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.

(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:

(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 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.

(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. If 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 included 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 a 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 formal 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.

(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 be 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 s ch 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 briefs, and exhibits which are enlarged and used for demonstration purposes at the argument, but does not include the enlargements of such exhibits.

§ 302.33 Waiver of procedural steps after hearing.

The parties to any proceeding may agree to waive any one or more of the following procedural steps provided in §§ 302.25 through 302.32: Oral argument before the examiner, the filling of proposed findings and conclusions for the examiner or for the Board, a recommended decision of the examiner, a tentative decision of the Board, exceptions to a recommended decision of the examiner or a tentative decision of the Board, a petition for discretionary review of an initial decision, the filing of briefs with the Board, or oral argument before the Board.

§ 302.35 Shortened procedure.

In cases where a hearing is not required by law, §§ 302.23 through 302.33, relating to prehearing, hearing, and post-hearing procedures, shall not be applicable except to the extent that the Board 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.

§ 302.36 Final decision of the Board.

When a case stands submitted to the Board for final decision on the merits, the Board will dispose of the issues presented by entering an appropriate order which will include a statement of the reasons for its findings and conclusions. Such orders shall be deemed "final orders" within the purview of § 302.37(a). § 302.37 Petitions for reconsideration.

(a) Board orders subject to reconsideration; time for filing. Unless an order or a rule of the Board specifically provides otherwise, any party to a proceeding may file a petition for reconsideration, rehearing or reargument of (1) a final order issued by the Board or (2) an interlocutory order issued by the Board which institutes a proceeding or defines the scope and issues of a proceeding or suspends a provision of a tariff on file with the Board. Unless the time is shortened or enlarged by the Board, 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, 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 Board. 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 to the petition. 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 thereof has expired, will not be granted by the Board except on a showing of unusual and exceptional circumstances, constituting good cause for 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 the petition is based, in whole or in part, on allegations as to the consequences which 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, 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 Board upon a showing of unusual or exceptional circumstances, petitions for reconsideration, rehearing or reargument or answers thereto which exceed twenty-five (25) pages (including appendices) in length shall not be accepted for filing by the Docket Section.

(c) Successive petitions. A successive petition for rehearing, reargument, or reconsideration filed by the same party or parties, and upon substantially the same ground as a former petition which has been considered or denied by the Board, will not be entertained.

§ 302.38 Petitions for rule making.

(a) Scope. Any interested person may petition the Board for the issuance, amendment, modification, or repeal of any regulation. For purposes of this section, such proposed action will be 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 sufficient 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 sufficient 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.

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 filling 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 Treatment Requested Under § 302.39 Testimony Given by (name of witness or deponent)." Within five (5) days after such testimony is given, the objecting person shall file a motion, except as hereinafter provided in paragraph (c) of this section, 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 Board.

(c) 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 representative thereof, under paragraph (a) or (b) of this section, the department making such objection shall be exempted from the provisions of paragraphs (a), (b), and (d) of this section insofar as said paragraphs require the filing of a written objection to such disclosure. However, any department, or person representing said department, if it so desires, may file a memorandum setting forth the reasons on the basis of which 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.

(d) Form of motion to withhold information from public disclosure. Subject to the exception of paragraph (c) of this section, no information covered by paragraphs (a) and (b) of this section need be withheld from public disclosure unless written objection to such disclosure is filed with the Board in accordance with the following procedure:

(1) The motion shall be headed with the title and docket number of the proceeding and shall be signed by the objecting person, any duly authorized officer or agent thereof, or by counsel representing such person in the proceed

ing.

(2) The motion shall include (1) a description of the information sought to be withheld, sufficient for identification of the same, and (ii) a full statement of the reasons on the basis of which it is claimed that a public dis

closure of the information would adversely affect the interests of the objecting person and is not required in the interest of the public, or that the information is of a secret nature affecting the national defense.

(3) Such motion shall 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.

If such motion relates to contracts, agreements, understandings, or arrangements filled pursuant to section 412 (a) of the Federal Aviation Act of 1958, as amended, and Part 261 of this chapter, or pursuant to Part 262 of this chapter, an executed original copy and two copies of such motion shall be filed.

(e) Motions referred to the Board. The order of the Board 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 order shall become effective upon the date stated therein, unless, within five (5) days after the date of the entry of the Board's order with respect thereto, a petition is filed by the objecting person requesting reconsideration by the Board, or a written statement is filed indicating that the objecting person in good faith intends to seek judicial review of the Board's order.

(1) Objections in proceeding before the Board. Notwithstanding any of the provisions of this section, whenever the objection to disclosure of information shall have been made, in the first instance, before the Board itself, the written motion of objection contemplated by paragraphs (a), (b), and (d) of this section shall not be necessary but may be submitted if the parties so desire or if the Board, in a particular case, shall so direct.

§ 302.40 Saving clause.

Repeal, revision or amendment of any Economic Regulation of the Board shall not affect any pending enforcement proceeding or any enforcement proceeding initiated thereafter with respect to causes arising or acts committed prior to said repeal, revision or amendment, unless the act of repeal, revision or amendment specifically so provides.