SOURCE: The provisions of this Part 305 contained in PR-82, 28 FR 5990, June 13, 1963, unless otherwise noted.

NOMENCLATURE CHANGES: 37 FR 18909, Sept. 16, 1972.

§ 305.1 Applicability.

The provisions of this part shall govern informal nonpublic investigations, as distinguished from formal investigations and adjudicatory proceedings, undertaken by the Bureau of Enforcement with a view to obtaining information from any person. While the Board seeks and encourages voluntary cooperation and believes that it is in the best interest of all parties concerned, it will utilize the procedures provided by this part to compel the disclosure of information by any person where the Board wishes to determine whether such person, or any other person, has been or is violating any provisions of Title IV or sections 101(3), 1002, 1003, or 1108(b) of the Act, or any rule, regulation, order, certificate, permit, or letter or registration issued pursuant thereto by the Board and when the information appears to be relevant to the matter under investigation. This part shall not apply to employees or records of other agencies of the United States Government, the District of Columbia, or the several States and their political subdivisions.

For the purpose of, and as used in this part, the term "investigation" means a non-adjudicatory, informal nonpublic investigation for the purpose of determining whether formal enforcement action should be instituted with respect to alleged violations of law. §§ 305.3-305.4 [Reserved] § 305.5 Initiation of investigation.

An investigation may be initiated by order of the Board. Each such order shall designate a staff attorney of the Bureau of Enforcement as Investigation Attorney for the purpose of conducting such investigation pursuant to the provisions of this part. Investigation Attorneys and administrative law judges are hereby authorized to exercise and perform their duties and functions under this part in accordance with the provisions of the Act and the rules and regulations of the Board.

58-060-76- -34

(a) Upon request of the Director, Bureau of Enforcement, any Member of the Board, the chief administrative law judge or the administrative law judge designated to preside at the reception of evidence, may issue a subpena directing the person named therein to appear before a designated administrative law judge at a designated time and place to testify or to produce documentary evidence relating to any matter under investigation, or both. Each such subpena shall briefly advise the person required to testify or submit documentary evidence of the purpose and scope of the investigation, and a copy of the order initiating the investigation shall be attached to the subpena.

(b) Witnesses subpenaed to appear shall be paid the fees and mileage prescribed in § 302.21 of the Rules of Practice (14 CFR 302.21). Service of such subpenas shall be made in accordance with the provisions of § 302.8 of the Rules of Practice (14 CFR 302.8).

Any person required to testify or to submit documentary evidence shall be entitled to procure, on payment of lawfully prescribed costs, a copy of any document produced by such person and of his own testimony as stenographically reported. Any person compelled to testify or to produce documentary evidence may be accompanied, represented, and advised by counsel.

§ 305.10 Nonpublic character of proceedings.

Investigations shall be attended only by the witnesses and their counsel, the administrative law judge, the Investigation Attorney, other Board personnel concerned with the conduct of the pro

ceeding and the official stenographer. All orders initiating investigations, motions to quash or modify investigation subpenas, orders disposing of such motions, documents, and transcripts of testimony shall be part of the record in the investigation. The record of such proceedings shall constitute internal Board documents which shall not be available to the general public. The use of such records in Board proceedings subject to Part 302 of the Rules of Practice shall be governed by §§ 302.19(g) and 302.39 and by the law of evidence applicable to Board proceedings.

§ 305.11

Procedures after investigation.

Upon completion of the investigation, where the Director, Bureau of Enforcement, determines that no corrective action is warranted, the investigation will be closed, and any documentary evidence obtained in the investigation will be returned to the persons who produced it. Where remedial action is indicated by the investigation, the Director will proceed pursuant to Subpart B of Part 302 of the Rules of Practice or will take such other action as may be appropriate. § 305.12 Motions to quash or modify an investigation subpena.

Any person upon whom an investigation subpena is served may, within seven (7) days after such service or at any time prior to the return date thereof, whichever is earlier, file a motion to quash or modify such subpena with the administrative law judge who issued such subpena, or in the event the administrative law judge is not available, with the chief administrative law judge for action by himself or by a member of the Board. Such motions shall be made in writing in conformity with Rules 3 and 4 of the rules of practice (Part 302 of this subchapter); shall state with particularity the grounds therefor and the relief sought; shall be accompanied by the evidence relied upon and all such factual matter shall be verified in accordance with the provisions of Rule 202 of the aforesaid rules of practice. Written memoranda or briefs may be filed with the motions, stating the points and authorities relied upon. No oral argument will be heard on such motions unless the chief administrative law judge, the administrative law judge or a member of the Board directs otherwise. A subpena will be quashed or modified if the evidence whose production is required is

not reasonably relevant to the matter under investigation, or the demand made does not describe with sufficient particularity the information sought, or the subpena is unlawful or unduly burdensome. The filing of a motion to quash or modify an investigation subpena shall stay the return date of such subpena until such motion is granted or denied. The Board may at any time review, upon its own initiative, the ruling of an administrative law judge or the chief administrative law judge or a member of the Board denying a motion to quash a subpena. In such cases, the Board may order that the return date of a subpena which it has elected to review be stayed pending Board action thereon.

[PR-113, 35 F.R. 10510, June 27, 1970]

This regulation is published pursuant to Public Law 90-23, sections (a) (2), (3), (4), 5 U.S.C. 552(a) (2), (3), (4), and describes the manner in which Board opinions, orders, and records shall be available for public inspection and copying in order both to provide for proper public access to the Board's records and to safeguard those records which must be protected.

§ 310.2 Records available.

(a) As used herein, Board "records" include all opinions, orders, manuals, pa

pers, maps, files, letters, memoranda, studies, reports, information, or other documentary materials in being and in possession of the Board which have come into the possession of the Board in the discharge of its official duties, other than documentary materials which are possessed by the Board but which are records of another Government agency. Not included within Board "records" are articles; objects; equipment; and other nondocumentary materials.

(b) For the guidance and convenience of the public, a list is attached to this part designated Appendix A, which describes various records which are available for inspection and copying. Records which do not fall within one of the described categories nevertheless may be open to inspection and copying. Conversely a record listed in Appendix A to this part may be withheld from general inspection and copying because all or part of it may be an exempted record. By way of example, Board records otherwise normally available may be exempted where they consist of docket materials withheld from public disclosure under § 302.39 of the Board's Procedural Regulations in this chapter, certain carrier reports received on a confidential basis, or Minutes of the Board relating to exempted personnel and classified matters. Exempted records are described in § 310.3.

(c) Members of the public may also consult the Board's "List of Publications", obtainable from the Board's Publications Services Section, which describes a number of Board documents for which copies are available for a fee or without charge. The documents listed therein may also be inspected without charge upon request made at the Board's Public Reference Room.

[PR-102, 32 F.R. 8793, June 21, 1967, as amended by PR-110, 35 F.R. 6118, Apr. 15, 1970]

§ 310.3 Exempted records.

(a) As used herein, "exempted records" include those Board records which, pursuant to 5 U.S.C. 552(b) or other applicable law or regulation, are not required to be made available generally for inspection or copying.

(b) Appendix B to this part lists various kinds of records which are "exempted records" and therefore may be excluded from public availability. Appendix B to this part is for the convenience and guidance of the public and is

not an exhaustive listing; other records not listed therein may be subject to withholding as "exempted records." Any "exempted record" will be withheld from public disclosure only where it is determined that the release of the record would be inconsistent with the purpose of the exemption.

[PR-102, 32 FR 8793, June 21, 1967, as amended by PR-134, 38 FR 5153, Feb. 26, 1973]

§ 310.4 Time and place where records may be inspected or copied.

(a) Records may be inspected and copied at the Board's Public Reference Room or other offices, Universal Building, 1825 Connecticut Avenue NW., Washington, D.C., during the Board's normal business hours, 8:30 a.m., to 5 p.m., local time, Monday through Friday, excluding legal holidays, unless the Board's business hours are otherwise provided by statute or Executive order. (b) "Public Reference Room" is the principal Board facility where requests for records shall be made and where records may be viewed or copied, and where other reference materials, such as the Board's regulations, the CAB Manual, Board Orders, Decisions of the Administrative Law Judges, statements of policy and interpretations of general applicability, certain carrier financial reports, the Public Index to Board materials, lists of Board publications, and a list of forms used by the Board in dealing with the public are available for inspection.

§ 310.5 Fees for locating and copying records.

Appropriate fees for locating and copying Board records are prescribed in Part 389 of this chapter.

[PR-142, 40 FR 7241, Feb. 19, 1975]

§ 310.6 Procedure for requesting records.

(a) A request to inspect or copy, or have copied, the Board's records described in Appendix A to this part may be made in person, by telephone, or in writing. Where a specific office is noted after the listing of a record in Appendix A to this part, the request shall be directed to that office. All other requests shall be directed to the Public Reference Room.

(b) Requests for records shall be specific and must identify the specific records or materials which are desired