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che Board. A petition for reconsideration of a Board order declining review will be entertained only when the order exercises, in part, the Board's right of review, and such petition shall be limited to the single question of whether any issue designated for review and any issue not so designated are so inseparably interrelated that the former cannot be reviewed independently or that the latter cannot be made effective before the final decision of the Board in the review proceeding.
(d) Review proceedings. (1) The Board will exercise its right of review upon petition for review or on its own initiative when two or more Board members vote in favor of review. The Board will issue a final order upon such review without further proceedings on any or all the issues where it finds that matters raised do not warrant further proceedings.
(2) Where the Board desires further proceedings, the Board will issue an order for review which will:
(1) Specify the issues to which review will be limited. Such issues shall constitute one or more of the issues raised in & petition for discretionary review and/or matters which the Board desires to review on its own initiative. Only those issues specified in the order shall be argued on brief to the Board, pursuant to $ 302.31, and considered by the Board.
(ii) Specify the portions of the examiner's decision, if any, which are to be stayed as well as the effective date of the remaining portions thereof.
(iii) Designate the parties to the review proceeding. § 302.29 Tentative decision the
Board. (a) Except as provided in paragraph (b) of this section, whenever the examiner certifies the record in a proceeding directly to the Board without issuing an initial or recommended decision in the matter, the Board shall, after consideration of any proposed findings and conclusions submitted by the parties, prepare a tentative decision and serve it upon the parties. Every tentative decision of the Board shall state the names of the persons who are to receive copies of it, the time within which exceptions to such decision may be filed, the time within which briefs in support of the exceptions may be filed, and the date when such decision will become final in
the absence of exceptions thereto. I no exceptions are filed to the tentative decision of the Board within the period fixed (which in no event shall be less than 10 days), it shall become final at the expiration of such period unless the Board orders otherwise.
(b) Notwithstanding the provisions of paragraph (a) of this section, in rule making proceedings or proceedings determining applications for initial licenses, the Board may omit a tentative decision in any case in which it finds upon the record that due and timely execution of its functions imperatively and unavoidably so requires $ 302.30 Exceptions to recommended
decisions of examiners or tentative
decisions of the Board. (a) Time for filing. Within ten (10) days after service of any recommended decision of an examiner or tentative decision of the Board, any party to a proceeding may file exceptions to such decision with the Board.
(b) Form and contents of exceptions. Each exception shall be separately numbered and shall be stated as a separate point, and appellants shall not restate the same point in several repetitive exceptions. Each exception shall state, sufficiently identify, and be limited to, an ultimate conclusion in the decision to which exception is taken (such as, selection of one carrier rather than another to serve any point or points; points in. cluded in or excluded from a new route; imposition or failure to impose a given restriction; determination of a rate at a given amount rather than another). No specific exception shall be taken with respect to underlying findings or statements, but exceptions to an ultimate conclusion shall be deemed to include exceptions to all underlying findings and statements pertaining thereto. Provided, however, That exceptions shall specify any matters of law, fact or policy which were not argued before the examiner but will be set forth for the first time on brief to the Board.
(c) Effect of failure to file timely and adequate exceptions. No objection may be made on brief or at a later time to an ultimate conclusion which is not expressly made the subject of an exception in compliance with the provisions of this section. Provided, however, That any party may file a brief in support of the
decision and in opposition to the exceptions filed by any other party. $ 302.31 Briefs before the Board.
(a) Time for filing. Within such period after the date of service of any recommended decision of an examiner or tentative decision by the Board as may be fixed therein, any party may file & brief addressed to the Board, in support of his exceptions to such decision or in opposition to the exceptions filed by any other party. Briefs to the Board on initial decisions of examiners shall be filed only in those cases where the Board grants discretionary review and orders further proceedings, pursuant to § 302.28(d) (2), and only upon those issues specified in the order. Such briefs shall be filed within 30 days after date of the order granting discretionary review. In cases where, because of the limited number of parties and the nature of the issues, the filing of opening, answering and reply briefs will not unduly delay the proceeding and will assist in its proper disposition, the Board or the examiner (where the examiner's decision was not made under delegated authority) may direct that the parties file briefs at different times rather than at the same time. . (b) Effect of failure to restate objections in briefs. In determining the merits of an appeal, the Board will not consider the exceptions or the petition for discretionary review but will consider only the brief. Each objection contained in the exceptions or each issue specified in the Board's order exercising discretionary review must be restated and supported by a statement and adequate discussion of all matters relied upon, in a brief filed pursuant to and in compliance with the requirements of this section.
(c) Formal specifications of briefs(1) Contents. Each brief shall discuss every point of law and fact which the party submitting it is entitled to raise pursuant to this part and any pertinent order of the Board, and which he desires the Board to consider. Support and justification for every such point shall include itemized references to the pages of the transcript of hearing, exhibit or other matter of record, and citations of the statutes, regulations or principal authorities relied upon. If a brief or any point discussed therein is not in substantial conformity with the requirement for such support and justification, no motion to strike or dismiss such docu
ment shall be made but the Board may disregard the points involved.
(2) Incorporation by reference. Briefs to the Board shall be completely self-contained and shall not incorporate by reference any portion of any other brief or pleading: Provided, however, That in lieu of submitting a brief to the Board a party may adopt by reference specifically identified pages or the whole of his prior brief to the examiner. In such cases, the party may file with the Docket Section a letter exercising this privilege and serve all parties in the same manner as a brief to the Board.
(3) Length and index. Briefs shall comply with the forma specifications set forth in § 302.3(b). Except by permission or direction of the Board or the Chief Examiner, briefs shall not exceed 50 pages including those pages contained in any appendix, table, chart, or other document physically attached to the brief, except maps. In this case "map" means only those pictorial representations of routes, flight paths, mileage, and similar ancillary data that are superimposed on geographic drawings and contain only such text as is needed to explain the pictorial representation. Any brief that exceeds 10 pages shall contain a subject index of its contents, including page references. & 302.32 Oral argument before the
Board. (a) If any party desires to argue a case orally before the Board, he shall request leave to make such argument in his exceptions or brief. Such request shall bc fled no later than the date when briefs before the Board are due in the proceeding. The Board will rule on such request, and if oral argument is to be allowed, all parties to the proceeding will be advised of the date and hour set for sch argument and the amount of time allowed to each party. Requests for oral argument on petitions for discretionary review will not be entertained.
(b) Pamphlets, charts, and other written data may be presented to the Board at oral argument only in accordance with the following rules: All such material shall be limited to facts in the record of the case being argued. All such material shall be served on all parties to the proceeding and eight copies transmitted to the Docket Section of the Board at least five (5) calendar days in advance of the argument. As used herein "material" Includes, but is not
limited to, maps, charts included in twenty (20) days after service thereof, briefs, and exhibits which are enlarged and, in the case of an interlocutory and used for demonstration purposes at order, within ten (10) days after service. the argument, but does not include the However, neither the filing nor the enlargements of such exhibits.
granting of such a petition shall operate 8 302.33 Waiver of procedural steps
as a stay of such final or interlocutory after hearing.
order unless specifically so ordered by
the Board. Within ten (10) days after The parties to any proceeding may a petition for reconsideration, rehearing, agree to waive any one or more of the
or reargument is filed, any party to the following procedural steps provided in proceeding may file an answer in support $$ 302.25 through 302.32; Oral argument of or in opposition to the petition. Mobefore the examiner, the filing of pro tions for extension of time to file & petiposed findings and conclusions for the
tion or answer, and for leave to file a examiner or for the Board, & recom petition or answer after the time for the mended decision of the examiner, a ten filing thereof has expired, will not be tative decision of the Board, exceptions granted by the Board except on a showto a recommended decision of the exam ing of unusual and exceptional circuminer or a tentative decision of the Board, stances, constituting good cause for a petition for discretionary review of an movant's inability to meet the estabinitial decision, the filing of briefs with lished procedural dates. the Board, or oral argument before the (b) Contents of petition. A petition Board.
for reconsideration, rehearing, or re8 302.35 Shortened procedure.
argument shall state, briefly and specifi.
cally, the matters of record alleged to In cases where a hearing is not re have been erroneously decided, the quired by law, $3 302.23 through 302.33, ground relied upon, and the relief sought. relating to prehearing, hearing, and I the petition is based, in whole or in post-hearing procedures, shall not be part, on allegations as to the conseapplicable except to the extent that the quences which would result from the Board shall determine that the applica Board's order, the basis of such allegation of some or all of such rules in the tions shall be set forth. If the petition particular case will be conducive to the is based, in whole or in part, on new matproper dispatch of its business and to ter, such new matter shall be set forth, the ends of justice.
accompanied by a statement to the effect
that petitioner, with due diligence, could § 302.36 Final decision of the Board.
not have known or discovered such new When a case stands submitted to the matter prior to the date the case was Board for final decision on the merits, submitted for decision. Unless otherthe Board will dispose of the issues pre wise directed by the Board upon a showsented by entering an appropriate order ing of unusual or exceptional circumwhich will include a statement of the stances, petitions for reconsideration, reasons for its findings and conclusions. rehearing or reargument or answers Such orders shall be deemed "final or thereto which exceed twenty-five (25) ders" within the purview of $ 302.37(a). pages (including appendices) in length
shall not be accepted for filing by the $ 302.37 Petitions for reconsideration.
Docket Section. (a) Board orders subject to reconsid (c) Successive petitions. A successive eration; time for filing. Unless an order petition for rehearing, reargument, or or a rule of the Board specifically pro reconsideration filed by the same party vides otherwise, any party to a proceed or parties, and upon substantially the ing may file a petition for reconsidera same ground as a former petition which tion, rehearing or reargument of (1) a has been considered or denied by the final order issued by the Board or (2) Board, will not be entertained. an interlocutory order issued by the Board which institutes a proceeding or
§ 302.38 Petitions for rule making. defines the scope and issues of a proceed
(a) Scope. Any interested person ing or suspends a provision of a tariff on may petition the Board for the issuance, Ale with the Board. Unless the time is amendment, modification, or repeal of shortened or enlarged by the Board, any regulation. For purposes of this petitions for reconsideration shall be section, such proposed action will be filed, in the case of a final order, within termed rule making. Any interested
person may file an answer to the petition at any time prior to the institution of a proceeding thereon or prior to denial thereof, as the case may be. Such answer shall be served upon the petitioner. The right to file an answer is purely permissive, and failure to file an answer shall not prejudice any interested person in any rule making proceeding which may be instituted on the petition. The procedures set forth in this section shall not apply to recommendations for rule making submitted by other agencies of the Government.
(b) Form and contents. Petitions for rule making, and answers thereto, shall conform to the requirements of $$ 302.3 and 302.4; and a petition or answer which does not conform to such requirement will not be considered by the Board.
(c) Procedure. Petitions for rule making will be given a docket number and will, together with any answers thereto, become matters of public record upon filing. No public hearing, oral argument, or other form of proceedings will be held directly on any such petition, but if the Board determines that the petition discloses suficient reasons in support of the relief requested to justify the institution of public rule making procedures, an appropriate notice of proposed rule making will be issued. Thereafter, the procedures to be followed will be as required in the Administrative Procedure Act. Where the Board determines that the petition does not disclose suficient reasons to justify the institution of public rule making procedures, petitioner, as well as persons filing answers, will be so notified together with the grounds for such denial. The provisions of this section shall not operate to prevent the Board, on its own motion, from acting on any matter disclosed in any petition.
(d) Prohibition of petitions for reconsideration of adopted rules. Unless the Board in adopting a rule expressly provides otherwise, the Board will not entertain petitions for reconsideration of an adopted rule. Nothing in this subsection shall be interpreted as precluding a petition for amendment, modification or repeal of an adopted rule prior to its effective date. § 302.39 Objections to public disclosure
of information. (a) Information contained in paper to be filed. Any person who objects to the
public disclosure of any information contained in any paper filed in any proceeding, or in any application, report, or other document filed pursuant to the provisions of the Federal Aviation Act of 1958, as amended, or any rule, regulation, or order of the Board thereunder, shall segregate, or request the segregation of, such information into a separate paper and shall file it, or request that it be filed, with the examiner or the person conducting the hearing or proceeding, as the case may be, or with the person with whom said application, report, or document is required to be filed, separately in a sealed envelope, bearing the caption of the enclosed paper and the notation “Classified or Confidential Treatment Requested Under $ 302.39." At the time of filing such paper, or when the objection is made by a person not himself filing the paper, application, report or other document, within five (5) days after the filing of such paper, the objecting party shall file a motion to withhold the information from public disclosure, in accordance with the procedure outlined in paragraph (d) of this section, or in accordance with the procedure outlined in paragraph (c) of this section if objection is made by a Government department or a representative thereof. Notwithstanding any other provision of this section, copies of the filed paper and of the motion need not be served upon any other party unless so ordered by the Board.
(b) 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 objection known. Upon such objection duly made, the witness or deponent shall be compelled to disclose such information only in the presence of the examiner or the person before whom the deposition is being taken, as the case may be, the official stenographer and such attorneys for and lay representative of each party as the examiner or the person before whom the deposition is being taken, as the case may be, 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 closure of the information would adTreatment Requested Under $302.39 versely affect the interests of the objectTestimony Given by (name of witness or ing person and is not required in the deponent).” Within five (5) days after interest of the public, or that the inforsuch testimony is given, the objecting mation is of a secret nature affecting the person shall file a motion, except as here national defense. inafter provided in paragraph (c) of this (3) Such motion shall be filed with the section, in accordance with the proce examiner or the person conducting the dure outlined in paragraph (d) of this hearing or proceeding, as the case may section, to withhold the information be, or with the person with whom said from public disclosure. Notwithstanding application, report, or document is reany other provision of this section, copies quired to be filed. of the segregated portion of the tran
I such motion relates to contracts, script and of the motion need not be
agreements, understandings, or arrangeserved upon any other party unless so
ments filed pursuant to section 412 (a) ordered by the Board.
of the Federal Aviation Act of 1958, as (c) Objection by Government depart
amended, and Part 261 of this chapter, ments or representative thereof. In the case of objection to the public disclosure
or pursuant to Part 262 of this chapter,
an executed original copy and two copies of any information filed by or elicited
of such motion shall be filed. from any United States Government de
(e) Motions referred to the Board. partment, or representative thereof,
The order of the Board containing its under paragraph (a) or (b) of this
ruling upon each such motion will specsection, the department making such
ify the extent to which, and the condiobjection shall be exempted from the
tions upon which, the information may provisions of paragraphs (a), (b), and
be disclosed to the parties and to the (d) of this section insofar as said paragraphs require the filing of a written
public, which order shall become effecobjection to such disclosure. However,
tive upon the date stated therein, unless, any department, or person representing
within five (5) days after the date of the said department, if it so destres, may file
entry of the Board's order with respect a memorandum setting forth the reasons thereto, a petition is filed by the objecton the basis of which it is claimed that ing person requesting reconsideration by a public disclosure of the information the Board, or a written statement is filed should not be made. If such & memo indicating that the objecting person in randum is submitted, it shall be filled and good faith intends to seek judicial review handled as is provided by this section of the Board's order. in the case of a motion to withhold
(f) Objections in proceeding before information from public disclosure.
the Board. Notwithstanding any of the (d) Porm of motion to withhold information from public disclosure. Sub
provisions of this section, whenever the
objection to disclosure of information ject to the exception of paragraph (c) of this section, no information covered
shall have been made, in the first inby paragraphs (a) and (b) of this sec
stance, before the Board itsell, the writtion need be withheld from public dis
ten motion of objection contemplated closure unless written objection to such
by paragraphs (a), (b), and (d) of this disclosure is filed with the Board in ac
section shall not be necessary but may cordance with the following procedure:
be submitted if the parties so desire or (1) The motion shall be headed with
if the Board, in a particular case, shall the title and docket number of the pro
so direct. ceeding and shall be signed by the ob
& 302.40 Saving clause. jecting person, any duly authorized officer or agent thereof, or by counsel Repeal, revision or amendment of any representing such person in the proceed Economic Regulation of the Board shall ing.
not affect any pending enforcement pro(2) The motion shall include (1) a ceeding or any enforcement proceeding description of the information sought initiated thereafter with respect to to be withheld, sufficient for identifica causes arising or acts committed prior tion of the same, and (ii) a full state to said repeal, revision or amendment, ment of the reasons on the basis of unless the act of repeal, revision or which it is claimed that a public dis amendment specifically so provides.