The transcript of testimony and exhibits, together with all papers, requests, and rulings filed in the proceeding, shall constitute the exclusive record for the initial decision. The record shall include any proceeding upon an affidavit of personal bias or disqualification of an examiner. Copies of the transcript may be obtained by any party from the official reporter upon payment of the fees fixed therefor.

§ 301.35 Certification to the Board.

At any time prior to the close of the hearing, the Board may direct the examiner to certify any question or the entire record in the proceeding to the Board for decision. In cases where the record is certified to the Board, the examiner shall not render an initial decision but shall only recommend to the Board a decision as required by section 8(a) of the Administrative Procedure Act.

§ 301.40

INITIAL DECISION

Initial decision by examiner. (a) The examiner shall render his initial decision in writing after the close of the hearing. The decision shall recite that it is made under delegated authority, and contain notice of the provisions of § 301.45(a).

(b) The initial decision shall include a statement of findings and conclusions, as well as the reasons or basis therefor, upon all material issues of fact (including the credibility of witnesses where such finding is material), law, or discretion presented on the record and the appropriate sanction or denial thereof.

(c) The initial decision shall be served upon the parties. At any time before the date for filing a petition for discretionary review has passed, the examiner or the Board may, for good cause shown, extend the time within which to file such petition and the examiner may also reopen the case for good cause upon notice to both parties. § 301.41

Effect of examiner's initial de

cision. Unless a petition for discretionary review is filed pursuant to § 301.45 (a) or

the Board issues an order to review upon its own initiative, the initial decision made by an examiner pursuant to § 301.29(b) shall become effective as the decision of the Board 20 days after service thereof.

DISCRETIONARY REVIEW OF DECISIONS § 301.45 Procedure on petitions for discretionary review.

(a) Petitions for discretionary review. (1) Review by the Board pursuant to this section is not a matter of right but of the sound discretion of the Board. Any party to the proceeding may file and serve a petition for discretionary review by the Board of an initial decision rendered pursuant to § 301.29 (b) within 20 days after service thereof. If a petition for discretionary review is timely filed or if action to review is taken by the Board upon its own initiative, the effectiveness of the examiner's initial decision is stayed until the further order of the Board. No oral argument will be heard on petitions for discretionary review.

(2) Petitions for discretionary review shall be accompanied by proof of service on all parties, shall concisely and plainly state the issues presented for review and shall be filed only upon one or more of the following grounds:

(1) A finding of a material fact is erroneous;

(ii) A necessary legal conclusion is without governing precedent or is a departure from or contrary to law, Board rules, or precedent;

(iii) A substantial and important question of law, policy or discretion is involved; or

(iv) A prejudicial procedural error has occurred.

Petitions for discretionary review shall not exceed 10 pages in length.

(b) Answer. Within 15 days after service upon the opposing party of a petition for discretionary review, such party may file in opposition thereto an answer of not more than 10 pages, which shall be served on all parties and accompanied by proof of service.

(c) Orders declining review. Board orders declining to exercise the Board's right of review will specify the date upon which the examiner's decision shall become effective as the final decision of the 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.

[PR-88, 28 F.R. 13299, Dec. 7, 1963, as amended by PR-95, 30 F.R. 14368, Nov. 17, 1965]

§ 301.46 Proceedings on review.

(a) Orders exercising right of review. (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:

(i) Specify the issues to which review will be limited. Such issues shall constitute one or more of the issues raised in a petition for discretionary review and/or matters which the Board desires to review on its own initiative. Only the issues specified in such order shall be argued on brief and will be 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.

(b) Briefs. Briefs to the Board shall be filed only in those cases where the Board has ordered discretionary review and shall be limited to those issues specified in such order. Petitioner's brief shall be filed within 20 days after service of such order. When a party who has filed a petition for discretionary review fails to file a timely brief complying with the requirements of this section, the Board may rescind in whole or in part its order exercising its right of review.

(c) Contents of briefs. Each petitioner's brief shall set forth in detail the alleged errors in the initial decision and state the reasons for such objections and the relief requested. Where any objection is based upon evidence of record, such objection need not be considered by the Board if specific record citations to the pertinent evidence are not contained in the brief.

(d) Answering briefs. Within 15 days after service of a brief supporting the petition for discretionary review, any other party may file and serve an answering brief. No further briefs may be filed except upon specific leave of the Board granted upon a showing of good cause. Where the answering brief relies upon evidence of record, specific citations thereto shall be made in the brief.

(e) Oral argument. Oral argument before the Board is normally not granted in further proceedings on orders of discretionary review, but the Board may permit oral argument when a need therefor is shown. If a party desires to argue his case orally before the Board, he must file a request with the Board for leave to make such argument no later than the date when his brief is due.

[PR-88, 28 F.R. 13299, Dec. 7, 1963, as amended by PR-95, 30 F.R. 14368, Nov. 17, 1965]

§ 301.47

Board decision on review of initial decisions.

The Board will dispose of the issues on review by appropriate order which includes a statement of the reasons for its findings and conclusions. If the Board determines that the examiner erred in any respect or that his order specifying the appropriate sanction or denial thereof should be changed, the Board may make any necessary findings or order in lieu thereof or remand the case for further hearing.

§ 301.48 Petition for rehearing, reargument, reconsideration, or modification of Board order.

(a) Any party to a proceeding may petition for rehearing, reargument, reconsideration, or modification of a Board order. Initial decisions which have become final, in the absence of a timely petition for discretionary review or because the Board has declined to order review thereof, shall not be deemed orders for this purpose. The petition shall be filed with the Board, and served upon all other parties within 20 days after service of the Board's order. The petition shall state, briefly and specifically, the matters of record alleged to have been erroneously decided, the ground relied upon, and the relief sought. If the petition is based, in whole or in part, on allegations as to the consequences that would result from the Board's order, the basis of such allegations shall be set forth. If the petition is based, in whole or in part, upon new matter, the petition shall set forth

such new matter; shall contain affidavits of prospective witnesses, authenticated documents, or both, or an explanation why such substantiation is unavailable; and shall explain why such new matter could not have been discovered, by the exercise of due diligence, prior to the date the case was submitted for decision. Repetitious petitions will not be entertained by the Board.

(b) Replies to petitions filed pursuant to this section shall be filed and served upon petitioners within 10 days after the receipt of the petition.

(c) The filing of a petition under this section shall not operate to stay the effectiveness of the Board's order, unless otherwise ordered by the Board.

PROCEDURE ON EMERGENCY ORDERS § 301.50 Proceedings where the Administrator has made an emergency order.

(a) When the Administrator has made an emergency order, as provided for in section 609 of the Act, and it has been appealed to the Board, the provisions of this part shall apply with the following modifications: Where the procedure of § 301.26 is not used, the Administrator shall serve and file his complaint within 5 days after advising the Board of the emergency character of his order, and the respondent shall serve and file his answer within 8 days. Where the procedure of § 301.26 has been used, the Administrator's advice of the emergency character of his order shall be deemed received by the Board at the time his order is docketed and the respondent's answer, if separate from the appeal, shall be filed and served within 5 days of the filing of the appeal.

(b) No motion to dismiss or for more definite statement shall be made but the substance thereof may be stated in the answer. The examiner may permit or require a more definite statement or other amendment to any pleading at the hearing upon just and reasonable terms.

(c) The examiner shall, immediately upon the filing of the answer, set the date and place for hearing upon not to exceed 8 days' notice to the parties. The initial decision (not made under authority delegated by § 301.29(b)) shall be made orally on the record at the termination of the hearing and after opportunity for oral argument.

(d) Parties to the proceeding may appeal from an initial decision (not made under authority delegated by § 301.29 (b)) as of right by filing with the Board

and serving upon the other parties a notice of appeal within 2 days after the examiner renders his initial decision. No exceptions shall be filed but, within 5 days of the notice of appeal, each party shall file with the Board and serve upon other parties a brief. Such briefs shall comply with the requirements of §§ 301.4 and 301.46(c). The Board will give 3 days' notice of oral argument, where granted. The Board will not entertain petitions for reconsideration, rehearing, reargument, or modification of its order except on the ground that new matter has been discovered. Such petitions shall be filed with the Board and served on other parties within 10 days after service of the Board's order; shall set forth the new matter; shall contain affidavits of prospective witnesses, authenticated documents, or both, or an explanation why such substantiation is unavailable; and shall state that such new matter could not have been discovered, by the exercise of due diligence, prior to the date the case was submitted for decision. The Board, upon its own motion, may raise any issue the resolution of which it deems important to a proper disposition of the proceeding; in such case a reasonable opportunity will be afforded the parties to submit argument thereon.

(e) Where an order of the Administrator not designated as an emergency order has been appealed and the Administrator advises the Board at any time prior to final disposition of the appeal that an emergency exists in respect of such order, the examiner or the Board shall determine from what time on the proceeding shall be governed by this section.

[PR-88, 28 F.R. 13299, Dec. 7, 1963, as amended by PR-95, 30 F.R. 14368, Nov. 17, 1965]

PART 302-RULES OF PRACTICE IN ECONOMIC PROCEEDINGS

AUTHORITY: The provisions of this Part 302 issued under secs. 5, 7, 8, 12, 60 Stat. 239, 241, 242, 244, secs. 101, 204, 403, 406, 416, 1001, 1002, 72 Stat. 737, 743, 758, 763, 771, 788; 5 U.S.C. 1004, 1006, 1007, 1011, 49 U.S.C. 1301, 1324, 1373, 1376, 1386, 1481, 1482, and Reorganization Plan No. 3 of 1961, 26 F.R. 5989, except as otherwise noted.

SOURCE: The provisions of this Part 302 contained in PR-70, 27 F.R. 12545, Dec. 19, 1962, except as otherwise noted.

(a) Applicability. This part governs the conduct of all economic proceedings before the Board whether instituted by order of the Board or by the filing with the Board of an application, complaint or petition. This part also contains the Board's delegation to hearing examiners pursuant to Reorganization Plan No. 3 of 1961 of the Board's function to render the agency decision in certain cases, subject to discretionary review by the Board. The provisions of Part 263 of the economic regulations are applicable to participation of air carrier associations in proceedings under this part. However, there are exceptions to the applicability of this part with respect to two classes of proceedings:

(1) Proceedings involving "Alaskan air carriers" are governed by the rules in this part, except as modified by Part 292 of this chapter.

(2) Proceedings governed by Part 301 and Part 303 of this subchapter (Rules of Practice in Air Safety Proceedings