Imágenes de páginas

ters of fact stated in the request with respect to such documents. Each of the matters of which an admission is requested shall be deemed admitted unless within a period designated in the request, niot less than ten (10) days after service thereof, or within such further time as the Board or the examiner may allow upon motion and notice, the party to whom the request is directed serves upon the requesting party a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny such matters. Service of such request and answering statement shall be made as provided in § 302.8. Any admission made by a party pursuant to such request is only for the purposes of the pending proceeding, or any proceeding or action instituted for the enforcement of any order entered therein, and shall not constitute an admission by him for any other purpose or be used against him in any other proceeding or action. § 302.213 Hearing.

After the issues have been formulated, whether by the pleadings or otherwise, the examiner or the Board shall give the parties reasonable written notice of the time and place of the hearing. 8 302.214 Appearances by persons not

parties. With consent of the examiner or the Board, appearances may be entered without request for or grant of permission to intervene by interested persons who are not parties to the proceeding. Such persons may, with consent of the examiner or the Board, cross-examine a particular witness or suggest to any party or counsel therefor questions or interrogations to be propounded to witnesses called by any party, but may not otherwise examine witnesses and may not introduce evidence or otherwise participate in the proceeding. However, such persons may present to both the examiner and the Board an oral or written statement of their position on the issues involved in the proceeding. § 302.215 Offers of settlement.

Any party to an economic enforcement proceeding at any time prior to final decision thereof may submit offers of settlement or proposals of adjustment. Each such offer or proposal shall be sub

mitted in writing and addressed to the Director of the Bureau of Enforcement, who will promptly advise the party or parties submitting same whether he will recommend acceptance thereof to the Board. If the Director of the Bureau of Enforcement advises the party or parties that he will not recommend acceptance, and the party or parties so request in writing, he will transmit such offer or proposal directly to the Board for its consideration and acceptance or rejection. The submission of such offer or proposal shall not alter or delay the course of the proceeding unless so ordered by the Board. & 302.216 Evidence of previous viola

tions. Evidence of previous violations by any person of any provision of the act or any requirement thereunder found by the Board or a court in any other proceeding or criminal or civil action may, if relevant and material, be admitted in any enforcement proceeding involving such person. 8 302.217 Motions for immediate sus

pension of operating authority pen

dente lite. All motions for the suspension of the economic operating authority of an air carrier during the pendency of proceedings to revoke such authority shall be filed with, and decided by the Board. Proceedings on the motion shall be in accordance with $ 302.18. In addition, the Board shall afford the parties an opportunity for oral argument on such motion. Subpart C-Rules Applicable to Mail

Rate Proceedings § 302.300 Applicability of this subpart.

This subpart sets forth the special rules applicable to proceedings for the establishment of mail rates by the Board. For information as to other applicable rules, reference should be made to Subpart A of this part, to the Federal Aviation Act, and to the substantive rules, regulations and orders of the Board. § 302.301 Parties to the proceeding.

The parties to the proceeding shall be the air carrier or carriers for whom rates are to be fixed, the Postmaster General, bureau counsel, and any other person whom the Board permits to intervene. (See § 302.15.)

[ocr errors]



Postmaster General as required by this

section. The petition need not be accom§ 302.302 Participation by persons other than parties.

panied by any further proof of service,

but, upon setting any petition down for In addition to participation in hear

public hearing, the Board will cause noings in accordance with § 302.14, persons

tice of such hearing to be given to such other than parties may, within the time

interested persons as it deems approprifixed for filing notice of objections to an

ate in the particular case. order to show cause in a mail rate pro

(PR-70, 27 F.R. 12545, Dec. 19, 1962, as ceeding as provided in § 302.305, submit

amended by PR-100, 31 FR. 13943, Nov. 1, a memorandum of opposition to, or in 1966) support of, the position taken in the

PROCEDURE WHEN AN ORDER TO SHOW petition or order. Such memorandum shall not be received as evidence in the

CAUSE IS ISSUED proceeding.

& 302.304 Order to show cause. $ 302.303 Institution of proceedings. Whether the proceeding is commenced Proceedings for the determination of

by the filing of a petition or upon the rates of compensation for the transpor

Board's own initiative, the Board may tation of mail may be commenced by the

issue an order directing the respondent filing of a petition by an air carrier

to show cause why the Board should not whose rate is to be fixed, or the Post

adopt such provisional findings and con. master General, or upon the issuance of

clusions, and such rates, as may be an order by the Board.

specified in the order to show cause. (a) The petition shall set forth the § 302.305 Objections and

to rate or rates sought to be established, a order to show cause. statement that they are believed to be fair and reasonable, the reasons sup

(a) Any person having objections to

the provisional rates specified in such porting the request for a change in rate,

order shall file with the Board a notice and a detailed economic justification suficient to establish the reasonableness

of objection within ten (10) days after of the rate or rates proposed.

the date of service of such order.

(b) If such notice is filed as aforesaid, (b) In any case where a carrier is operating under a final mail rate uniformly

written answer and any supporting docu

ments shall be filed within thirty (30) applicable to an entire rate-making unit

days after the service of the order to as established by the Board, a petition

show cause. The Board may specify must clearly and unequivocally challenge

different times for filing a notice of obthe rate for such entire rate-making unit

jection or an answer. An answer to and not only a part of such unit: Pro

an order to show cause shall contain vided, however, That this rule shall not

specific objections, and exhibits in supapply (1) to petitions seeking equaliza

port thereof, and shall set forth the findtion of service mail rates to a lower com

ings and conclusions, the rates, and the petitive level in order to participate in

supporting exhibits which would be subthe carriage of mail between specific

stituted for the corresponding items in points or (2) to petitions by local service air carriers for ad hoc adjustments pur

the Statement of Provisional Findings

and Conclusions, if such objections were suant to provisions therefor in local serv

found valid. ice class subsidy rates. Unless a petition

(c) A notice or answer filed by a perclearly and unequivocally requests review

son who is neither a party nor a person of the rate for the entire rate-making

ultimately permitted to intervene shall unit, it shall be dismissed. No amend

be treated as a memorandum filed under ment intended to cure the omission shall

§ 302.302. be given retroactive effect. (c) All petitions, amended petitions,

$ 302.306 Effect of failure to file notice and documents relating thereto shall be

or answer. served upon the Postmaster General by If no notice, or if after notice, no sending a copy to him by registered or answer is filed within the designated certified mail, postpaid, prior to the filing time, all parties shall be deemed to have thereof with the Board. Proof of service waived the right to a hearing and all on the Postmaster General shall consist other procedural steps short of a final of a statement in the document that the decision of the Board fixing rates, and person filing it has served a copy on the the Board may thereupon, upon the basis

of all of the documents filed in the pro service mail rates must be filed by any ceeding, enter a final order fixing the party or petitioner for intervention with. fair and reasonable rate or rates as in 8 days, and an answer within 15 days, specified in the order to show cause. of the time such order is served;

(2) Failure to file notice of objections § 302.307 Procedure after answer.

within the 8-day period shall be deemed If an answer is filed within the time to be a waiver of all further procedural design ted in the Board's order, a pre steps before final decision, including hearing conference and hearing shall be hearing and initial or tentative decision, held unless waived by all parties. The and the proceeding will stand submitted issues shall be limited to those specifi to the Board for final decision. cally raised by the answer, except that at (3) In the absence of a convincing the prehearing conference, the examiner

showing that it will result in substantial may permit the parties to raise such ad

prejudice to any party or delay the proditional issues as he deems necessary to

ceeding, the examiner shall require the & full and fair determination of a fair

parties to submit all their testimony in and reasonable rate. (Reference should

writing and shall closely limit crossbe made to Subpart A of this part for rules applicable to hearings.)

examination to the essential issues

(bearing in mind the purpose and ur§ 302.308 Evidence.

gency of fixing temporary mail rates toAll direct evidence shall be in writing gether with the fact that such temporary and shall be filed in exhibit form in ad rates are subject to downward or upward vance of the hearing unless, for good adjustment upon the fixing of final cause shown, the examiner otherwise rates), and shall in all other respects directs.

urgently expedite the proceeding. PROCEDURE WHEN NO ORDER TO SHOW (c) Temporary subsidy mail rates: CAUSE IS ISSUED

The procedure for determining tempo

rary mail rates involving an issue as to § 302.309 Hearing to be ordered.

the subsidy mail rates payable by the When no order to show cause is to be

Board pursuant to section 406(c) shall issued by the Board, the Board will order

be the same as for the determination of a hearing before an examiner similar to

temporary service mail rates pursuant that provided for in $$ 302.307 and

to paragraph (b) of this section except 302.308, except that the issues at such

that: hearing shall be formulated initially at a

(1) After the filing of answers (if any) prehearing conference.

the Board may in its discretion (i) issue TEMPORARY RATE PROCEEDINGS

a final order establishing temporary $ 302.310 Procedure for fixing tem

mail rates at the same level as that proporary service and subsidy mail rates.

posed in the show cause order, or a dif

ferent level, (ii) set the matter down (a) At any time during the pendency for an evidentiary hearing before an of a proceeding for the determination of

examiner, or (iii) notice the matter for final mail rates, the Board, upon its own oral argument before the Board. initiative, or on petition by the carrier

Neither oral argument nor an evidenwhose rates are in issue or the Post

tiary hearing will be granted except upon master General, may fix temporary rates a showing, set forth in the answer, (a) of compensation for the transportation that the case presents major issues of of mail subject to downward or upward

fact or policy which cannot fairly be adjustment upon the determination of

resolved on the basis of written docufinal mail rates. (b) Temporary service mail rates:

ments, and (b) that the establishment The procedure for determining tempo

of the rates proposed in the show cause rary mail rates involving an issue as to

order would have a critical impact on the service mail rates payable by the

the carrier by reason of its immediate Postmaster General pursuant to section and pressing cash requirements. In the 406(c) of the Act shall be the same as case of requests for evidentiary hearing, for the determination of final mail rates, the answer shall set forth in detail the except that:

nature of the evidence which the party (1) Notice of objections to the Board's requesting hearing would submit if hearshow cause order proposing temporary ing were granted.

(2) The following procedure shall be tion of its final order in any case where applicable in the event that the matter is it has issued a tentative decision. A peset down for evidentiary hearing pur tition for reconsideration may be filed in suant to subparagraph (1) (ii) of this any case where the Board has issued & paragraph:

final order pursuant to subparagraph (i) Unless the Board's order setting (1) (i) of this paragraph or subdivision the case for hearing provides otherwise, (iii) of this subparagraph, which preor unless prehearing conference is scribes rates different from those prowaived by all the parties, a prehearing posed in the order to show cause. conference shall be held not later than (3) The pendency of any motion or the eighth day following the date of serv petition in a temporary subsidy mail rate -ice of such order. Any requests for ex proceeding shall not be grounds for detension of the date of the prehearing ferring procedural dates. conference shall be made in the answer

INFORMAL MAIL RATE CONFERENCE to the show cause order and shall con

PROCEDURE tain a showing of exceptional circumstances necessitating extension of the

§ 302.311 Invocation of procedure. prehearing date.

Conferences between members of the (ii) The hearing shall commence no Board's staff, representatives of air carlater than the fifteenth day after the riers, the Post Office Department and date of the prehearing conference. Any other interested persons may be called requests for extension of the date of the by the Board's staff for the purpose of hearing shall be made by motion and considering and clarifying issues and shall contain a showing of exceptional factual material in pending proceedings circumstances necessitating extension of for the establishment of rates for the the hearing date.

transportation of mail. (iii) Upon the conclusion of the hear

$ 302.312 Scope of conferences. ing, the examiner shall immediately certify the entire record to the Board. The mail rate conferences shall be Proposed findings and conclusions and limited to the discussion of, and possible supporting briefs with reasons why the agreement on, particular issues and reBoard should or should not issue a ten lated factual material in accordance tative decision shall be filed with the

with sound rate-making principles. The Board within ten days of the date of the

duties and powers of the Board's staff in conclusion of the hearing. The Board

rate conferences essentially will not be

different, therefore, from the duties and may thereupon issue a tentative decision

powers it has in the processing of rate or may at once issue its final decision

cases not involving a rate conference. establishing temporary subsidy mail

The staff function in both instances is to rates.

present clearly to the Board the issues (iv) In the event that the Board issues

and the related material facts, together a tentative decision, the parties may not

with recommendations. The Board will file separate exceptions and briefs, but

make an independent determination of may file in lieu thereof exceptions and

the soundness of the staff's analyses and briefs in support thereof in one docu

recommendations. ment. Such documents shall be filed within 10 days of service of the tentative

§ 302.313 Participants in conferences. decision, shall not exceed 25 pages and The persons entitled to be present in shall comply with the specifications of mail rate conferences will be the repre$302.31(c), unless the Board directs sentatives of the carrier whose rates are otherwise in the tentative decision. If in issue, the staff of the Postmaster no such documents are filed within the General, and the Board's staff. No other prescribed time, the tentative decision person will attend unless the Board's shall, without further proceedings, be staff deems his presence necessary in the come the final decision of the Board. If interest of one or more purposes to be such documents are duly filed, no further accomplished, and in such case his parpleadings will be permitted and the ticipation will be limited to such specific proceeding shall stand submitted to the purposes. No person, however, shall Board for final decision. The Board will have the duty to attend merely by reanot entertain petitions for reconsidera son of invitation by the Board's staff.


$ 302.314 Conditions upon participa shall be presumed to have come into postion.

session of information obtained at the (a) Nondisclosure of information. As

conference knowing that such informacondition to participation, every

tion was subject to the restrictions imparticipant, during the period of the

posed above; but such presumption can conference and for 90 days after its

be rebutted. termination, or until the Board takes

(d) Compliance report required. public action with respect to the facts

Within ten (10) days after the expiraand issues covered in the conference,

tion of the time specified for keeping whichever is earlier: (1) Shall, except

conference matters confidential every for necessary disclosures in the course

participant, as defined in this section, of employment in connection with con

shall file a verified compliance report ference business, hold the information

with the Secretary of the Board stating obtained in conference in absolute con

that he has complied in every respect fidence and trust; (2) shall not deal,

with the conditions of this section, or if directly or indirectly, for the account of

he has not so complied, stating in detail himself, his immediate family, members

in what respects he has failed to comply, of his firm or company, or as a trustee,

(e) Persons subject to the provisions in securities of the carrier involved in

of this section. For the purposes of this the rate conference except that under

section, participants shall include (1) exceptional circumstances special per

any representative of any carrier and mission may be obtained in advance

any representative of the Postmaster from the Board; and (3) shall adopt ef

General actually present at the conferfective controls for the confidential

ence; (2) the carrier and the officers of handling of such information and shall

any carrier which has had a representainstruct personnel under his supervision,

tive at the conference; (3) the directors who by reason of their employment come

of any carrier, which has had a repreinto possession of information obtained

sentative at the conference, the members at the conference, that such information

of any firm of attorneys or consultants, is confidential and must not be disclosed

which has had a representative at the to anyone except to the extent absolutely

conference, and the members of the necessary in the course of employment,

Postmaster General's staff, who come and must not be misused. The word

into possession of information obtained "information", as used in paragraph (b)

at the conference, knowing that such inof this section, shall refer only to infor

formation is subject to the restrictions mation obtained at the conference re

imposed in this section." garding the future course of action or $ 302.315 Information to be requested position of the Board or the Board's

from carrier. staff with respect to the facts or issues discussed at the conference.

With respect to the rate for the future (b) Signed statement required. Every

period, the carrier will be requested to representative of a carrier actually pres

submit detailed estimates as to traffic, ent at any conference shall sign a state

revenues and expenses by appropriate ment that he has read this entire

periods and the investment which will instruction and promises to abide by it

be required to perform the operations and advise any other participant to

for a full future year. Full and adewhom he discloses any confidential in

quate support shall be presented for all formation of the restrictions imposed

estimates, particularly where such estiabove. Every representative of the Post

mates deviate materially from the car. master General actually present at any

rier's past experience. With respect to conference shall, on his own behalf, sign the rate for a past period, essentially the a statement to the same effect.

same procedure shall be followed. Other (c) Presumption of having conference information or data likewise may be reinformation. A director of any carrier,

quested by the Board's staff. All data which has had a representative at the submitted by the carrier shall be certified conference, who deals either directly or

by a responsible officer. indirectly for himself, his immediate family, members of his firm or company,

2 Restrictions on disclosure of confidential or as a trustee, in securities of the air

information and dealing in air carrier secarrier involved in the conference, dur

curities are imposed upon the Board's staff ing the restricted period set forth above, pursuant to applicable law.

« AnteriorContinuar »