§ 251.13

Procedure governing disposition of applications.

(a) Each application will be docketed as received and applicants will be advised of the docket number assigned thereto.

(b) If the Board is convinced by the application and its consideration and investigation thereof that applicants have made a due showing that the public interest will not be adversely affected by the interlocking relationship for which approval is sought, an order of approval will be entered.

(c) If the Board is not convinced that applicants have made a due showing applicants will me advised to that effect by letter. Thereupon applicants may file with the Board a petition in the proceeding for leave to withdraw the application, may request that the application be assigned for hearing, or may submit within a reasonable time to be fixed by the Board such additional information as they believe will result in a due showing.

(d) In the event additional information is submitted, the Board reserves the right to assign the application for hearing on its own initiative or to enter an order of approval or disapproval in accordance with its determination that a due showing has or has not been made.

(e) The Board further reserves the right to vary the procedure herein set forth insofar as necessary or desirable in disposing of any particular application.

PART 261-FILING OF AGREEMENTS

Sec. 261.1

Who shall file.

261.2 Number of copies.

261.3

261.4

261.5

261.6

261.7

Formal requirements of documents filled.

Place and time of filing.

Certification and verification.

Modifications or cancellations.

Contracts or agreements previously filed.

261.8 Contracts or agreements between affiliated carriers.

AUTHORITY: The provisions of this Part 261 issued under secs. 204, 412, 72 Stat. 743, 770; 49 U.S.C. 1324, 1382, unless otherwise noted.

SOURCE: The provisions of this Part 261 contained in ER-146, 14 F.R. 3545, June 29, 1949, unless otherwise noted.

§ 261.1 Who shall file.

(a) The filing of copies of contracts and agreements which are required to be filed under the provisions of section 412(a) of the Civil Aeronautics Act of 1938, as amended, shall be made by every air carrier which is a party thereto as follows:

(1) Written contracts and agreements. In the case of contracts and agreements executed after October 25, 1954, formally reduced to writing and subscribed by the parties thereto, there shall be a presumption that if the required number of copies are filed by any air carrier which is a party to such contract or agreement, such filing has been made on behalf of itself and all other parties subscribed thereto. Written contracts and agreements executed prior to October 25, 1954, shall be filed in accordance with the rules contained in subparagraph (2) of this paragraph.

(2) Oral and informal contracts and agreements. In the case of oral or memorandum contracts and agreements, if the required number of copies of memoranda thereof are filed by any air carrier which is a party to such contract or agreement, any other air carrier which is a party shall be deemed to have complied with this requirement if it transmits to the Board within the time prescribed by § 261.4 a signed statement to the effect that it concurs in such filing.

(b) The filing of copies of contracts or agreements evidenced by resolutions or other action of association of air carriers may be effected in the following manner. The Secretary or other authorized officer of the association may

be designated as agent for the purpose of making such filing. Each air carrier which is a member of such association shall separately transmit to the Board a written statement, signed by such air carrier, reciting that a designated person or persons holding the office of secretary or other office of the association, or that any person or persons holding a designated office or offices of the association is constituted the attorney in fact for the filing of copies of any contracts or agreements evidenced by resolution or other action of the association to which such air carrier may become a party, Such authorizations may be revoked at any time by any air carrier by giving formal notice of revocation to the Board. [ER-146, 14 F.R. 3545, June 29, 1949, as amended by ER-200, 19 F.R. 6911, Oct. 28, 1954]

§ 261.2 Number of copies.

(a) There shall be filed with the Board two true and complete copies of all contracts and agreements which are required to be filed under the provisions of section 412(a) of the Civil Aeronautics Act of 1938, as amended. Oral contracts and agreements required to be filed under the provisions of said section shall be evidenced by true and complete written memoranda and two true and complete copies of such memoranda shall be filed with the Board. The filing of contracts or agreements evidenced by correspondence or by resolutions of associations of air carriers shall be made by filing with the Board two true and complete copies of such correspondence or resolutions, as the case may be.

(b) Additional copies of contracts or agreements shall be furnished to the Board upon request.

[ER-146, 14 F.R. 3545, June 29, 1949, as amended by ER-199, 19 F.R. 5210, Aug. 18, 1954]

written document should be carbonbacked.

§ 261.4

Place and time of filing.

The required number of copies of formal written contracts or agreements shall be filed at the office of the Board in Washington, D.C., addressed to the Civil Aeronautics Board, within 15 days after the date of execution thereof. The required number of copies of memoranda of oral contracts or agreements and of correspondence or resolutions evidencing contracts or agreements shall be filed in the same manner, within 30 days after such contracts or agreements have been entered into between the parties. The time of filing prescribed herein may be extended by the Board in exceptional circumstances upon proper application therefor.

[ER-146, 14 F.R. 3545, June 29, 1949, as amended by ER-199, 19 F.R. 5210, Aug. 18, 1954]

§ 261.5 Certification and verification.

(a) One copy of each formal written contract or agreement filed shall bear the certification of the secretary or other duly authorized officer of the filing party or parties to the effect that such copy is a true and complete copy of the original written instrument executed by the parties.

(b) One copy of each memorandum of oral contracts or agreements filed shall be verified by the secretary or other duly authorized officer of the filing party or parties to such oral contract or agreement. The person or persons verifying such memorandum shall set forth that they are fully familiar with all the terms and conditions of such oral contract or agreement and that the memorandum filed is a true and complete memorandum thereof.

(c) Copies of correspondence evidencing contract or agreements shall be accompanied by the certifications of the secretary or other duly authorized officer of the filing party or parties to the effect that such copies are true and complete copies of the originals of such correspondence.

(d) One copy of each contract or agreement evidenced by resolution or other action of association of air carriers shall bear the certification of the secretary of the association to the effect that such copy is a true and complete copy of the resolution duly adopted by

the association on a certain date. The secretary shall also specify in such certification the name of each air carrier which concurred in such resolution or other action and the name of each air carrier member which did not so concur. § 261.6 Modifications or cancellations.

This part shall be applicable to all modifications or cancellations of contracts or agreements required to be filed under the provisions of section 412(a) of the Civil Aeronautics Act of 1938, as amended.

§ 261.7 Contracts or agreements previously filed.

Contracts or agreements which have been filed prior to August 1, 1939, shall not be subject to the provisions of this part, except to the extent that the Board may by appropriate request in particular cases require compliance with any specific provision or provisions hereof.

§ 261.8

Contracts or agreements between affiliated carriers.

(a) Copies of contracts or agreements between a certificated air carrier and another air carrier, foreign air carrier or other carrier affiliated therewith shall be accompanied by a detailed statement supporting the reasonableness of the financial provisions of the agreement. This statement shall set forth information covering the following matters:

(1) Why the contract or agreement was entered into between the affiliated carriers in lieu of the provision of the service by the receiving carrier for itself or the receipt of the service from a nonaffiliated source.

(2) Whether the service could be obtained from a non-affiliated source, and, if so, at what price. (Provide appropriate data to support the answer, including any invitation or bid proposals.)

(3) The anticipated dollar volume during any fiscal year period.

(4) The basis for the particular charges contained in the contract or agreement.

(5) Supporting data showing the reasonableness of such charges, including data showing charges by other carriers for like services or by this carrier to unaffiliated carriers for like services.

(6) A description of the negotiations leading up to the contract or agreement and the determination of charges thereunder.

(7) The provision for renegotiation of the charges under the contract or agreement and, if present, the basis therefor.

(8) The persons primarily responsible for negotiating the contract or agreement or behalf of each party and the individuals who ultimately authorized it on behalf of each party.

(b) As used in this part, the word "affiliated" shall mean a relationship

(1) Within the meaning of section 5(8) of the Interstate Commerce Act, and amended, referred to in sections 407 (e) and 408(b) of the Civil Aeronautics Act of 1938, as amended, or

(2) Where the Board has found that one carrier, directly or indirectly, controls another carrier, or that one person, directly or indirectly, controls an air carrier and another carrier, or where proceedings have been instituted under section 408 to determine whether any such control relationship exists, no final determination having been reached in such proceedings, or

(3) Where one carrier, directly or indirectly, owns, controls, or holds with power to vote, 10 percent or more of the outstanding voting securities of the other carrier, or where a third person, directly or indirectly, owns, controls or holds with power to vote, 10 percent or more of the outstanding voting securities of an air carrier and another carrier.

(Interprets or applies secs. 407, 415, 52 Stat. 1000, as amended; 49 U.S.C. 487, 495) [ER235, 23 F.R. 6103, Aug. 9, 1958]

Every air carrier shall file with the Board true and complete evidence, as specified in § 262.2 of each agreement in any way affecting or involving operating rights and in force on October 11, 1943, or thereafter issued or entered into as between such air carrier, or any officer or representative thereof, and any foreign country or political subdivision thereof, or any department, agency, officer or representative of such country or subdivision. For the purposes of this part, the term "agreement" means and includes any permit, concession, franchise, contract, understanding, or arrangement, and also any amendment, modification, renewal, rescission or revocation of any thereof.

§ 262.2 Evidence of agreement.

(a) The evidence of such agreement shall be as follows:

(1) If written in English, three copies thereof;

(2) If written in a foreign language, three copies and three translations

PART 263-PARTICIPATION OF AIR CARRIER ASSOCIATION IN BOARD PROCEEDINGS

Sec. 263.1 263.2

Definitions.

Approval of articles of association relating to participation in Board proceedings.

263.3 Leave for participation of air carrier associations in Board proceedings.

AUTHORITY: The provisions of this Part 263 issued under secs. 102, 204, 412, 1001, 72 Stat. 740; sec. 3, 60 Stat. 238; 49 US.C. 1302, 1324, 1382, 1481; 5 U.S.C. 552, unless otherwise noted.

SOURCE: The provisions of this Part 263 contained in ER-272, 24 F.R. 4883, June 16, 1959, unless otherwise noted.

§ 263.1 Definitions.

For the purposes of this part:

(a) Air carrier association means an association composed entirely or in part of air carriers which are not exempted from the provisions of section 412 of the act in respect of relationships between one another.

(b) Board proceedings means any proceedings of the Board to which the Board's procedural regulations apply. § 263.2 Approval of articles of association relating to participation in Board proceedings.

The Board considers it adverse to the public interest, and contrary to the policy of the Federal Aviation Act, for an association created by agreement subject to approval under section 412 of the act, its officers or employees, to participate in Board proceedings unless the articles of association contain provisions approved by the Board authorizing such participation, and the Board upon motion or upon its own initiative grants leave therefor. The Board therefore will approve only such provisions as provide for participation of the association in Board proceedings under the following circumstances:

(1) Where the issues substantially affect the property or financial interests of the association as opposed to an interest derivative from its members;

(2) Where the association acts as a conduit to the Board of factual information gathered from the members, as distinguished from presentation of opinions or positions on issues; or

(3) Where the association represents certain named members at their request and a copy of a resolution authorizing such participation and signed by each such carrier is submitted to the Board.

NOTE: The requirement expressed in this paragraph and paragraph (3) of Section 263.3 shall be deemed fulfilled upon filing with the Board of powers of attorney signed by duly authorized officers of each carrier to be represented by the association in the particular Board proceeding. The air carriers so represented shall become the parties to the proceeding. The participation of the association is limited to acting as attorney-in-fact for such air carriers.

(Interpret or apply sec. 6(a) of the Administrative Procedure Act, 60 Stat. 240; 5 U.S.C. 555) [ER 272, 24 FR. 4883, June 16, 1959, as amended by ER-294, 25 FR. 901, Feb. 8, 1960]

§ 263.3 Leave for participation of air carrier associations in Board proceedings.

An air carrier association, its officers or employees may participate in Board proceedings only if its articles of association or by-laws contain provisions approved by the Board under section 412 of the act authorizing such participation, and if the Board upon motion or upon its own initiative grants leave therefor. Leave ordinarily will be granted under the following circumstances:

(1) Where the issues substantially affect the property of financial interests of the association as opposed to an interest derivative from its members. In passing on motions for formal intervention of associations of air carriers in economic adjudicatory proceedings under § 302.15 of the procedural regulations, the Board will be guided by the provisions of this section;

(2) Where the association acts as a conduit to the Board of factual information gathered from the members, as distinguished from presentation of opinions or positions on issues; or

(3) Where the association represents certain named members at their request and a copy of a resolution authorizing such participation and signed by each such carrier is submitted to the Board: Provided, That upon motion of any interested person or upon its own initiative the Board may issue an order requiring the association to withdraw from the case on the ground of significant divergency of interest or position in respect of

For the purposes of this part:

(a) "Indirect air carrier" means any air carrier not engaged directly in the operation of aircraft in air transportation which comes within the classification of "Air Freight Forwarders" and "Cooperative Shippers Associations," established by Part 296 of this chapter or within the classification of "International Air Freight Forwarders" established by Part 297 of this chapter.

(b) "Direct air carrier" means any air carrier directly engaged in the operation of aircraft, pursuant to a certificate of public convenience and necessity issued under section 401 of the Act, or pursuant to exemption authority conferred under section 416(b) (other than air carriers under Part 298 of this chapter) or pursuant to interim operating authority under Public Law 86-661, dated July 14, 1960.

(c) "Interlocking relationship" means any of the relationships set forth in section 409(a) of the Act which are set forth in Appendix I of this part.

(d) "Aircraft manufacturer" means any person engaged in the design and