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ment of Commerce, and any subsequent 35. Official Steamship and Airways Guide editions thereof published by the Federal International. Transportation Guides, Inc., Aviation Agency.

from June 1945. 20. Population Volumes I and II of the 36. The Airman's Guide, from 1980, 18sued Eighteenth (1960) Census of the United by the Civil Aeronautics Administration, U.S. States, issued by the Census Bureau, Depart Department of Commerce, and any subsement of Commerce; and similar publications quent editions thereto, issued by the Federal of the Census Bureau relating to the Sev Aviation Agency. enteenth (1950) Census.

37. Plant and Product Directory of the 21. The Rand McNally Commercial Atlas 500 Largest U.S. Industrial Corporations, and Marketing Guide, from 1958, and the from 1961, published by Time Inc. Rand McNally Road Atlas, United States, 88. Thomas' Register of American Manu. Canada, and Mexico, from 1956.

facturers, from 1955, published by Thomas 22. Survey of Buying Power, from 1955, Publishing Company. published by Sales Management Magazine, 39. First and Second Class Post Offices,

23. Volumes II and III of the Census of July 1, 1939-July 1, 1946 and Receipts and Manufacturers, 1954, issued by the Bureau Classes of Post Offices, from July 1, 1947, is. of Census of the U.S. Department of Com sued by the U.S. Post Office Department. merce; and similar publications of the 40. Quarterly Report on Federal Aid to Bureau of the Census relating to the 1947 Highways, from March 1960, issued by the and 1958 Census of Manufacturers.

Bureau of Public Roads of the U.S. Depart24. Volumes II, IV, and VI of the Census

ment of Commerce. of Business, 1954, issued by the Bureau of

41. All forms and reports required by the the Census of the U.S. Department of Com Post Office Department to be filled by alr merce; and similar publications of the carriers certificated to transport mail. Bureau of the Census relating to the 1948 42. All orders of the Postmaster General and 1958 Census of Business.

designating schedules for the transporation 25. Federal Airways Air Traffic Activity,

of mail. from 1953-1956 (fiscal year) issued by the 43. Handbook of Airline Statistics from Civil Aeronautics Administration, U.S. De 1961, prepared by the Bureau of Accounts and partment of Commerce, and subsequent Statistics, Civil Aeronautics Board. editions thereof issued by the Federal Avia

(2) Any fact contained in a document tion Agency 26. National Airport Plan, from 1956, Civil

belonging to a category enumerated in Aeronautics Administration, U.S. Depart

subparagraph (1) of this paragraph shall ment of Commerce and subsequent editions

be deemed to have been physically inthereof issued by the Federal Aviation corporated into and made part of the Agency.

record in such proceedings. However, 27. Record of Alrport Facilities, Form such taking of official notice shall be ACA-29A, issued by the Civil Aeronautics

subject to the rights granted to any party Administration, U.S. Department of Commerce and by the Federal Aviation Agency.

or intervener to the proceeding under 28. International Section, Airline Trafic

section 7(d) of the Administrative Surveys prepared by the Civil Aeronautics

Procedure Act. Board from March and September 1952, (3) The decisions of the Board and and any such surveys issued or other its examiners may oficially notice any wise made available to the parties by the appropriate matter without regard to Civil Aeronautics Board or published pri whether or not such items are contained vately.

in a document belonging to the cate29. The ABC World Alrways Guide. Thomas Skinner and Co., Ltd., from June

gories enumerated in subparagraph (1) 1950.

of this paragraph. However, where the 30. ICAO Statistical Summary, Preliminary decision rests on official notice of a mateIssue and Nos. 1 through 14, and Digest of rial fact or facts, it will set forth such Statistics, Nos. 15 through 71, prepared by items with sufficient particularity to adthe International Civil Aviation Organiza

vise interested persons of the matters tion, Montreal, Canada, with all changes and

which have been noticed. additions. 31. Foreign-Commerce Yearbook, from 1951,

(PR-70, 27 F.R. 12545, Dec. 19, 1962. as U.S. Department of Commerce, otice of In amended by PR-100, 31 F.R. 13943, Nov. 1, ternational Trade.

1966) 32. Statistical Abstract of the United

8 302.25 Argument before the exam. States, from 1953, U.S. Department of Com

iner. merce, Bureau of Census.

33. Yearbook of International Trade Sta. (a) The examiner shall give the tistics, from 1956.

parties to the proceeding adequate op34. Annual Reports of the Immigration

portunity during the course of the hearand Naturalization Service, U.S. Department of Justice, from fiscal year ended June 30,

ing for the presentation of arguments 1945.

in support of or in opposition to motions,

and objections and exceptions to rulings decision pursuant to this delegation of of the examiner.

authority on the merits of the proceed(b) When, in the opinion of the exam ing and on all ancillary procedural issues iner, the volume of the evidence or the remaining for disposition at the close of importance or complexity of the issues the hearing. involved warrants, he may, either of his (b) Action by examiner after hearing. own motion, or at the request of a party, (1) Every initial or recommended depermit the presentation of oral argu cision issued sliall state the names of the ment. He may impose such time limits persons who are to be served with copies on the argument as he may determine, of it, the time within which exceptions having regard for other assignments for to, or petitions for review of, such dehearing before him. Such argument cision may be filled, and the time within shall be transcribed and bound with the which briefs in support of the exceptranscript of testimony and will be avail tions may be filed. In addition, every able to the Board for consideration in initial decision shall recite that it is deciding the case.

made under delegated authority, and

contain notice of the provisions of para§ 302.26 Proposed findings and conclusions before the examiner or the

graph (c) of this section. In the event Board.

the examiner certifies the record to the

Board without an initial or recomWithin such limited time after the

mended decision, he shall notify the close of the reception of evidence fixed

parties of the time within which to file by the examiner, any party may, upon

proposed findings and conclusions with request and under such conditions as

the Board and supporting briefs. the examiner may prescribe, file for

(2) Except where the Board directs bis corsideration briefs to include pro

otherwise, after the taking of evidence posed findings and conclusions of law

and the receipt of proposed findings and which shall contain exact references to

conclusions, if any, the examiner shall the record and authorities relied upon.

take the following action: The provisions of this section shall be

(i) Cases subject to section 801 of the applicable to proceedings in which the

Act. In cases where the action of the record is certified to the Board without

Board is subject to the approval of the the preparation of an initial or recom

President pursuant to section 801 of the mended decision by the examiner.

Act, the examiner shall render a recom§ 302.27 Delegation to examiners and mended decision orally on the record or

action by examiners after hearing. in writing. (a) Delegation of authority to make

(ii) Other matters. If the proceeding the agency decision subject to discre

relates to any matter not provided for tionary review. Pursuant to the author

in subdivision (1) of this subparagraph, ity conferred on the Board and the

the examiner shall render an initial deChairman of the Board by Reorganiza

cision in writing. tion Plan No. 3 of 1961, 26 F.R. 5989,

(c) Effect of initial decision. Unless there is hereby delegated to each hear

à petition for discretionary review is ing examiner assigned to a particular

filed pursuant to $ 302.28 or the Board

issues an order to review upon its own case subject to this part the Board's function of making the agency decision

initiative, the initial decision shall beon the substantive and procedural issues

come effective as the final order of the remaining for disposition at the close of

Board 30 days after service thereof. If the hearing in such case, except that this

à petition for discretionary review is delegation does not apply in cases where

timely filed or action to review is taken the record is certified to the Board, with

by the Board upon its own initiative, the

effectiveness of the initial decision is or without a recommended decision by the examiner, or in cases requiring Pres

stayed until the further order of the

Board. idential approval under section 801 of the Act. This delegation does not apply 8 302.28 Petitions for discretionary reto the review of rulings by the examiner view of initial decisions; review proon interlocutory matters which have ceedings. been appealed to the Board in accord (a) Petitions for discretionary review. ance with the requirements of $ 302.18. (1) Review by the Board pursuant to this The term "initial decision,” as used in section is not a matter of right but of the this part, shall encompass the examiner's sound discretion of the Board. Any

party may file and serve a petition for tion of a Board order declining review discretionary review by the Board of an will be entertained only when the order initial decision within 25 days after sery exercises, in part, the Board's right of ice thereof. Such petitions shall be review, and such petition shall be limited accompanied by proof of service on all to the single question of whether any parties.

issue designated for review and any issue (2) Petitions for discretionary review not so designated are so inseparably inshall be filed only upon one or more of

terrelated that the former cannot be rethe following grounds:

viewed independently or that the latter (i) A finding of a material fact is cannot be made effective before the final erroneous;

decision of the Board in the review (ii) A necessary legal conclusion is proceeding. without governing precedent or is a de (d) Review proceedings. (1) The parture from or contrary to law, Board Board will exercise its right of review rules, or precedent;

upon petition for review or on its own (iii) A substantial and important initiative when two or more Board memquestion of law, policy or discretion is bers vote in favor of review. The Board involved; or

will issue a final order upon such re(iv) A prejudicial procedural error view without further proceedings on any has occured.

or all the issues where it finds that mat(3) Each issue shall be separately ters raised do not warrant further numbered and plainly and concisely proceedings. stated. Petitioners shall not restate the (2) Where the Board desires further same point in repetitive discussions of an proceedings, the Board will issue an issue. Each issue shall be supported by

order for review which will: detailed citations of the record when ob (i) Specify the issues to which review jections are based on the record, and by

will be limited. Such issues shall constatutes, regulations or principal author stitute one or more of the issues raised ities relied upon. Any matters of fact or in a petition for discretionary review law not argued before the examiner, but

and/or matters which the Board desires which the petitioner proposes to argue

to review on its own initiative. Only on brief to the Board, shall be stated. those issues specified in the order shall (4) Petitions for discretionary review

be argued on brief to the Board, pursuant shall be self-contained and shall not to § 302.31, and considered by the Board. incorporate by reference any part of an

(ii) Specify the portions of the exother document. Except by permission

aminer's decision, if any, which are to of the Board or the Chief Examiner, peti be stayed as well as the effective date tions shall not exceed 20 pages including of the remaining portions thereof. appendices and other papers physically (iii) Designate the parties to the reattached to the petition. Petitions of

view proceeding. more than 10 pages shall contain a sub [PR-70, 27 F.R. 12545, Dec. 19, 1962, as ject index with page references.

amended by PR-78, 28 F.R. 2898, Mar. 23, (5) Requests for oral argument on

1963; PR-100, 31 F.R. 13943, Nov. 1, 1966) petitions for discretionary review will not $ 302.29 Tentative decision

of the be entertained by the Board.

Board. (b) Answer. Within 15 days after

(a) Except as provided in paragraph service of a petition for discretionary

(b) of this section, whenever the review, any party may file and serve an

examiner certifies the record in a proanswer of not more than 15 pages in

ceeding directly to the Board without support of or in opposition to the peti

issuing an initial or recommended de. tion. If any party desires to answer

cision in the matter, the Board shall, more than one petition for discretionary after consideration of any proposed finde: review in the same proceeding, he shall

ings and conclusions submitted by the do so in a single document of not more

parties, prepare a tentative decision and than 20 pages.

serve it upon the parties. Every tenta-, (c) Orders declining review. Board

tive decision of the Board shall state the orders declining to exercise the Board's

names of the persons who are to receive right of review will specify the date upon copies of it, the time within which excepwhich the examiner's decision shall be tions to such decision may be filed, the come effective as the final decision of time within which briefs in support of the Board. A petition for reconsidera the exceptions may be filed, and the data

vhen such decision will become final in decision and in opposition to the excepthe absence of exceptions thereto. I tions filed by any other party. no exceptions are filled to the tentative

§ 302.31 Briefs before the Board. decision of the Board within the period ixed (which in no event shall be less (a) Time for filing. Within such han 10 days), it shall become final at period after the date of service of any he expiration of such period unless the recommended decision of an examiner or Board orders otherwise.

tentative decision by the Board as may (b) Notwithstanding the provisions of

be fixed therein, any party may file a paragraph (a) of this section, in rule brief addressed to the Board, in support naking proceedings or proceedings of his exceptions to such decision or in determining applications for initial li opposition to the exceptions filed by any enses, the Board may omit a tentative othe: party. Briefs to the Board on inidecision in any case in which it finds tial decisions of examiners shall be filed ipon the record that due and timely only in those cases where the Board xecution of its functions imperatively

grants discretionary review and orders ind unavoidably so requires.

further proceedings, pursuant to § 302.

28(d) (2), and only upon those issues 302.30 Exceptions to recommended

specified in the order. Such briefs shall decisions of examiners or tentative

be filed within 30 days after date of the decisions of the Board.

order granting discretionary review. In (a) Time for filing. Within ten (10) cases where, because of the limited numlays after service of any recommended ber of parties and the nature of the islecision of an examiner or tentative de sues, the filing of opening, answering and ision of the Board, any party to a pro reply briefs will not unduly delay the eeding may file exceptions to such de proceeding and will assist in its proper ision with the Board.

disposition, the Board or the examiner (b) Form and contents of exceptions. (where the examiner's decision was not Cach exception shall be separately num made under delegated authority) may sered and shall be stated as a separate direct that the parties file briefs at difvoint, and appellants shall not restate ferent times rather than at the same he same point in several repetitive ex time. eptions. Each exception shall state, (b) Effect of failure to restate objecufficiently identify, and be limited to, an tions in briefs. In determining the atimate conclusion in the decision to merits of an appeal, the Board will not vhich exception is taken (such as, selec consider the exceptions or the petition ion of one carrier rather than another for discretionary review but will consider o serve any point or points; points in only the brief. Each objection contained luded in or excluded from a new route; in the exceptions or each issue specified mposition or failure to impose a given in the Board's order exercising discreestriction; determination of a rate at tionary review must be restated and supgiven amount rather than another). ported by a statement and adequate disTo specific exception shall be taken with cussion of all matters relied upon, in a espect to underlying findings or state brief filed pursuant to and in compliance nents, but exceptions to an ultimate with the requirements of this section. onclusion shall be deemed to include (c) Formal specifications of briefs.xceptions to all underlying findings and (1) Contents. Each brief shall discuss tatements pertaining thereto. Pro every point of law and fact which the lided, however, That exceptions shall party submitting it is entitled to raise (pecify any matters of law, fact or policy pursuant to this part and any pertinent thich were not argued before the exam order of the Board, and which he desires ner but will be set forth for the first

the Board to consider. Support and ime on brief to the Board.

justification for every such point shall

include itemized references to the pages (c) Effect of failure to file timely and

of the transcript of hearing, exhibit or dequate exceptions. No objection may

other matter of record, and citations of e made on brief or at a later time to an

the statutes, regulations or principal auItimate conclusion which is not ex thorities relied upon. If a brief or any ressly made the subject of an exception

point discussed therein is not in subcompliance with the provisions of this

stantial conformity with the requirement ection. Provided, however, That any for such support and justification, no arty may file a brief in support of the motion to strike or dismiss such docu66-031-67-25

379

ment shall be made but the Board may herein "material” includes, but is not disregard the points involved.

limited to, maps, charts included in (2) Incorporation by reference. briefs, and exhibits which are enlarged Briefs to the Board shall be completely and used for demonstration purposes at self-contained and shall not incorporate the argument, but does not include the by reference any portion of any other enlargements of such exhibits. brief or pleading: Provided, however, (PR-100, 31 F.R. 13943, Nov. 1, 1966) That in lieu of submitting a brief to the

& 302.33 Waiver of procedural steps Board a party may adopt by reference

after hearing. specifically identified pages or the whole of his prior brief to the examiner. In The parties to any proceeding may such cases, the party may file with the agree to waive any one or more of the Docket Section a letter exercising this following procedural steps provided in privilege and serve all parties in the same $8 302.25 through 302.32: Oral argument manner as a brief to the Board.

before the examiner, the filing of pro(3) Length and index. Briefs shall posed findings and conclusions for the comply with the formal specifications set examiner or for the Board, a recomforth in § 302.3(b). Except by permis mended decision of the examiner, a tension or direction of the Board or the tative decision of the Board, exceptions Chief Exan ner, briefs shall not exceed to a recommended decision of the exam50 pages including those pages contained iner or a tentative decision of the Board, in any appendix, table, chart, or other a petition for discretionary review of an document physically attached to the initial decision, the filing of briefs with brief, except maps. In this case "map" the Board, or oral argument before the means only those pictorial representa Board. tions of routes, flight paths, mileage, and

8 302.35 Shortened procedure. similar ancillary data that are superimposed on geographic drawings and con In cases where a hearing is not retain only such text as is needed to ex quired by law, $$ 302.23 through 302.33, plain the pictorial representation. Any relating to prehearing, hearing, and brief that exceeds 10 pages shall con

post-hearing procedures, shall not be tain a subject index of its contents, in applicable except to the extent that the cluding page references.

Board shall determine that the applica(PR-100, 31 F.R. 13943, Nov. 1, 1966)

tion of some or all of such rules in the

particular case will be conducive to the § 302.32 Oral argument before the Board.

proper dispatch of its business and to

the ends of justice. (a) If any party desires to argue a case orally before the Board, he shall re

8 302.36 Final decision of the Board. quest leave to make such argument in his When a case stands submitted to the exceptions or brief. Such request shall Board for final decision on the merits, be filed no later than the date when the Board will dispose of the issues prebriefs before the Board are due in the sented by entering an appropriate order proceeding. The Board will rule on such which will include a statement of the request, and if oral argument is to be reasons for its findings and conclusions. allowed, all parties to the proceeding will Such orders shall be deemed "final or be advised of the date and hour set for ders" within the purview of $ 302.37(8). such argument and the amount of time allowed to each party. Requests for oral

8 302.37 Petitions for reconsideration, argument on petitions for discretionary

(a) Board orders subject to reconsidreview will not be entertained.

eration; time for filing. Unless an order (b) Pamphlets, charts, and other

or a rule of the Board specifically prowritten data may be presented to the vides otherwise, any party to a proceedBoard at oral argument only in ac ing may file a petition for reconsideracordance with the following rules: All

tion, rehearing or reargument of (1) a such material shall be limited to facts

final order issued by the Board or (2) in the record of the case being argued. an interlocutory order issued by the All such material shall be served on all Board which institutes a proceeding or parties to the proceeding and eight copies defines the scope and issues of a proceedtransmitted to the Docket Section of the

ing or suspends a provision of a tariff on Board at least five (5) calendar days in Ale with the Board. Unless the time is advance of the argument. As used shortened or enlarged by the Board,

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