to whom directed in accordance with Sec. 302.7(b). Any person

upon whom a subpoena is served may within seven (7) days after service

or at any time prior to the return date thereof, whichever is earlier,

file a motion to quash or modify the subpoena with the administrative

law judge or, in the event an administrative law judge has not been

assigned to a proceeding or is not

[[Page 5109]]

available, to the DOT decisionmaker or the Chief Administrative Law

Judge for action. If the person to whom the motion to modify or quash

the subpoena has been addressed or directed, has not acted upon such a

motion by the return date, such date shall be stayed pending his or her

final action thereon. The DOT decisionmaker may at any time review,

upon his or her own initiative, the ruling of an administrative law

judge or the Chief Administrative Law Judge denying a motion to quash a

subpoena. In such cases, the DOT decisionmaker may order that the

return date of a subpoena be stayed pending action thereon.

(g) The provisions of this section are not applicable to the

attendance of DOT employees or the production of documentary evidence

in the custody thereof at a hearing. The attendance of DOT employees

and the production of documentary evidence in their custody are

governed by 49 CFR parts 9 and 7, respectively.

Sec. 302.26 Depositions.

(a) For good cause shown, the DOT decisionmaker or administrative

law judge assigned to a proceeding may order that the testimony of a

witness be taken by deposition and that the witness produce documentary

evidence in connection with such testimony. Ordinarily an order to take

the deposition of a witness will be entered only if:

(1) The person whose deposition is to be taken would be unavailable

at the hearing,

(2) The deposition is deemed necessary to perpetuate the testimony

of the witness, or

(3) The taking of the deposition is necessary to prevent undue and

excessive expense to a party and will not result in an undue burden to

other parties or in undue delay.

(b) Any party desiring to take the deposition of a witness shall

make application therefor in duplicate to the administrative law judge

or, in the event that an administrative law judge has not been assigned

to a proceeding or is not available, to the DOT decisionmaker or Chief

Administrative Law Judge, setting forth the reasons why such deposition

should be taken, the name and residence of the witness, the time and

place proposed for the taking of the deposition, and a general

description of the matters concerning which the witness will be asked

to testify. If good cause be shown, the administrative law judge, the

DOT decisionmaker, or the Chief Administrative Law Judge, as the case

may be, may, in his or her discretion, issue an order authorizing such

deposition and specifying the witness whose deposition is to be taken,

the general scope of the testimony to be taken, the time when, the

place where, the designated officer (authorized to take oaths) before

whom the witness is to testify, and the number of copies of the

deposition to be supplied. Such order shall be served upon all parties

by the person proposing to take the deposition a reasonable period in

advance of the time fixed for taking testimony.

(c) Witnesses whose testimony is taken by deposition shall be sworn

or shall affirm before any questions are put to them. Each question

shall be recorded and the answers shall be taken down in the words of

the witness.

(d) Objections to questions or evidence shall be in short form,

stating the grounds of objection relied upon, but no transcript filed

by the designated officer shall include argument or debate. Objections

to questions or evidence shall be noted by the designated officer upon

the deposition, but he or she shall not have power to decide on the

competency or materiality or relevance of evidence, and he or she shall

record the evidence subject to objection. Objections to questions or

evidence not made before the designated officer shall not be deemed

waived unless the ground of the objection is one that might have been

obviated or removed if presented at that time.

(e) The testimony shall be reduced to writing by the designated

officer, or under his or her direction, after which the deposition

shall be signed by the witness unless the parties by stipulation waive

the signing or the witness is ill or cannot be found or refuses to

sign, and certified in usual form by the designated officer. If the

deposition is not signed by the witness, the designated officer shall

state on the record this fact and the reason therefor. The original

deposition and exhibits shall be forwarded to Department of

Transportation Dockets and shall be filed in the proceedings.

(f) Depositions may also be taken and submitted on written

interrogatories in substantially the same manner as depositions taken

by oral examination. Ordinarily such procedure will be authorized only

if necessary to achieve the purposes of an oral deposition and to serve

the balance of convenience of the parties. The interrogatories shall be

filed in quadruplicate with two copies of the application and a copy of

each shall be served on each party. Within seven (7) days after service

any party may file with the person to whom application was made two

copies of his or her objections, if any, to such interrogatories and

may file such cross-interrogatories as he or she desires to submit.

Cross-interrogatories shall be filed in quadruplicate, and a copy

thereof together with a copy of any objections to interrogatories,

shall be served on each party, who shall have five (5) days thereafter

to file and serve his or her objections, if any, to such cross-

interrogatories. Objections to interrogatories or cross-

interrogatories, shall be served on the DOT decisionmaker or the

administrative law judge considering the application. Objections to

interrogatories shall be made before the order for taking the

deposition issues and if not so made shall be deemed waived. When a

deposition is taken upon written interrogatories, and cross-

interrogatories, no party shall be present or represented, and no

person other than the witness, a reporter, and the designated officer

shall be present at the examination of the witness, which fact shall be

certified by the designated officer, who shall ask the interrogatories

and cross-interrogatories to the witness in their order and reduce the

testimony to writing in the witness's own words. The provisions of

paragraph (e) of this section shall be applicable to depositions taken

in accordance with this paragraph.

(g) All depositions shall conform to the specifications of

Sec. 302.3 except that the filing of three copies thereof shall be

sufficient. Any fees of a witness, the reporter, or the officer

designated to take the deposition shall be paid by the person at whose

instance the deposition is taken.

(h) The fact that a deposition is taken and filed in a proceeding

as provided in this section does not constitute a determination that it

is admissible in evidence or that it may be used in the proceeding.

Only such part or the whole of a deposition as is received in evidence

shall constitute a part of the record in such proceeding upon which a

decision may be based.

Sec. 302.27 Rights of witnesses; attendance fees and mileage.

(a) Any person appearing as a witness in any proceeding governed by

this part, whether in response to a subpoena or by request or

permission of the Department, may be accompanied, represented, and

advised by counsel and may be examined by that counsel after other

questioning.

(b) Any person who submits data or evidence in a proceeding

governed by this part, whether in response to a subpoena or by request

or permission of the Department, may retain, or, on payment of lawfully

prescribed costs, procure, a copy of any document so

[[Page 5110]]

submitted or a copy of any transcript made of such testimony.

(c)(1) No person whose attendance at a hearing or whose deposition

is to be taken shall be obliged to respond to a subpoena unless upon a

service of the subpoena he or she is tendered attendance fees and

mileage by the party at whose instance he or she is called in

accordance with the requirements of paragraph (c)(2) of this section;

Provided, That a witness summoned at the instance of the Department or

one of its employees, or a salaried employee of the United States

summoned to testify as to matters related to his or her public

employment, need not be tendered such fees or mileage at that time.

(2)(i) Witnesses who are not salaried employees of the United

States, or such employees summoned to testify on matters not related to

their public employment, shall be paid the same per diem, subsistence,

and mileage fees paid to witnesses for like service in the courts of

the United States that are in effect at the time of travel; Provided,

That no employee, officer, or attorney of an air carrier who travels

under the free or reduced rate provisions of section 41511 of the

Statute shall be entitled to any fees or mileage; And provided further,

That such fees and mileage shall not be applicable for witnesses

summoned to testify in Alaska, and that, in Alaska, where permitted by

section 41511 of the Statute, the witness may, at his or her option,

accept a pass for travel by air. Such witnesses shall be furnished

appropriate forms and instructions for the submission of claims for

attendance fees, subsistence, and mileage from the Government before

the close of the proceedings that they are required to attend. Only

persons summoned by subpoena shall be entitled to claim attendance

fees, subsistence, or mileage from the Government.

(ii) Witnesses who are salaried employees of the United States and

who are summoned to testify on matters relating to their public

employment, irrespective of at whose instance they are summoned, shall

be paid in accordance with applicable Government regulations.

Sec. 302.28 Transcripts of hearings.

(a) Hearings shall be recorded and transcribed under supervision of

the administrative law judge, by a reporting firm under contract with

the Department. Copies of the transcript that may, at the discretion of

the administrative law judge, be furnished by use of electronic media

in addition to the official copy, shall be supplied to the parties to

the proceeding by said reporting firm, at the contract price for

copies.

(b) The administrative law judge shall determine whether ``ordinary

transcript'' or ``daily transcript'' (as those terms are defined in the

contract) will be necessary and required for the proper conduct of the

proceeding and the Department will pay the reporting firm the full cost

of reporting its proceedings at the contract price for such type of

transcript. If the administrative law judge has determined that

ordinary transcript is adequate, and has notified the parties of such

determination (in the notice of hearings, or otherwise), then any party

may request reconsideration of such determination and that daily

transcript be required. In determining what is necessary and required

for the proper conduct of the proceeding, the administrative law judge

shall consider, among other things:

(1) The nature of the proceeding itself;

(2) The DOT decisionmaker's needs as well as the reasonable needs

of the parties;

(3) The cost to the Department; and

(4) The requirements of a fair hearing.

(c) If the administrative law judge has determined that ordinary

transcript is adequate, or, upon reconsideration, has adhered to such

determination, then any party may request the reporting firm to provide

daily transcript. In that case, pursuant to its contract with the

Department, the reporting firm will be obligated to furnish to the

Department daily transcript upon the agreement by the requesting party

to pay to the reporting firm an amount equal to the difference between

the contract prices for ordinary transcript and daily transcript,

provided that the requesting party makes such agreement with the

reporting firm at least twenty-four (24) hours in advance of the date

for which such transcript is requested.

(d) Any party may obtain from the Office of the Assistant Secretary

for Administration, the name and address of the private reporting

company with which the Department currently has a contract for

transcripts and copies, as well as the contract prices then in effect

for such services.

(e) Copies of transcripts ordered by parties other than the

Department shall be prepared for delivery to the requesting person at

the reporting firm's place of business, within the stated time for the

type of transcript ordered. The requesting party and the reporting firm

may agree upon some other form or means of delivery (mail, messenger,

electronic media, etc.) and the reporting firm may charge for such

special service, provided that such charge shall not exceed the

reasonable cost of such service.

(f) Changes in the official transcript may be made only when they

involve errors affecting substance. A motion to correct a transcript

shall be filed with Department of Transportation Dockets, within ten

(10) days after receipt of the completed transcript by the Department.

If no objections to the motion are filed within ten (10) days

thereafter, the transcript may, upon the approval of the administrative

law judge, be changed to reflect such corrections. If objections are

received, the motion and objections shall be submitted to the official

reporter by the administrative law judge together with a request for a

comparison of the transcript with the reporter's record of the hearing.

After receipt of the report of the official reporter an order shall be

entered by the administrative law judge settling the record and ruling

on the motion.

Sec. 302.29 Argument before the administrative law judge.

(a) The administrative law judge shall give the parties to the

proceeding adequate opportunity during the course of the hearing for

the presentation of arguments in support of or in opposition to

motions, and objections and exceptions to rulings of the administrative

law judge.

(b) When, in the opinion of the administrative law judge, the

volume of the evidence or the importance or complexity of the issues

involved warrants, he or she may, either on his or her own motion or at

the request of a party, permit the presentation of oral argument, and

may impose such time limits on the argument as he or she may determine

appropriate. Such argument shall be transcribed and bound with the

transcript of testimony and will be available to the Department

decisionmaker for consideration in deciding the case.

Sec. 302.30 Briefs to the administrative law judge.

Within such limited time after the close of the reception of

evidence fixed by the administrative law judge, any party may, upon

request and under such conditions as the administrative law judge may

prescribe, file for his or her consideration briefs which may include

proposed findings of fact and conclusions of law that shall contain

exact references to the record and authorities relied upon.

Sec. 302.31 Initial and recommended decisions; certification of the

record.

(a) Action by administrative law judge after hearing. Except where

the DOT decisionmaker directs otherwise, after

[[Page 5111]]

the taking of evidence and the receipt of briefs which may include

proposed findings of fact and conclusions of law, if any, the

administrative law judge shall take the following action:

(1) Initial decision. If the proceeding does not involve foreign

air transportation, the administrative law judge shall render an

``initial decision.'' Such decision shall encompass the administrative

law judge's decision on the merits of the proceeding and on all

ancillary procedural issues remaining for disposition at the close of

the hearing.

(2) Recommended decision. In cases where the action of the

Department involves foreign air transportation and is subject to review

by the President of the United States pursuant to section 41307 of the

Statute, the administrative law judge shall render a ``recommended

decision.'' Such decision shall encompass the administrative law

judge's decision on the merits of the proceeding and on all ancillary

procedural issues remaining for disposition at the close of the

hearing.

(b) Certification to the DOT decisionmaker for decision. At any

time prior to the close of the hearing, the DOT decisionmaker may

direct the administrative law judge to certify any question or the

entire record in the proceeding to the DOT decisionmaker for decision.

In cases where the record is thus certified, the administrative law

judge shall not render a decision but shall make a recommendation to

the DOT decisionmaker as required by section 8(a) of the Administrative

Procedure Act (5 U.S.C. 558(a)) unless advised by the DOT decisionmaker

that he or she intends to issue a tentative decision.

(c) Every initial or recommended decision issued shall state the

names of the persons who are to be served with copies of it, the time

within which exceptions to, or petitions for review of, such decision

may be filed, and the time within which briefs in support of the

exceptions may be filed. In addition, every such decision shall recite

that it is made under delegated authority, and contain notice of the

provisions of paragraph (d) of this section. In the event the

administrative law judge certifies the record to the DOT decisionmaker

without an initial or recommended decision, he or she shall notify the

parties of the time within which to file with the DOT decisionmaker

briefs which may include proposed findings of fact and conclusions of

law.

(d) Unless a petition for discretionary review is filed pursuant to

Sec. 302.32, exceptions are filed pursuant to Sec. 302.217, or the DOT

decisionmaker issues an order to review upon his or her own initiative,

the initial decision shall become effective as the final order of the

Department thirty (30) days after service thereof; in the case of a

recommended decision, that decision shall be transmitted to the

President of the United States under 49 U.S.C. 41307. If a petition for

discretionary review or exceptions are timely filed or action to review

is taken by the DOT decisionmaker upon his or her own initiative, the

effectiveness of the initial decision or the transmission of the

recommended decision is stayed until the further order of the DOT

decisionmaker.

Sec. 302.32 Petitions for discretionary review of initial or

recommended decisions; review proceedings.

(a) Petitions for discretionary review. (1) Review by the DOT

decisionmaker pursuant to this section is not a matter of right but is

at the sole discretion of the DOT decisionmaker. Any party may file and

serve a petition for discretionary review by the DOT decisionmaker of

an initial decision or recommended decision within twenty-one (21) days

after service thereof, unless the DOT decisionmaker sets a different

period for filing.

(2) Petitions for discretionary review shall be filed only upon one

or more of the following grounds:

(i) A finding of a material fact is erroneous;

(ii) A necessary legal conclusion is without governing precedent or

is a departure from or contrary to law, the Department's rules, or

precedent;

(iii) A substantial and important question of law, policy or

discretion is involved; or

(iv) A prejudicial procedural error has occurred.

(3) Each issue shall be separately numbered and plainly and

concisely stated. Petitioners shall not restate the same point in

repetitive discussions of an issue. Each issue shall be supported by

detailed citations of the record when objections are based on the

record, and by statutes, regulations or principal authorities relied

upon. Any matters of fact or law not argued before the administrative

law judge, but that the petitioner proposes to argue on brief to the

DOT decisionmaker, shall be stated.

(4) Petitions for discretionary review shall be self-contained and

shall not incorporate by reference any part of another document. Except

by permission of the DOT decisionmaker, petitions shall not exceed

twenty (20) pages including appendices and other papers physically

attached to the petition.

(5) Requests for oral argument on petitions for discretionary

review will not be entertained by the DOT decisionmaker.

(b) Answers. Within fifteen (15) days after service of a petition

for discretionary review, any party may file and serve an answer of not

more than fifteen (15) pages in support of or in opposition to the

petition. If any party desires to answer more than one petition for

discretionary review in the same proceeding, he or she shall do so in a

single document of not more than twenty (20) pages.

(c) Orders declining review. The DOT decisionmaker's orders

declining to exercise the discretionary right of review will specify

the date upon which the administrative law judge's decision shall

become effective as the final decision of the Department. A petition

for reconsideration of a Department order declining review will be

entertained only when the order exercises, in part, the DOT

decisionmaker's discretionary right of review, and such petition shall

be limited to the single question of whether any issue designated for

review and any issue not so designated are so inseparably interrelated

that the former cannot be reviewed independently or that the latter

cannot be made effective before the final decision of the Department in

the review proceeding.

(d) Review proceedings. (1) The DOT decisionmaker may take review

of an initial or recommended decision upon petition or on his or her

own initiative or both. The DOT decisionmaker will issue a final order

upon such review without further proceedings on any or all the issues

where he or she finds that matters raised do not warrant further

proceedings.

(2) Where the DOT decisionmaker desires further proceedings, he or

she will issue an order for review that will:

(i) Specify the issues to which review will be limited. Only those

issues specified in the order shall be argued on brief to the DOT

decisionmaker, pursuant to Sec. 302.35, and considered by the DOT

decisionmaker;

(ii) Specify the portions of the administrative law judge's

decision, if any, that are to be stayed as well as the effective date

of the remaining portions thereof; and

(iii) Designate the parties to the review proceeding.

Sec. 302.33 Tentative decision of the DOT decisionmaker.

(a) Except as provided in paragraph (b) of this section, whenever

the

[[Page 5112]]

administrative law judge certifies the record in a proceeding directly

to the DOT decisionmaker without issuing an initial or recommended

decision in the matter, the DOT decisionmaker shall, after

consideration of any briefs submitted by the parties, prepare a

tentative decision and serve it upon the parties. Every tentative

decision of the DOT decisionmaker shall state the names of the persons

who are to receive copies of it, the time within which exceptions to

such decision and briefs, if any, in support of or in opposition to the

exceptions may be filed, and the date when such decision will become

final in the absence of exceptions thereto. If no exceptions are filed

to the tentative decision of the DOT decisionmaker within the period

fixed, it shall become final at the expiration of such period unless

the DOT decisionmaker orders otherwise.

(b) The DOT decisionmaker may, in his or her discretion, omit a

tentative decision in proceedings under subpart B. The DOT

decisionmaker may also, in rulemaking proceedings, omit a tentative

decision in any case in which he or she finds upon the record that due

and timely execution of the Department's functions imperatively and

unavoidably so requires. Final decisions of the DOT decisionmaker are

subject to review as provided in Sec. 302.18.

Sec. 302.34 Exceptions to tentative decisions of the DOT

decisionmaker.

(a) Time for filing. Within ten (10) days after service of any

tentative decision of the DOT decisionmaker, any party to a proceeding

may file exceptions to such decision with the DOT decisionmaker.

(b) Form and contents of exceptions. Each exception shall be

separately numbered and shall be stated as a separate point, and

appellants shall not restate the same point in several exceptions. Each

exception shall state, sufficiently identify, and be limited to, an

ultimate conclusion in the decision to which exception is taken (such

as, selection of one carrier rather than another to serve any point or

points; points included in or excluded from a new route; imposition or

failure to impose a given restriction; determination of a rate at a

given amount rather than another). No specific exception shall be taken

with respect to underlying findings or statements, but exceptions to an

ultimate conclusion shall be deemed to include exceptions to all

underlying findings and statements pertaining thereto; Provided,

however, That exceptions shall specify any matters of law, fact, or

policy that were not argued before the administrative law judge but

will be set forth for the first time on brief to the DOT decisionmaker.

(c) Effect of failure to file timely and adequate exceptions. No

objection may be made on brief or at a later time to an ultimate

conclusion that is not expressly made the subject of an exception in

compliance with the provisions of this section; Provided, however, That

any party may file a brief in support of the decision and in opposition

to the exceptions filed by any other party.

Sec. 302.35 Briefs to the DOT decisionmaker.

(a) Time for filing. Within such period after the date of service

of any tentative decision by the DOT decisionmaker as may be fixed

therein, any party may file a brief addressed to the DOT decisionmaker

in support of his or her exceptions to such decision or in opposition

to the exceptions filed by any other party. Briefs to the DOT

decisionmaker on initial or recommended decisions of administrative law

judges shall be filed only in those cases where the DOT decisionmaker

grants discretionary review and orders further proceedings, pursuant to

Sec. 302.32(d)(2), and only upon those issues specified in the order.

Such briefs shall be filed within thirty (30) days after date of

service of the order granting discretionary review unless otherwise

specified in the order. In cases where, because of the limited number

of parties and the nature of the issues, the filing of opening,

answering, and reply briefs will not unduly delay the proceeding and

will assist in its proper disposition, the DOT decisionmaker may direct

that the parties file briefs at different times rather than at the same

time.

(b) Effect of failure to restate objections in briefs. In

determining the merits of an appeal, the DOT decisionmaker will not

consider the exceptions or the petition for discretionary review but

will consider only the brief. Each objection contained in the

exceptions or each issue specified in the DOT decisionmaker's order

exercising discretionary review must be restated and supported by a

statement and adequate discussion of all matters relied upon, in a

brief filed pursuant to and in compliance with the requirements of this

section.

(c) Formal specifications of briefs--(1) Contents. Each brief shall

discuss every point of law, fact, or precedent that the party

submitting it is entitled to raise and that it wishes the DOT

decisionmaker to consider. Each brief shall include a summary of the

argument not to exceed five (5) pages. Support and justification for

every point raised shall include itemized references to the pages of

the transcript of hearing, exhibit or other matter of record, and

citations of the statutes, regulations, or principal authorities relied

upon. If a brief or any point discussed in the brief is not in

substantial conformity with the requirement for such support and

justification, no motion to strike or dismiss such document shall be

made but the DOT decisionmaker may disregard the points involved.

Copies of briefs may be furnished by use of electronic media in a

format acceptable to the Department and the parties.

(2) Incorporation by reference. Briefs to the DOT decisionmaker

shall be completely self-contained and shall not incorporate by

reference any portion of any other brief or pleading; Provided,

however, That instead of submitting a brief to the DOT decisionmaker a

party may adopt by reference specifically identified pages or the whole

of his or her prior brief to the administrative law judge if the latter

complies with all requirements of this section. In such cases, the

party shall file with Department of Transportation Dockets a letter

exercising this privilege and serve all parties in the same manner as a

brief to the DOT decisionmaker.

(3) Length. Except by permission or direction of the DOT

decisionmaker, briefs shall not exceed fifty (50) pages including pages

contained in any appendix, table, chart, or other document physically

attached to the brief, but excluding maps and the summary of the

argument. In this case ``map'' means only those pictorial

representations of routes, flight paths, mileage, and similar ancillary

data that are superimposed on geographic drawings and contain only such

text as is needed to explain the pictorial representation.

Sec. 302.36 Oral argument before the DOT decisionmaker.

(a) If any party desires to argue a case orally before the DOT

decisionmaker, he or she shall request leave to make such argument in

his or her exceptions or brief. Such request shall be filed no later

than the date when briefs before the DOT decisionmaker are due in the

proceeding. The DOT decisionmaker will rule on such request, and, if

oral argument is to be allowed, all parties to the proceeding will be

advised of the date and hour set for such argument and the amount of

time allowed to each party. Requests for oral argument on petitions for

discretionary review will not be entertained.

(b) Pamphlets, charts, and other written data may be offered to the

DOT

[[Page 5113]]

decisionmaker at oral argument only in accordance with the following

rules: All such material shall be limited to facts in the record of the

case being argued and shall be served on all parties to the proceeding

with four (4) copies transmitted to Department of Transportation

Dockets at least five (5) calendar days in advance of the argument.

Sec. 302.37 Waiver of procedural steps after hearing.

The parties to any proceeding may agree to waive any one or more of

the procedural steps provided in Secs. 302.29 through 302.36.

Sec. 302.38 Final decision of the DOT decisionmaker.

When a case stands submitted to the DOT decisionmaker for final

decision on the merits, he or she will dispose of the issues presented

by entering an appropriate order that will include a statement of the

reasons for his or her findings and conclusions. Such orders shall be

deemed ``final orders'' within the purview of Sec. 302.14(a), in the

manner provided by Sec. 302.18.

Subpart B--Rules Applicable to U.S. Air Carrier Certificate and

Foreign Air Carrier Permit Licensing Proceedings

Sec. 302.201 Applicability.

(a) This subpart sets forth the specific rules applicable to

proceedings on:

(1) U.S. air carrier certificates of public convenience and

necessity and U.S. all-cargo air service certificates under Chapter 411

of the Statute, including renewals, amendments, modifications,

suspensions and transfers of such certificates.

(2) Foreign air carrier permits under Chapter 413 of the Statute,

including renewals, amendments, modifications, suspensions, and

transfers of such permits.

(b) Except as modified by this subpart, the provisions of subpart A

of this part apply.

Sec. 302.202 Contents of applications.

(a) Certificate applications filed under this subpart shall contain

the information required by part 201 of this chapter and, where

applicable, part 204 of this chapter, and foreign air carrier permit

applications shall contain the information required by part 211 of this

chapter, along with any other information that the applicant desires

the Department to notice officially.

(b) Applications shall include a notice on the cover page stating

that any person may support or oppose the application by filing an

answer and serving a copy of the answer on all persons served with the

application. The notice shall also state the due date for answers.

Amendments to applications will be considered new applications for the

purpose of calculating the time limitations of this subpart.

(c) Applications shall include a list of the names and addresses of

all persons who have been served in accordance with Sec. 302.203.

(d) Where required, each application shall be accompanied by an

Environmental Evaluation in conformity with part 313 of this chapter.

Sec. 302.203 Service of documents.

(a) General requirements. (1) Applicants shall serve on the persons

listed in paragraph (b) of this section a notice that an application

has been filed, and upon request shall promptly provide those persons

with copies of the application and supporting documents. The notice

must clearly state the authority sought and the due date for other

pleadings.

(2) Applicants shall serve a complete copy of the application on

the Manager of the FAA Flight Standards District Office responsible for

processing the application for any FAA authority needed to conduct the

proposed operations.

(3) After an order under Sec. 302.210 has been issued, parties need

only serve documents on those persons listed in the service list

accompanying the order.

(4) In the case of an application sought to be consolidated, the

applicant shall serve the notice required in paragraph (a)(1) of this

section on all persons served by the original applicant.

(b) Persons to be served--(1) U.S. air carriers. (i) In certificate

proceedings, except for those proceedings that involve charter-only

authority under section 41102(a)(3) of the Statute:

(A) Applicants for certificates to engage in interstate air

transportation and other persons who file a pleading in the docket

shall serve:

(1) The airport authority of each airport that the applicant

initially proposes to serve, and

(2) Any other person who has filed a pleading in the docket.

(B) Applicants for certificates to engage in foreign air

transportation and other persons who file a pleading in the docket

shall serve:

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

publish schedules in the Official Airline Guide or in the Air Cargo

Guide for the country-pair market(s) specified in the application,

(2) The airport authority of each U.S. airport that the applicant

initially proposes to serve, and

(3) Any other person who has filed a pleading in the docket.

(ii) In certificate proceedings involving charter-only authority

under 41102(a)(3) of the Statute, applicants and other persons who file

a pleading in the docket shall serve any other person who has filed a

pleading in the docket.

(2) Foreign air carriers. (i) In permit proceedings, except for

those proceedings involving charter-only authority, applicants and

other persons who have filed a pleading in the docket shall serve:

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

publish schedules in the Official Airline Guide or the Air Cargo Guide

for the country-pair market(s) specified in the application,

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

(C) The airport authority of each U.S. airport that the applicant

initially proposes to serve, and

(D) Any other person who has filed a pleading in the docket.

(ii) In foreign air carrier permit proceedings for charter-only

authority, applicants and other persons who file a pleading in the

docket shall serve the U.S. Department of State and any other person

who has filed a pleading in the docket.

(c) Additional service. The Department may, at its discretion,

order additional service upon such persons as the facts of the

situation warrant. Where only notices are required, parties are

encouraged to serve copies of their actual pleadings where feasible. In

any proceeding directly involving air transportation to the Federated

States of Micronesia, the Marshall Islands or Palau, the Department and

any party or participant in the proceeding shall serve all documents on

the President and the designated authorities of the government(s)

involved. In any proceeding that affects a point in Alaska, the person

filing shall send an additional copy to: U.S. Department of

Transportation, Alaska Field Office, 801 B Street, Suite 506,

Anchorage, Alaska 99501-3657.

Sec. 302.204 Responsive documents.

(a) Any person may file an answer in support of or in opposition to

any application. Answers shall set forth the basis for the position

taken, including any economic data or other facts relied on. Except as

otherwise provided in Sec. 302.212(d), answers shall be filed within

twenty-one (21) days of the original or amended application and shall

be served in accordance with Sec. 302.203.

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(b) Replies to answers shall be filed within fourteen (14) days

after the filing of the answer.

(c) Persons having common interests shall, to the extent

practicable, arrange for the joint preparation of pleadings.

Sec. 302.205 Economic data and other facts.

Whenever economic data and other facts are provided in any

pleading, such information shall include enough detail so that final

results can be obtained without further clarification. Sources, bases,

and methodology used in constructing exhibits, including any estimates

or judgments, shall be provided.

Sec. 302.206 Verification.

The following certification shall be included with any pleading

filed under this subpart: ``Pursuant to Title 18 United States Code

Section 1001, I [the individual signing the pleading, who shall be

someone who will appear as a witness to substantiate the facts asserted

if an oral hearing becomes necessary] in my individual capacity and as

the authorized representative of the submitter, have not in any manner

knowingly or willfully falsified, concealed, or covered up any material

fact or made any false, fictitious, or fraudulent statement or

knowingly used any documents that contain such statements in connection

with the preparation, filing, or prosecution of this pleading. I

understand that a submitter who violates the provisions of 18 U.S.C.

1001 shall be fined not more than $10,000 or imprisoned not more than

five years, or both.''

Disposition of Applications

Sec. 302.207 Cases to be decided on written submissions.

(a) Applications under this subpart will be decided on the basis of

written submissions unless the DOT decisionmaker, on petition as

provided in Sec. 302.208 or on his or her own initiative, determines

that an oral presentation or an administrative law judge's decision is

required because:

(1) Use of written procedures will prejudice a party;

(2) Material issues of decisional fact cannot adequately be

resolved without oral evidentiary hearing procedures; or

(3) Assignment of an application for oral evidentiary hearing

procedures or an initial or recommended decision by an administrative

law judge is otherwise required by the public interest.

(b) The standards employed in deciding cases under Sec. 302.210(a)

(1) or (5) shall be the same as the standards applied in cases decided

under Sec. 302.210(a)(4). These are the standards set forth in the

Statute as interpreted and expanded upon under that Statute.

Sec. 302.208 Petitions for oral presentation or judge's decision.

(a) Any person may file a petition for oral evidentiary hearing,

oral argument, an initial or recommended decision, or any combination

of these. Petitions shall demonstrate that one or more of the criteria

set forth in Sec. 302.207 are applicable to the issues for which an

oral presentation or judge's decision is requested. Such petitions

shall be supported by a detailed explanation of the following:

(1) Why the evidence or argument to be presented cannot be

submitted in the form of written evidence or briefs;

(2) Which issues should be examined by an administrative law judge

and why such issues should not be presented directly to the DOT

decisionmaker for decision;

(3) An estimate of the time required for the oral presentation and

the number of witnesses whom the petitioner would present; and

(4) If cross-examination of any witness is desired, the name of the

witness, if known, the subject matter of the desired cross-examination

or the title or number of the exhibit to be cross-examined, what the

petitioner expects to establish by the cross-examination, and an

estimate of the time needed for it.

(b) Petitions for an oral hearing, oral argument, or an

administrative law judge's decision shall be filed no later than the

due date for answers in proceedings governed by Secs. 302.211, 302.212

and 302.213.

(c) Where a stipulation of disputed facts would eliminate the need

for an oral presentation or an administrative law judge's decision,

parties shall include in their petitions an offer to withdraw the

request should the stipulation be made.

Sec. 302.209 Procedures for deferral of applications.

Within twenty-eight (28) days after the filing of an application

under this subpart, the DOT decisionmaker may defer further processing

of the application until all of the information necessary to process

that application is submitted. The time periods contained in this

subpart with respect to the disposition of the application shall not

begin to run until the application is complete. In addition, the DOT

decisionmaker may defer action on a foreign air carrier permit

application for foreign policy reasons.

Sec. 302.210 Disposition of applications; orders establishing further

procedures.

(a) General requirements. The DOT decisionmaker will take one of

the following actions with respect to all or any portion of each

application:

(1) Issue an Order to Show Cause why the application should not be

granted, denied or dismissed, in whole or in part.

(2) Issue a Final Order granting the application if the Department

determines that there are no material issues of fact that warrant

further procedures for their resolution.

(3) Issue a Final Order dismissing or rejecting the application for

lack of prosecution or if the application does not comply with this

subpart or is otherwise materially deficient.

(4) Issue an order setting the application for oral evidentiary

hearing. The order will establish the scope of the issues to be

considered and the procedures to be employed, and will indicate whether

one or more attorneys from the Office of the Assistant General Counsel

for Aviation Enforcement and Proceedings will participate as a party.

All of the procedures set forth in Secs. 302.214 through 302.218 will

apply unless the DOT decisionmaker decides otherwise.

(5) Begin to make a determination with respect to the application

under simplified procedures without oral evidentiary hearing. In this

event, the DOT decisionmaker may indicate which, if any, of the

procedural steps set forth in Sec. 302.215 through Sec. 302.219 will be

employed. The DOT decisionmaker may also indicate that other non-oral

evidentiary hearing procedures will be employed.

(b) Additional evidence. An order establishing further procedures

under paragraph (a) (1), (4) or (5) of this section may provide for the

filing of additional evidence.

(c) Petitions for reconsideration. Petitions for reconsideration of

an order issued under this section will not be entertained except to

the extent that the order dismissed or rejected all or part of an

application. If a petition for reconsideration results in the

reinstatement of all or part of an application, the deadline for final

Department decision established in Sec. 302.220 will be calculated from

the date of the order reinstating the application.

Sec. 302.211 Procedures in certificate cases involving initial or

continuing fitness.

(a) Applicability. This section applies to cases involving

certificate authority under sections 41102 and 41103 of the Statute,

including applications for new

[[Page 5115]]

authority, renewals, amendments, modifications, suspensions, and

transfers of such certificates, where the issues involve a

determination of the applicant's fitness to operate. Where such

applications propose the operation of scheduled service in limited

entry international markets, the provisions of Sec. 302.212 also apply.

(b) Order establishing further procedures. Within 90 days after a

complete application is filed, the DOT decisionmaker will take action

as provided in Sec. 302.210.

Sec. 302.212 Procedures in certificate cases involving international

routes.

(a) Applicability. This section applies to cases involving

certificates under section 41102 of the Statute that involve

international routes, including applications to obtain, renew, amend,

transfer, or remove restrictions in such certificates.

(b) Answers to applications. Answers shall be filed within twenty-

one (21) days after the filing of the original application.

(c) Conforming applications or motions to modify scope. Any person

may file an application for the same authority as sought in an

application to obtain, renew, amend, or transfer a certificate filed

under paragraph (a) of this section. Requests to modify the issues to

be decided and to consolidate applications filed in other dockets shall

be filed as a ``motion to modify scope.'' Motions and applications

under this section shall include economic data, other facts, and any

argument in support of the person's position and must be filed within

twenty-one (21) days after the original application is filed. Later-

filed competing applications shall conform to the base and forecast

years used by the original applicant and need not contain traffic and

financial data for markets for which data have already been submitted

by another person.

(d) Answers to conforming applications or motions to modify scope.

Answers to conforming applications and motions to modify scope filed in

accordance with paragraph (b) of this section shall be filed within

fourteen (14) days after the filing of the conforming application or

motion. Answers may argue that an application should be dismissed.

Answers may also seek to consolidate an application filed in another

docket if that application conforms to the scope of the proceeding

proposed in the motion to modify scope and includes the information

prescribed in Sec. 302.202. Answers and applications shall not,

however, propose the consideration of additional markets.

(e) Order establishing further procedures. Within 90 days after a

complete application is filed, the DOT decisionmaker will issue an

order as provided in Sec. 302.210.

Sec. 302.213 Procedures in foreign air carrier permit cases.

(a) Applicability. This section applies to cases involving foreign

air carrier permits under section 41302, including applications for new

authority, renewals, amendments, modifications, suspensions, and

transfers of such permits.

(b) Executive departments. In addition to the standards set forth

in Sec. 302.207(b), the views of the Department of State and the

Federal Aviation Administration's evaluation of the applicant's

operational fitness shall be relied upon in determining the appropriate

action on applications filed under this section.

(c) Order establishing further procedures. As soon as possible

after the date that answers are due and all information needed to reach

a decision is filed, the DOT decisionmaker will issue an order as

provided in Sec. 302.210.

Sec. 302.214 Oral evidentiary hearing.

If the Department determines under Sec. 302.210(a)(4) that an oral

evidentiary hearing should be held, the application or applications

will be set for oral hearing before an administrative law judge. The

issues will be those set forth in the order establishing further

procedures. The procedures in Secs. 302.17 through 302.38 governing the

conduct of oral evidentiary hearings will apply.

Sec. 302.215 Briefs to the administrative law judge.

Briefs to the administrative law judge shall be filed within the

following periods, as applicable:

(a) Fourteen (14) days after the close of the oral evidentiary

hearing, unless the administrative law judge determines that, under the

circumstances of the case, briefs are not necessary or that the parties

will require more time to prepare briefs; or

(b) Fourteen (14) days after the filing of additional evidence

called for in the order establishing further procedures if no oral

evidentiary hearing is called for, unless the Department determines

that some other period should be allowed.

Sec. 302.216 Administrative law judge's initial or recommended

decision.

(a) In a case that has been set for oral evidentiary hearing under

Sec. 302.210(a)(4), the administrative law judge shall adopt and serve

an initial or recommended decision within one hundred thirty-six (136)

days after the issuance of the order establishing further procedures

unless:

(1) The DOT decisionmaker, having found extraordinary

circumstances, has by order delayed the initial or recommended decision

by a period of not more than thirty (30) days; or

(2) An applicant has failed to meet the procedural schedule adopted

by the judge or the DOT decisionmaker. In this case, the administrative

law judge may, by notice, extend the due date for the issuance of an

initial or recommended decision for a period not to exceed the period

of delay caused by the applicant.

(b) In a case in which some of the issues have not been set for

oral hearing under Sec. 302.210(a)(4), the administrative law judge

shall adopt and serve an initial or recommended decision within the

time established by the DOT decisionmaker in the order establishing

further procedures, except that that due date may be extended in

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

(c) The initial or recommended decision shall be issued by the

administrative law judge fourteen (14) days after it is adopted and

served. Unless exceptions are filed under Sec. 302.217 or the DOT

decisionmaker issues an order to review on his or her own initiative,

an initial decision shall become effective as the final order of the

Department the day it is issued. Where exceptions are timely filed or

the DOT decisionmaker takes action to review on his or her own

initiative, the effectiveness of the initial decision is stayed until

further order of the DOT decisionmaker.

(d) In all other respects, the provisions of Sec. 302.31 shall

apply.

Sec. 302.217 Exceptions to administrative law judge's initial or

recommended decision.

(a) Within seven (7) days after service of any initial or

recommended decision of an administrative law judge, any party may file

exceptions to the decision with the Department.

(b) If timely and adequate exceptions are filed, review of the

initial or recommended decision is automatic.

(c) In all other respects, the provisions of Sec. 302.34 shall

apply.

Sec. 302.218 Briefs to the DOT decisionmaker.

(a) In a case in which an initial or recommended decision has been

adopted and served and exceptions have been filed, any party may file a

brief in support of or in opposition to any exceptions. Such briefs

shall be filed within fourteen (14) days after service of the initial

or recommended decision.

(b) In a case in which no exceptions have been filed, briefs shall

not be filed

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unless the DOT decisionmaker has taken review of the initial or

recommended decision on his or her own initiative and has specifically

provided for the filing of such briefs.

(c) In all other respect, the provisions of Sec. 302.35 shall

apply.

Sec. 302.219 Oral argument before the DOT decisionmaker.

If the order establishing further procedures provides for an oral

argument, or if the DOT decisionmaker otherwise decides to hear oral

argument, all parties will be advised of the date and hour set for that

argument and the amount of time allowed each party. The provisions of

Sec. 302.36(b) shall also apply.

Sec. 302.220 Final decision of the Department.

In addition to the provisions of Sec. 302.38, the following

provisions shall apply:

(a) In the case of a

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