# Rules of Practice in Proceedings > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A97-2070 ## Record - **Collection:** Federal Register - **Document type:** Proposed Rule - **Published:** February 3, 1997 - **Citation:** 62 FR 5094 ## Text 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agencies to conduct a page- by-page review of all of their regulations and to ``eliminate or revise those that are outdated or otherwise in need of reform.''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 We have thus far identified a number of regulations that were outdated or contained references that were obsolete.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 consider [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A97-2070. Public record. Not legal advice.