issues as may be necessary to protect the public interest or to prevent injustice and shall not be unduly repetitious. Evidence shall be presented in written form by all parties wherever feasible, as the examiner may direct.

(c) Objections to evidence. Objections to the admission or exclusion of evidence shall be in short form, stating the grounds of objections relied upon, and the transcript shall not include argument or debate thereon except as ordered by the examiner. Rulings on such objections shall be a part of the transcript.

(d) Exceptions. Formal exceptions to the rulings of the examiner made during the course of the hearing are unnecessary. For all purposes for which an exception otherwise would be taken, it is sufficient that a party, at the time the ruling of the examiner is made or sought, makes known the action he desires the examiner to take or his objection to an action taken, and his grounds therefor.

(e) Offers of proof. Any offer of proof made in connection with an objection taken to any ruling of the examiner rejecting or excluding proferred oral testimony shall consist of a statement of the substance of the evidence which counsel contends would be adduced by such testimony, and if the excluded evidence consists of evidence in documentary or written form or of reference to documents or records, a copy of such evidence shall be marked for identification and shall constitute the offer of proof.

(f) Exhibits. When written exhibits are offered in evidence, one copy must be furnished to each of the parties at the hearing, and two copies to the examiner, unless the parties previously have been furnished with copies or the examiner directs otherwise. If the examiner has not fixed a time for the exchange of exhibits, the parties shall exchange copies of exhibits at the earliest practicable time, preferably before the hearing or, at the latest, at the commencement of the hearing.

(g) Substitution of copies for original exhibits. In his discretion, the examiner may permit a party to withdraw original documents offered in evidence and substitute true copies in lieu thereof.

(h) Designation of parts of documents. When relevant and material matter offered in evidence by any party is embraced in a book, paper, or document containing other matter not mate

rial or relevant, the party offering the same shall plainly designate the matter so offered. The immaterial and irrelevant parts shall be excluded and shall be segregated insofar as practicable. If the volume of immaterial or irrelevant matter would unduly encumber the record, such book, paper, or document will not be received in evidence, but may be marked for identification, and, if properly authenticated, the relevant or material matter may be read into the record, or, if the examiner so directs, a true copy of such matter, in proper form, shall be received as an exhibit, and like copies delivered by the party offering the same to opposing parties or their attorneys appearing at the hearing, who shall be afforded an opportunity to examine the book, paper, or document, and to offer in evidence in like manner other portions thereof.

(i) Records in other proceedings. In case any portion of the record in any other proceeding or civil or criminal action is offered in evidence, a true copy of such portion shall be presented for the record in the form of an exhibit unless:

(1) The portion is specified with particularity in such manner as to be readily identified; and

(2) The party offering the same agrees unconditionally to supply such copies later, or when required by the Board; and

(3) The parties represented at the hearing stipulate upon the record that such portion may be incorporated by reference, and that any portion offered by any other party may be incorporated by like reference upon compliance with subparagraphs (1) and (2) of this paragraph; and

(4) The examiner directs such incorporation or waives the above requirement with the consent of the parties.

(j) Receipt of documents after hearing. No document or other writings shall be accepted for the record after the close of the hearing except in accordance with an agreement of the parties and the consent of the examiner.

(k) Transcript of hearings. Hearings shall be recorded and transcribed by & contract reporter of the Board under supervision of the examiner. Copies of the transcript shall be supplied to the parties to the proceeding by the reporter at rates not to exceed the maximum rates fixed by contract between the Board and the reporter.

(1) Corrections to transcript. Changes in the official transcript may be made only when they involve errors affecting substance. A motion to correct a transcript shall be filed with the Docket Section of the Board within ten (10) days after receipt of the completed transcript by the Board. If no objections to the motion are filed within ten (10) days thereafter, the transcript may, upon the approval of the examiner, be changed to reflect such corrections. If objections are received, the motion and objections shall be submitted to the official reporter by the examiner together with a request for a comparison of the transcript with the stenographic record of the hearing. After receipt of the report of the official reporter an order shall be entered by the examiner settling the record and ruling on the motion.

(m) Official notice of facts contained in certain documents. (1) Without limiting, in any manner or to any extent, the discretionary powers of the Board and its examiners to notice other matters or documents properly the subject of official notice, facts contained in any document within the categories enumerated in this subdivision are officially noticed in all formal economic proceedings except those subject to Subpart B of this part. Each such category shall include any document antedating final Board decision in the proceeding where such notice is taken. The matters officially noticed under the provisions of this paragraph are:

1. Official Guide of the Airways for each month prior to and including April 1943; Universal Airline Schedules for each month from May 1943 to September 1944, inclusive; American Aviation Air Traffic Guide for each month from October 1944 to August 1948, inclusive; and Official Airline Guide.

2. Official Guide of the Railways and Russell's Official National Motor Coach Guide.

3. Book of Official CAB Airline Route Maps and Airport to Airport Mileages published by Air Transport Association of America. 4. Shuler Guide and Official Airline Guide Quick Reference Edition.

5. All schedules and amendments thereof, and all tariffs and amendments thereof, of all carriers, on file with the Board.

6. Air carrier operating certificates or applications therefor, of all carriers, together with any requests for amendment thereof.

7. Monthly reports, Forms 2380 and 2780, for each month through December 1946, and monthly and quarterly reports, Forms 41 and 41(a) (including monthly and annual re

ports required to be filed by all carriers in connection therewith), filed with the Board. 8. Recurrent Reports of Mileage and Traffic Data of all Domestic Airline Carriers from 1945 and all similar reports issued by the Civil Aeronautics Board.

9. Certificated Air Carrier Traffic Statistics from 1955; prepared by the Office of Carrier Accounts and Statistics, Civil Aeronautics Board, and all such other similar compilations of statistics issued by the Civil Aeronautics Board.

10. Recurrent Reports of Financial Data of all Domestic Airline Carriers from 1947 through the quarter ended September 30, 1953; issued by the Civil Aeronautics Board, and all such other similar recurrent reports issued by the Civil Aeronautics Board.

11. Certificated Air Carrier Financial Data from the quarter ended December 31, 1953; prepared by the Office of Carrier Accounts and Statistics, Civil Aeronautics Board, and all such other similar compilations of data issued by the Civil Aeronautics Board.

12. Annual Airline Statistics, Domestic Carriers, fiscal years 1936-1941; Annual Airline Statistics, Domestic Carriers, calendar years 1938-1947; prepared by the Economic Bureau, Civil Aeronautics Board; and all such other similar compilations of statistics issued by the Civil Aeronautics Board.

13. Quarterly Report of Air Carrier Operating Factors, for the quarter ended September 30, 1953; prepared by the Office of Carrier Accounts and Statistics, Civil Aeronautics Board, and all such other reports for quarterly periods as may be made available to the public by the Civil Aeronautics Board.

14. Passenger, mail, express, and freight data submitted to the Board on Form 2787 or on punch cards submitted in lieu of such forms, by all carriers for any months subsequent to March 1955.

15. Airline Traffic Surveys, compiled by the Civil Aeronautics Board, from September 1946, and any other such surveys made available to the public.

16. The publication Competition Among Domestic Air Carriers, March 1-14, 1955, compiled by the Civil Aeronautics Board and published by the Air Transport Association of America, and any other compilations of similar data made available to the public. 17. Service Mail Pay and Subsidy for United States Certificated Air Carriers, from 1955, published by the Civil Aeronautics Board, and any supplemental data and subsequent issues published.

18. Airport Activity Statistics of Certifi cated Air Carriers, from December 31, 1955; compiled by the Civil Aeronautics Board, and published by Air Transport Association of America, and any subsequent issues thereof published.

19. Enplaned Airline Traffic, by community, by year, 1948-1951; Air Commerce Traffic Pattern, fiscal years 1953-1955 and calendar years 1952-1955, published by the Civil Aeronautics Administration, U.S. Depart

ment of Commerce, and any subsequent editions thereof published by the Federal Aviation Agency.

20. Population Volumes I and II of the Eighteenth (1960) Census of the United States, issued by the Census Bureau, Department of Commerce; and similar publications of the Census Bureau relating to the Seventeenth (1950) Census.

21. The Rand McNally Commercial Atlas and Marketing Guide, from 1958, and the Rand McNally Road Atlas, United States, Canada, and Mexico, from 1956.

22. Survey of Buying Power, from 1955, published by Sales Management Magazine. 23. Volumes II and III of the Census of Manufacturers, 1954, issued by the Bureau of Census of the U.S. Department of Commerce; and similar publications of the Bureau of the Census relating to the 1947 and 1958 Census of Manufacturers.

24. Volumes II, IV, and VI of the Census of Business, 1954, issued by the Bureau of the Census of the U.S. Department of Commerce; and similar publications of the Bureau of the Census relating to the 1948 and 1958 Census of Business.

25. Federal Airways Air Traffic Activity, from 1953-1956 (fiscal year) issued by the Civil Aeronautics Administration, U.S. Department of Commerce, and subsequent editions thereof issued by the Federal Aviation Agency.

26. National Airport Plan, from 1956, Civil Aeronautics Administration, U.S. Department of Commerce and subsequent editions thereof issued by the Federal Aviation Agency.

27. Record of Airport Facilities, Form ACA-29A, issued by the Civil Aeronautics Administration, U.S. Department of Commerce and by the Federal Aviation Agency.

28. International Section, Airline Traffic Surveys prepared by the Civil Aeronautics Board from March and September 1952, and any such surveys issued or otherwise made available to the parties by the Civil Aeronautics Board or published privately.

29. The ABC World Airways Guide. Thomas Skinner and Co., Ltd., from June 1950.

30. ICAO Statistical Summary, Preliminary Issue and Nos. 1 through 14, and Digest of Statistics, Nos. 15 through 71, prepared by the International Civil Aviation Organization, Montreal, Canada, with all changes and additions.

31. Foreign-Commerce Yearbook, from 1951, U.S. Department of Commerce, office of International Trade.

32. Statistical Abstract of the United States, from 1953, U.S. Department of Commerce, Bureau of Census.

33. Yearbook of International Trade Statistics, from 1956.

34. Annual Reports of the Immigration and Naturalization Service, U.S. Department of Justice, from fiscal year ended June 30, 1945.

35. Official Steamship and Airways Guide International. Transportation Guides, Inc., from June 1945.

36. The Airman's Guide, from 1950, issued by the Civil Aeronautics Administration, U.S. Department of Commerce, and any subsequent editions thereto, issued by the Federal Aviation Agency.

37. Plant and Product Directory of the 500 Largest U.S. Industrial Corporations, from 1961, published by Time Inc.

38. Thomas' Register of American Manufacturers, from 1955, published by Thomas Publishing Company.

39. First and Second Class Post Offices, July 1, 1939-July 1, 1946 and Receipts and Classes of Post Offices, from July 1, 1947, issued by the U.S. Post Office Department.

40. Quarterly Report on Federal Aid to Highways, from March 1960, issued by the Bureau of Public Roads of the U.S. Department of Commerce.

41. All forms and reports required by the Post Office Department to be filed by air carriers certificated to transport mail.

42. All orders of the Postmaster General designating schedules for the transporation of mail.

43. Handbook of Airline Statistics from 1961, prepared by the Bureau of Accounts and Statistics, Civil Aeronautics Board.

(2) Any fact contained in a document belonging to a category enumerated in subparagraph (1) of this paragraph shall be deemed to have been physically incorporated into and made part of the record in such proceedings. However, such taking of official notice shall be subject to the rights granted to any party or intervener to the proceeding under section 7(d) of the Administrative Procedure Act.

(3) The decisions of the Board and its examiners may officially notice any appropriate matter without regard to whether or not such items are contained in a document belonging to the cate gories enumerated in subparagraph (1) of this paragraph. However, where the decision rests on official notice of a material fact or facts, it will set forth such items with sufficient particularity to advise interested persons of the matters which have been noticed.

[PR-70, 27 F.R. 12545, Dec. 19, 1962. as amended by PR-100, 31 F.R. 13943, Nov. 1, 1966]

§ 302.25 Argument before the exam. iner.

(a) The examiner shall give the parties to the proceeding adequate opportunity during the course of the hearing for the presentation of arguments in support of or in opposition to motions,

and objections and exceptions to rulings of the examiner.

(b) When, in the opinion of the examiner, the volume of the evidence or the importance or complexity of the issues involved warrants, he may, either of his own motion, or at the request of a party, permit the presentation of oral argument. He may impose such time limits on the argument as he may determine, having regard for other assignments for hearing before him. Such argument shall be transcribed and bound with the transcript of testimony and will be available to the Board for consideration in deciding the case.

§ 302.26 Proposed findings and conclusions before the examiner or the Board.

Within such limited time after the close of the reception of evidence fixed by the examiner, any party may, upon request and under such conditions as the examiner may prescribe, file for his consideration briefs to include proposed findings and conclusions of law which shall contain exact references to the record and authorities relied upon. The provisions of this section shall be applicable to proceedings in which the record is certified to the Board without the preparation of an initial or recommended decision by the examiner.

§ 302.27 Delegation to examiners and action by examiners after hearing.

(a) Delegation of authority to make the agency decision subject to discretionary review. Pursuant to the authority conferred on the Board and the Chairman of the Board by Reorganization Plan No. 3 of 1961, 26 F.R. 5989, there is hereby delegated to each hearing examiner assigned to a particular case subject to this part the Board's function of making the agency decision on the substantive and procedural issues remaining for disposition at the close of the hearing in such case, except that this delegation does not apply in cases where the record is certified to the Board, with or without a recommended decision by the examiner, or in cases requiring Presidential approval under section 801 of the Act. This delegation does not apply to the review of rulings by the examiner on interlocutory matters which have been appealed to the Board in accordance with the requirements of § 302.18. The term "initial decision," as used in this part, shall encompass the examiner's

decision pursuant to this delegation of authority on the merits of the proceeding and on all ancillary procedural issues remaining for disposition at the close of the hearing.

(b) Action by examiner after hearing. (1) Every initial or recommended decision issued shall state the names of the persons who are to be served with copies of it, the time within which exceptions to, or petitions for review of, such decision may be filed, and the time within which briefs in support of the exceptions may be filed. In addition, every initial decision shall recite that it is made under delegated authority, and contain notice of the provisions of paragraph (c) of this section. In the event the examiner certifies the record to the Board without an initial or recommended decision, he shall notify the parties of the time within which to file proposed findings and conclusions with the Board and supporting briefs.

(2) Except where the Board directs otherwise, after the taking of evidence and the receipt of proposed findings and conclusions, if any, the examiner shall take the following action:

(i) Cases subject to section 801 of the Act. In cases where the action of the Board is subject to the approval of the President pursuant to section 801 of the Act, the examiner shall render a recommended decision orally on the record or in writing.

(ii) Other matters. If the proceeding relates to any matter not provided for in subdivision (1) of this subparagraph, the examiner shall render an initial decision in writing.

(c) Effect of initial decision. Unless a petition for discretionary review is filed pursuant to § 302.28 or the Board issues an order to review upon its own initiative, the initial decision shall become effective as the final order of the Board 30 days after service thereof. If a petition for discretionary review is timely filed or action to review is taken by the Board upon its own initiative, the effectiveness of the initial decision is stayed until the further order of the Board.

§ 302.28 Petitions for discretionary review of initial decisions; review proceedings.

(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 may file and serve a petition for discretionary review by the Board of an initial decision within 25 days after service thereof. Such petitions shall be accompanied by proof of service on all parties.

(2) Petitions for discretionary review shall be filed only upon one or more of the following grounds:

(i) 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 occured.

(3) Each issue shall be separately numbered and plainly and concisely stated. Petitioners shall not restate the same point in repetitive discussions of an issue. Each issue shall be supported by detailed citations of the record when objections are based on the record, and by statutes, regulations or principal authorities relied upon. Any matters of fact or law not argued before the examiner, but which the petitioner proposes to argue on brief to the Board, shall be stated.

(4) Petitions for discretionary review shall be self-contained and shall not incorporate by reference any part of another document. Except by permission of the Board or the Chief Examiner, petitions shall not exceed 20 pages including appendices and other papers physically attached to the petition. Petitions of more than 10 pages shall contain a subject index with page references.

(5) Requests for oral argument on petitions for discretionary review will not be entertained by the Board.

(b) Answer. Within 15 days after service of a petition for discretionary review, any party may file and serve an answer of not more than 15 pages in support of or in opposition to the petition. If any party desires to answer more than one petition for discretionary review in the same proceeding, he shall do so in a single document of not more than 20 pages.

(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 reconsidera

tion 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.

[PR-70, 27 F.R. 12545, Dec. 19, 1962, as amended by PR-78, 28 F.R. 2898, Mar. 23, 1963; PR-100, 31 F.R. 13943, Nov. 1, 1966] § 302.29 Tentative decision of 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 filled, the time within which briefs in support of the exceptions may be filed, and the date