USCODE-1999-title14-vol4-part385

SUBCHAPTER E—ORGANIZATION
PART 385—STAFF ASSIGNMENTS
AND REVIEW OF ACTION UNDER
ASSIGNMENTS
Subpart A—General Provisions
Sec.
385.1 Definitions.
385.2 Applicability.
385.3 Scope of staff action.
385.4 Form of staff action.
385.5 Procedures prescribed in other regulations.
385.6 Referral to the Reviewing Official.
385.7 Exercise of authority by superiors.
385.8 Exercise of authority in ‘‘acting’’ capacity.

Subpart B—Assignment of Functions to Staff
Members
385.10 Authority of Chief Administrative
Law Judge, Office of Hearings.
385.11 Authority of the Administrative Law
Judges, Office of Hearings.
385.12 Authority of the Director, Office of
Aviation Analysis.
385.13 Authority of the Director, Office of
International Aviation.
385.14 Authority of the General Counsel.
385.15 Authority of the Deputy General
Counsel.
385.16 Heads of Offices and Assistant General Counsels.
385.17 Authority of the Assistant General
Counsel for Regulation and Enforcement.
385.18 Authority of the Chief, Coordination
Section, Documentary Services Division.
385.19 Authority of the Director, Office of
Aviation Information, Bureau of Transportation Statistics.
385.20 Authority of the Inspector General.
385.21 Authority of the Chief, Accounting
Division, Office of Budget and Policy,
Federal Transit Administration.

Subpart C—Procedure on Review of Staff
Action
385.30
385.31
385.32
385.33
385.34

Persons who may petition for review.
Petitions for review.
Effective date of staff action.
Review by the staff.
Decision by the Reviewing Official.

AUTHORITY: 49 U.S.C. Subtitle I, Chapters
401, 411, 413, 415, 417.
SOURCE: Docket No. T–1, 49 FR 50985, Dec.
31, 1984, unless otherwise noted.

Subpart A—General Provisions
§ 385.1

Definitions.

Department means Department of
Transportation.
Petition for review means a petition
asking the appropriate Reviewing Official to exercise his or her discretionary
right of review of staff action.
Precedent means applicable judicial
decisions and decisions by the Department, or by the Board where consistent
with Department policy.
Reviewing Official means the Assistant Secretary for Aviation and International Affairs, the General Counsel,
or the Director of the Bureau of Transportation Statistics, as appropriate to
the subject matter under review, but
not with regard to Deputy General
Counsel and Administrative Law Judge
decisions made under this part.
Staff action means the exercise of a
function under Subparts I, II and IV of
Subtitle VII of Title 49 of the United
States Code (Transportation) by a staff
member pursuant to assignment under
this part.
Staff members means officers and employees of the Department who are assigned authority under this part.
Statute means Subtitle VII of Title 49
of the United States Code (Transportation).
[Docket No. T–1, 49 FR 50985, Dec. 31, 1984, as
amended by Amdt. 1–261, 59 FR 10061, Mar. 3,
1994; 60 FR 66726, Dec. 26, 1995; Doc. No. OST96-1268, 61 FR 19167, May 1, 1996]

§ 385.2

Applicability.

This part describes the organization
of the Department insofar as, pursuant
to authority conferred on it by section
40113 of the Statute, the Department
has adopted rules herein or elsewhere
which make continuing assignments of
authority with respect to any of its
functions of making orders or other determinations, many of which are not
required to be made on an evidentiary
record upon notice and hearing or
which are not the subject of contest,
and Department personnel have been
assigned to perform such functions.

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§ 385.5

Delegations by the Secretary of Transportation to Secretarial Officers and
the Director, Bureau of Transportation
Statistics (BTS) of functions under
Subparts I, II, and IV of the Statute appear in 49 CFR part 1. This part also
sets forth the procedures governing discretionary review by the appropriate
Reviewing Official of action taken
under such assignments. Nothing in
this part shall be construed as precluding the Department from issuing,
by appropriate order, temporary delegations of authority with respect to
any functions described in this part or
with respect to any other functions
which can be lawfully delegated.
[Docket No. T–1, 49 FR 50985, Dec. 31, 1984, as
amended at 60 FR 66726, Dec. 26, 1995; Doc.
No. OST-96-1268, 61 FR 19167, May 1, 1996]

§ 385.3 Scope of staff action.
Applications for relief which, pursuant to this part, may be granted by
staff members under assigned authority, and proceedings on such requests
shall be governed by applicable rules in
the same manner as if no assignment
had been made (see § 385.5). In such proceedings, each staff member may determine any procedural matters which
may arise, including, inter alia, service
of documents on additional persons; filing of otherwise unauthorized documents; waivers of procedural requirements; requests for hearing; requests
for additional information; dismissal of
applications upon the applicant’s request, moot applications, or incomplete or otherwise defective applications; and extensions of time. Such determinations, except those which
would terminate the matter, shall be
subject to review only in connection
with review of the staff member’s decision on the merits. The dismissal of incomplete or otherwise defective applications under authority set forth in
this part shall be without prejudice except where under otherwise applicable
law the time for making application
has run out or where the defect is not
corrected within a reasonable time
fixed by the staff member. Under the
authority assigned to the staff as set
forth in this part to approve, disapprove, grant, or deny, relief may be
granted or denied in part and grants
may be made subject to lawful and rea-

sonable conditions. Moreover, where
applicable, the authority to grant relief also includes authority to renew or
extend an existing authorization.
[Doc. T–1, 49 FR 50985, Dec. 31, 1984; Amdt. 1,
50 FR 7170, Feb. 21, 1985]

§ 385.4

Form of staff action.

Unless otherwise specified, staff action shall be by order or informal writing
(letters,
telegrams,
decision
marked on copy of application form,
etc.). Such orders or informal writings
shall contain a recital that action is
taken pursuant to authority assigned
herein, shall, in cases where there are
‘‘parties or interveners,’’ or where
there may be an adverse effect upon a
person with a substantial interest, contain a brief reference to the right of aggrieved parties to petition the Reviewing Official for review pursuant to applicable procedural rules, including a
statement of the time within which petitions must be filed (§ 385.51); shall
state whether the filing of a petition
shall preclude the action from becoming effective; and shall be in the name
of the person exercising the assigned
function. They shall contain all findings, determinations and conclusions
which would be required or appropriate
if they were issued by the Secretary.
Upon request, the appropriate Department Official shall attest as Departmental action orders or informal
writings issued pursuant to this part
which have become the action of the
Department (§ 385.52).
[Doc. T–1, 49 FR 50985, Dec. 31, 1984; Amdt. 1,
50 FR 7170, Feb. 21, 1985]

§ 385.5 Procedures prescribed in other
regulations.
Procedures set forth in this part do
not supersede procedures applicable to
matters on which decision has been assigned unless otherwise specifically
provided herein: Provided, however,
That any provisions in other regulations which provide for reconsideration
of nonhearing determinations are not
applicable to decisions made under authority assigned herein or to decisions
made upon review thereof by the Reviewing Official.

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14 CFR Ch. II (1–1–99 Edition)

§ 385.6 Referral to the Reviewing Official.
When the staff member finds that the
public interest so requires, or that,
with respect to other than matters requiring immediate action as hereafter
specified, there will be insufficient
time for discretionary review of his or
her decision upon petition, the staff
member shall, in lieu of exercising the
authority, submit the matter to the
Reviewing Official for decision. In any
case in which the staff member finds
that immediate action is required with
respect to any matter assigned herein,
the disposition of which is governed by
prior precedent and policy, the staff
member may take appropriate action
and specify that the filing of a petition
for review shall not preclude such action from becoming effective.
§ 385.7 Exercise of authority by superiors.
Any assignment of authority to a
staff member other than the Chief Administrative Law Judge, the Administrative Law Judge, and the Deputy
General Counsel, shall also be deemed
to be made, severally, to each such
staff member’s respective superiors. In
accordance with the Department’s
principle of management responsibility, the superior may choose to exercise the assigned power personally.
Moreover, the Secretary may at any
time exercise any authority assigned
herein.
§ 385.8 Exercise of authority in ‘‘acting’’ capacity.
Unless the assignment provides otherwise, staff members serving in an
‘‘acting’’ capacity may exercise the authority assigned to the staff members
for whom they are acting.

Subpart B—Assignment of
Functions to Staff Members
§ 385.10 Authority of Chief Administrative Law Judge, Office of Hearings.
The Chief Administrative Law Judge
has authority to:
(a) Consolidate, upon recommendation of the Director, Office of International Aviation (or such staff member of the Office of International Aviation as he or she may designate), into

one proceeding cases involving the investigation of a tariff or of complaints
concerned with related tariffs.
(b) With respect to matters to be decided after notice and hearing: (1) Dismiss applications or complaints (except those falling under subpart B of
part 302 of this chapter (Procedural
Regulations)) when such dismissal is
requested or consented to by the applicant or complainant, or where such
party has failed to prosecute such application or complaint; (2) dismiss proceedings upon his or her finding that
the proceeding has become moot or
that no further basis for continuation
exists; and (3) dismiss an application
subject to dismissal as stale under part
302 of this chapter.
[49 FR 50985, Dec. 31, 1984, as amended at 55
FR 20448, May 17, 1990]

§ 385.11 Authority of the Administrative Law Judges, Office of Hearings.
The Administrative Law Judges, Office of Hearings, have authority to
take the following actions in matters
to which they are respectively assigned:
(a) Grant or deny intervention in formal proceedings.
(b) With respect to matters to be decided after notice and hearing, dismiss
applications or complaints (except
those falling under subpart B of part
302 of this chapter (Procedural Regulations)) when such dismissal is requested or consented to by the applicant or complainant, or where such
party has failed to prosecute such application or complaint.
(c) Grant requests for consolidation
of applications for route authority
within the scope of the proceeding before him or her, and deny requests for
consolidation of applications for route
authority not within the scope of the
proceeding.
(d) Approve or disapprove proposed
settlements
of
enforcement
proceedings submitted under § 302.215 of
this chapter.
§ 385.12 Authority of the Director, Office of Aviation Analysis.
The Director, Office
Analysis, has authority:

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Aviation

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§ 385.12

(a) With respect to applications filed
under section 41102 to engage in interstate or foreign scheduled or charter
air transportation, section 41103 to engage in all-cargo air transportation, or
section 41738 to engage in certain commuter air transportation:
(1) To issue an order stating the Department’s intention to process the application through show-cause procedures or other expedited procedures,
where that course of action is clear
under current policy and precedent.
(2) To issue an order to show cause
proposing to grant such application in
those cases where no objections to the
application have been filed, and where
the Department has already found the
applicant to be fit, willing and able to
provide service of the same basic scope
and character.
(3) To issue an order, subject to any
Presidential review required under section 41307 of the Statute, making final
an order to show cause issued under
paragraph (a)(2) of this section, where
no objections to the order to show
cause have been filed.
(4) To issue an order dismissing an
application:
(i) When dismissal is requested or
consented to by the applicant;
(ii) For lack of prosecution; or
(iii) When the application has become
moot.
(5) To review Air Carrier Certificates
and Operations Specifications issued by
the Federal Aviation Administration
to carriers that have been granted certificate or commuter air carrier authority, and information concerning
those carriers’ fitness to operate under
that authority that emerged following
the issuance of orders establishing
their fitness, and—
(i) To amend orders issuing the certificate or commuter air carrier authority to advance the effective dates
of the authority if the review is satisfactory;
(ii) To stay the effectiveness of such
orders for up to 30 days if the review is
unsatisfactory;
(iii) To lift the stay of effectiveness
imposed under paragraph (a)(5)(ii) of
this section when the unsatisfactory
conditions that required issuance of
the stay have been resolved; or

(iv) To issue notices announcing the
effective date of the certificate or commuter air carrier authority.
(b) To approve or deny applications
of air carriers:
(1) For exemptions from section 41102
or 41103 of the Statute, and from orders
issued thereunder, and from applicable
regulations under this chapter where
the course of action is clear under current policy or precedent.
(2) For waivers of the Department’s
filing fee requirements under part 389
of this chapter, in accordance with current policy or precedent.
(3) For relief under section 40109 of
the Statute to hold out, arrange, and
coordinate the operation of air ambulance flights as indirect air carriers in
accordance with established precedent.
(c) To waive the deadlines in
§ 377.10(c) of this chapter for filing applications for the renewal of temporary
authorizations when, in the Director’s
judgment, the public interest would be
served. The provisions of § 377.10(d) of
this chapter shall apply in the same
manner as to a timely filed application.
(d) With respect to air carrier names:
(1) To register names and trade
names of certificated and commuter
air carriers pursuant to part 215 of this
chapter.
(2) To reissue certificates issued
under sections 41102 or 41103 of the
Statute when revisions thereof are necessitated by a change in the name of
a carrier, provided that no issue of substance concerning the operating authority of the carrier is involved.
(e) To approve, deny, or cancel registrations filed with the Department by
air taxi operators and commuter air
carriers pursuant to part 298 of this
chapter.
(f) With respect to Canadian charter
air taxi operations:
(1) To approve applications for registration, or require that a registrant
submit additional information, or reject an application for registration for
failure to comply with part 294 of this
chapter.
(2) To cancel, revoke, or suspend the
registration of any Canadian charter
air taxi operator using small aircraft
registered under part 294 of this chapter that:

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(i) Filed with the Department a written notice that it is discontinuing operations;
(ii) No longer is designated by its
home government to operate the services contemplated by its registration;
(iii) Holds a foreign air carrier permit under section 41302 to operate large
aircraft charters between the United
States and Canada;
(iv) Fails to keep its filed certificate
of insurance current;
(v) No longer is substantially owned
or effectively controlled by persons
who are:
(A) Citizens of Canada;
(B) The Government of Canada; or
(C) A combination of both; or
(vi) No longer holds current effective
Operations Specifications issued by the
FAA.
(3) To grant or deny requests for a
waiver of part 294 of this chapter,
where grant or denial of the request is
in accordance with current policy or
precedent.
(g) To approve certificates of insurance filed with the Department on behalf of U.S. and foreign air carriers in
accordance with the provisions of part
205 of this chapter.
(h) With respect to foreign air freight
forwarders:
(1) To approve applications for registration, or require that a registrant
submit additional information, or reject an application for registration for
failure to comply with part 297 of this
chapter.
(2) To cancel the registration of any
foreign air freight forwarder or foreign
cooperative shippers association that
files a written notice with the Department indicating the discontinuance of
common carrier activities.
(3) To exempt the registrant from the
requirement contained in § 297.20 of this
chapter that substantial ownership and
effective control reside in citizens of
the country that the applicant claims
as its country of citizenship, where the
course of action is clear under current
precedent or policies.
(i) With respect to charter operations:
(1) To grant or deny requests for
waiver of parts 207, 208, 212, 372, and 380
of this chapter, where grant or denial

of the request is in accordance with established precedent.
(2) To approve or disapprove direct
air carrier escrow agreements filed
pursuant to parts 207, 208, and 212 of
this chapter.
(3) To reject or accept Public Charter
prospectuses filed under part 380 of this
chapter.
(4) With respect to the procedures for
the registration of foreign charter operators under subpart F of part 380 of
this chapter:
(i) To approve applications for registration, or require that a registrant
submit additional information, or reject an application for registration for
failure to comply with part 380 of this
chapter.
(ii) To notify the applicant that its
application will require further analysis or procedures, or is being referred
to the Assistant Secretary for Aviation
and International Affairs for formal action.
(iii) To cancel the registration of a
foreign charter operator if it files a
written notice with the Department
that it is discontinuing its charter operations.
(iv) To waive provisions of subpart F
of part 380 of this chapter.
(j) With respect to mail rates:
(1) To issue show-cause orders proposing to make modifications of a
technical nature in the mail rate formula applicable to temporary or final
service mail rate orders.
(2) To issue final orders establishing
temporary and final service mail rates:
(i) In those cases where no objection
has been filed following release of the
show-cause order, and where the rates
established are the same as those proposed in the show-cause order; and
(ii) In those cases where it is necessary to make modifications of a technical nature in the rates proposed in
the show-cause order.
(3) To issue final orders amending
mail rate orders of air carriers to reflect changes in the names of the carriers subject to the orders.
(4) To issue a letter, in the case of air
mail contracts filed with the Department under part 302 of this chapter
against which no complaints have been
filed, stating that the contract will not

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§ 385.13

be disapproved by the Department and
may become effective immediately.
(k) With respect to essential air service proceedings:
(1) To establish procedural dates.
(2) To issue orders setting interim
rates of compensation for carriers required to provide essential air service.
(3) To issue orders approving a carrier’s alternate service pattern if:
(i) The resulting level of service at
the eligible place would be equal to or
greater than the level of service earlier
determined to be essential for that
place;
(ii) The community concerned does
not object to the carrier’s implementation of the alternate service pattern;
and
(iii) The carrier is not receiving a
subsidy for the service or implementation of the alternate service pattern
would not increase the carrier’s subsidy.
(4) To issue orders adjusting the operational and/or financial unit rates of
the payout formula for a carrier receiving subsidy under section 41732 of the
Statute where the adjustment will not
increase the total amount of compensation that the carrier will receive.
(5) To renew, up to five times in succession, an order under section 41734 of
the Statute to an air carrier to continue providing essential air service
while the Department attempts to find
a replacement carrier.
(6) To request service and subsidy
proposals from carriers interested in
providing essential air service to an eligible place that is not receiving essential air service and for which no appeal
of its essential air service determination is pending.
(7) To request service and subsidy
proposals from carriers interested in
providing essential air service when no
proposals were filed in response to a
previous request for proposals.
(8) To issue final orders establishing
interim or final subsidy rates under
section 41732 or final adjustments of
compensation for continued service
under section 41732 in those cases
where no objection has been filed to a
show-cause order, and where the rates
established are the same as or less than
those proposed in the approved showcause order.

(9) With respect to provisions for terminations, suspensions, or reductions
of service under part 323 of this chapter:
(i) To require any person who files a
notice, objection, or answer to supply
additional information.
(ii) To require service of a notice, objection, or answer upon any person.
(iii) To accept late-filed objections or
answers, upon motion, for good cause
shown.
(iv) To extend the time for filing objections for answers, when the initial
notice has been filed earlier than required under § 323.5.
[Doc. No. OST-96-1268, 61 FR 19167, May 1,
1996]

§ 385.13 Authority of the Director, Office of International Aviation.
The Director, Office of International
Aviation, has authority to:
(a) Approve or deny applications for
exemptions, where the course of action
is clear under current policy or precedent:
(1) For air carriers, from chapter 411
of the Statute and from certificates
and orders issued under that chapter;
(2) For foreign air carriers, from section 41301 and from permits and related
orders issued under chapter 413;
(3) For air carriers and foreign air
carriers, from chapter 415 and from orders issued and tariffs filed under that
chapter; and
(4) From orders and applicable regulations under this chapter.
(b) With respect to applications for
certificates of public convenience and
necessity under section 41102 and foreign air carrier permits under section
41302:
(1) Issue an order to show cause proposing to grant such application in
those cases where no objections to the
application have been filed, and the applicant has already been found fit, willing, and able by the Department to
provide service of the same basic scope
and character;
(2) Issue an order stating the Department’s intention to process the application through show-cause procedures;
(3) Issue an order, subject to Presidential review under section 41307, to
make final an order to show cause

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14 CFR Ch. II (1–1–99 Edition)

issued under the circumstances of paragraph (b)(1) of this section, where no
objections to the show-cause order
have been filed; and
(4) Reissue certificates of public convenience and necessity and foreign air
carrier permits when revisions are necessitated by a change in the name of
the carrier or of points specified, provided that no issue of substance concerning the operating authority of a
carrier is involved.
(c) With respect to an application
under section 41102 for a certificate to
engage in foreign scheduled air transportation, issue an order instituting an
investigation of the applicant’s fitness
and other issues related to the application, where no person has already filed
an objection to the application and the
investigation will be conducted by oral
hearing procedures.
(d) Issue an order to show cause why
a foreign air carrier permit should not
be revoked under section 41304 when:
(1) The government of the permit
holder’s home country represents that
it does not object to revocation of the
permit; and
(2) The permit holder—
(i) Has ceased operations; or
(ii) No longer holds valid authority
from its own government to operate
the services in its permit.
(e) Approve or disapprove requests by
foreign air carriers for authorizations
provided for, or waivers of restrictions
contained, in any agreement or in any
permit or order of the Department,
when no person disclosing a substantial
interest objects or where the course of
action is clear under current policy or
precedent.
(f) Waive the deadlines in § 377.10(c) of
this chapter for filing applications for
renewal of unexpired temporary authorizations when, in the Director’s
judgment, the public interest would be
served. The provisions of § 377.10(d) of
this chapter shall apply in the same
manner as to a timely filed application.
(g) Extend the time allowed for action on a complaint of unfair or discriminatory practices, filed under section 41310, for an additional period or
periods of 30 days each, not to exceed
the 180th day after filing unless that

deadline has been waived by the complainant.
(h) Grant or deny applications for
statements of authorization under
parts 207, 208, and 212 of this chapter,
and requests for waivers of the requirements of parts 207, 208, and 212 of this
chapter, where grant or denial of the
request is in accordance with current
policy or precedent.
(i) Approve or disapprove charter
trips by foreign air carriers, and those
by air carriers that are predominantly
in foreign air transportation, when
prior authorization is required by:
(1) Any provision of this chapter; or
(2) An order of the Department.
(j) Approve or disapprove requests by
foreign air carriers for waivers of the
30-day advance filing requirement for
proposed schedules whose filing the Department has ordered under part 213 of
this chapter.
(k) Approve, when no person disclosing a substantial interest objects,
or disapprove requests by foreign air
carriers for special authorizations provided for in part 216 of this chapter.
(l) With respect to applications for
statements of authorization to conduct
intermodal cargo services under part
222 of this chapter:
(1) Approve applications under part
222 of this chapter where no person
with a substantial interest raises objections citing specific facts of nonreciprocity or of restraints on competition
by U.S. air carriers;
(2) Reject applications under part 222
of this chapter where there is no agreement by the United States permitting
the proposed services; or
(3) Require that an applicant under
part 222 of this chapter submit additional information.
(m) Approve or disapprove issuance
of foreign aircraft permits provided for
in part 375, subparts E and H, of this
chapter.
(n) Grant or deny applications of foreign air carriers for renewal of emergency exemptions granted under 49
U.S.C. 40109(g).
(o) Grant or deny applications by air
carriers and foreign air carriers under
part 389 of this chapter for waivers of
the Department’s filing fee requirements, in accordance with current policy or precedent.

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(p) Determine matters in proceedings
under section 40109 and chapters 411,
413 and 415, that have not been set for
oral evidentiary hearing, in addition to
those authorized under § 385.3, such
matters to include, inter alia, filing
times, service of documents, submissions of additional information, filing
of otherwise unauthorized documents,
access to information for which confidential treatment has been requested,
rejection of incomplete or otherwise
defective applications, and solicitation
of applications for authority.
(q) Approve or disapprove applications under part 223 of this chapter for
permission to furnish free or reducedrate foreign air transportation.
(r) With respect to International Air
Transport Association (IATA) agreements filed with the Department pursuant to sections 41309 and 41308 of the
Statute, or pursuant to Civil Aeronautics Board Order E–9305 of June 15,
1955:
(1) Issue orders approving or disapproving IATA agreements relating to
fare and rate matters under section
41309, and granting or denying antitrust immunity under section 41308,
where the course of action is clear
under current policy and precedent.
(2) Issue orders describing filed agreements, establishing procedural dates
for submission of justification, comments and replies, which support or oppose agreements, and prescribing the
particular types of data to be included
in such submission.
(s) Reject any tariff, supplement, or
revised page that is filed by any U.S.
air carrier or foreign air carrier, and
that is subject to rejection because it
is not consistent with chapter 415 of
the Statute or with part 221 or 222 of
this chapter. Where a tariff, supplement or loose-leaf page is filed on more
than 60 days’ notice and is not rejected
within the first 30 days (including the
filing date), it shall not be rejected
after such 30-day period under this authority unless the issuing carrier is
given an opportunity to remove the
cause for rejection by the effective
date, by special tariff permission if
necessary, and fails to take such corrective action.
(t) Approve or disapprove any application for special tariff permission

under part 221, subpart P, of this chapter to make tariff changes upon less
than statutory notice.
(u) Approve or disapprove applications for waiver of part 221 of this
chapter.
(v) Institute an investigation of, or
institute an investigation and suspend
the effectiveness of, a tariff or change
in a tariff which:
(1) Is substantially similar to a prior
tariff under investigation or suspension; and
(2) Is filed by or on behalf of one or
more of the parties to the prior tariff;
and
(3) Is filed within 90 days after the expiration, modification, or cancellation
of the prior tariff, or within 90 days
after the effective date of an order requiring its cancellation or modification.
(w) In instances when an investigation of a tariff is pending, or the tariff
is under suspension, or when a complaint requesting investigation or suspension of a tariff has been filed:
(1) Permit cancellation of the tariff;
or
(2) If the grounds for the investigation or complaint have been removed
through cancellation, expiration or
modification of the tariff, either dismiss the investigation or complaint, or
terminate the suspension.
(x) Extend the period of suspension of
a tariff when the proceedings concerning the lawfulness of such tariff
cannot be concluded before the expiration of the existing suspension period,
provided that the aggregate of such extensions may not be for a longer period
than permitted under section 41509.
(y) Cancel the suspension of and/or
dismiss an investigation of a tariff relating to service predominantly in foreign air transportation where the
course of action is clear under current
policy and precedent.
[Doc. No. OST-96-1268, 61 FR 19169, May 1,
1996]

§ 385.14 Authority
Counsel.

of

the

General

(a) The General Counsel has authority to:
(1) Issue proposed or final regulations
for the purpose of making editorial

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changes or corrections in the Department’s rules and regulations to carry
out Titles IV and X of the Act, with the
concurrence of the staff offices primarily responsible for the parts or sections involved: Provided, That any final
regulation so issued shall have an effective date not less than 20 days after
its date of publication in the FEDERAL
REGISTER, and shall include a brief reference to the review procedures established in subpart C of this part.
(2) Where a petition for review is duly
filed, reverse any rulemaking action
taken by him or her pursuant to paragraph (a) of this section by withdrawing a proposed or final regulation
issued thereunder, in which case the
petition for review will not be submitted to the Reviewing Official involved. (Such a withdrawal is not subject to the review procedures of subpart C of this part.)
(3) Issue, upon request therefor, interpretations of facts bearing upon disqualifications of former members and
employees, and Department employees
under § 300.13 or § 300.14 of this chapter
(Procedural Regulations).
(4) Issue orders deferring action until
after oral argument on motions submitted by parties subsequent to the
issuance of an Administrative Law
Judge’s initial or recommended decision.
(5) Reissue existing regulations for
the purpose of incorporating prior
amendments adopted by the Department.
(b) To the extent that a hearing case
is involved, the authority assigned to
the General Counsel in paragraph (a) of
this section shall not be reassigned to
the Deputy General Counsel or exercised by the Deputy General Counsel in
the capacity of Acting General Counsel.
[Doc. T–1, 49 FR 50985, Dec. 31, 1984; Amdt. 1,
50 FR 7170, Feb. 21, 1985. Redesignated by
Doc. No. OST-96-1268, 61 FR 19170, May 1,
1996]

§ 385.15 Authority of the Deputy General Counsel.
The Deputy General Counsel has authority to:
(a) Compromise any civil penalties
being imposed in enforcement cases.

(b) Issue orders initiating and terminating informal nonpublic investigations under part 305 of this chapter
(Procedural Regulations).
(c) Issue orders requiring air carriers
to prepare and submit within a specified reasonable period, special reports,
copies of agreements, records, accounts, papers, documents, and specific
answers to questions upon which information is deemed necessary. Special
reports shall be under oath whenever
the Deputy General Counsel so requires.
(d) Institute and prosecute in the
proper court, as agent of the Department, all necessary proceedings for the
enforcement of the provisions of the
act or any rule, regulation, requirement, or order thereunder, or any
term, condition, or limitation of any
certificate or permit, and for the punishment of all violations thereof. Any
action taken by the Deputy General
Counsel, pursuant to the authority of
this section shall not be subject to the
review procedures of this part.
(e) Make findings regarding the reasonable necessity for the application of
the Department’s authority to obtain
access to lands, buildings and equipment, and to inspect, examine and
make notes and copies of accounts, records, memorandums, documents, papers and correspondence of persons
having control over, or affiliated with,
any person subject to regulation under
Titles IV or X of the Act, through
issuance of an appropriate order, letter
or other transmittal.
(f) Issue orders denying or granting
conditional or complete confidential
treatment of information supplied by
any person to the Office of Aviation
Enforcement and Proceedings. Confidential treatment may only be granted upon a finding that, if the information were in the Department’s possession and a Freedom of Information Act
(FOIA) request were made for the information:
(1) At the time of the confidentiality
request, the FOIA request would be denied on the basis of one or more of the
FOIA exemptions; and
(2) At any later time, the FOIA request would also be denied, absent a
material change in circumstances
(which may include a demonstration

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Office of the Secretary, DOT

§ 385.19

that the asserted exemption does not
apply).

periods following the issuance of final
rules.

[Docket No. T–1, 49 FR 50985, Dec. 31, 1984.
Redesignated by Doc. No. OST-96-1268, 61 FR
19170, May 1, 1996]

[Docket No. T–1, 49 FR 50985, Dec. 31, 1984.
Redesignated by Doc. No. OST-96-1268, 61 FR
19170, May 1, 1996]

§ 385.16 Heads of Offices and Assistant
General Counsels.
The heads of Offices and Assistant
General Counsels have the authority
to:
(a) Grant requests for permission to
withdraw petitions, applications, motions, complaints, or other pleadings or
documents which the respective Office
has responsibility for processing where
such authority has not otherwise been
assigned in this regulation.
(b) Grant extensions of time for filing
of documents or reports which are required to be filed by regulation or Department order and which reports or
documents the respective Office has
the responsibility for processing.
(c) Grant waivers of the environmental procedures set by Department
order in any proceeding or portion of a
proceeding dealing with environmental
matters.
(d) Establish procedures on a case-bycase basis for environmental proceedings to ensure compliance with applicable law.

§ 385.18 Authority of the Chief, Coordination Section, Documentary Services Division.

[Docket No. T–1, 49 FR 50985, Dec. 31, 1984.
Redesignated by Doc. No. OST-96-1268, 61 FR
19170, May 1, 1996]

§ 385.17 Authority of the Assistant
General Counsel for Regulation and
Enforcement.
The Assistant General Counsel for
Regulation and Enforcement has authority to:
(a) Call public meetings in pending
rulemaking proceedings,
(b) Issue a notice suspending the effective dates of final regulations issued
by the General Counsel pending Departmental determination of review
proceedings instituted thereon, whether by petition or upon order of the Department. (Such a notice is not subject
to the review procedures of subpart C
of this part.), and
(c) Approve or disapprove, for good
cause shown, requests to extend the
time for filing comments on all proposed or final new or amended regulations, and requests to extend comment

The Chief, Coordination Section,
Documentary Services Division, has
the authority to coordinate and perform all administrative functions of
the Department provided for in sections 2, 3 and 5 of Executive Order 12597
issued May 13, 1987, except that this
delegation shall not include the exercise of the authority delegated by the
President to the Secretary by sections
2 and 5 of that Order to determine not
to disapprove orders of the Department
in certain cases.
[Amdt. 385–3, 52 FR 18905, May 20, 1987. Redesignated by Doc. No. OST-96-1268, 61 FR
19170, May 1, 1996]

§ 385.19 Authority of the Director, Office of Aviation Information, Bureau of Transportation Statistics.
The Director, Office of Aviation Information, Bureau of Transportation
Statistics (BTS) has authority to:
(a) Conduct all rulemaking proceedings concerning accounting, reporting, and record retention requirements for carrying out Subparts I, II,
and IV of the Statute, except the
issuance of final rules and the disposition of petitions for reconsideration.
(b) Interpret the accounting, reporting, and record retention requirements
used to carry out Subparts I, II, and IV
of the Statute.
(c) Waive any of the accounting, reporting, and record retention requirements upon a showing of the existence
of such facts, circumstances or other
grounds, and subject to such limitations or conditions as may be prescribed for waivers in the applicable
regulations, unless such authority is
otherwise specifically assigned.
(d) Dismiss petitions for Department
or BTS action with respect to accounting, reporting, and record retention
matters when such dismissal is requested or consented to by the petitioner.

497

§ 385.20

14 CFR Ch. II (1–1–99 Edition)

(e) Require special reports, documentation, or modifications to reports
required by this chapter from any air
carrier upon a determination that such
reports or documentation or modifications are necessary to meet temporary
information needs, assist in an evaluation of continued financial fitness, or
comply with special information requests by Congress, Department officials, or another agency or component
of the Federal Government.
(f) Grant or deny requests by air carriers for extension of filing dates for reports required by subchapters A and D
of this chapter.
(g) Grant or deny requests by air carriers for substitution of their own
forms,
adaptation
of
Department
forms, or use of ADP media to meet
special needs where Department approval of such forms or ADP media is
required by subchapter A of this chapter.
(h) Determine the data necessary to
complete the International Civil Aviation Organization reports required by
U.S. Treaty; as provided in Order 81–3–
120, establish any necessary supplemental reporting requirements; and
dispose of petitions for extensions of
filing dates or waivers with respect to
the data required for such reports.
(i) Grant or deny motions filed under
§ 302.39 of this chapter requesting confidential treatment of aviation economic information or reports filed with
BTS and place the decision in the motion’s docket, which decision will be
subject to review through a petition for
reconsideration filed within ten days of
issuance, to be acted upon by the Director, BTS.
(j) Grant or deny requests filed under
§ 241.22 of this chapter for confidential
treatment of preliminary year-end financial reports.
(k) Grant or deny requests filed
under § 248.5 of this chapter for confidential treatment of individual air
carrier special reports.
(l) Grant or deny requests for use of
domestic and international service segment and market data in accordance
with the limitations on the availability
of these data contained in § 241.19–6 of
this chapter and Order 81–12–9.
(m) Grant or deny requests for use of
international Origin and Destination

Survey statistics in accordance with
the limitations on the availability of
these data contained in § 241.19–7 of this
chapter.
(n) Grant or deny requests for individual air carrier fuel data in accordance with the limitations on the availability of these data contained in paragraph (k) of the reporting instructions
for Schedule P–12(a), which are contained in § 241.24 of this chapter.
(o) Grant or deny requests for individual air carrier financial data in accordance with the limitation on the
availability of these data contained in
paragraph (d) of the reporting instructions for Schedule F–1, which are contained in § 298.62 of this chapter.
(p) Grant or deny requests for individual air carrier financial data as reported on Schedule P–1(a) in accordance with § 241.22(b)(3) of this chapter.
[53 FR 51751, Dec. 23, 1988, as amended at 60
FR 66726, 66727, Dec. 26, 1995. Redesignated
and amended by Doc. No. OST-96-1268, 61 FR
19170, May 1, 1996]

§ 385.20 Authority
General.

of

the

Inspector

The Inspector General has authority
to:
(a) Require special reports, including
documentation, from any air carrier
regarding audits and other examinations of carrier facilities, operations,
and accounting and statistical records.
(b)(1) For accounting purpose, make
findings regarding the reasonable necessity for the application of the Department authority to obtain access to
lands, buildings, and equipment, and to
inspect, examine, and make notes and
copies of accounts, records, documents,
papers, and correspondence of persons
having control over, or affiliated with,
any person subject to regulation used
to carry out titles IV and X of the Act
through issuance of an appropriate
order, letter, or other transmittal;
(2) Authorize one or more auditors or
special agents to conduct audits, inspections, and examinations and to
make notes and copies in accordance
with such findings.
(c) Release to the carrier that is the
subject of a financial audit the audit
report and other information developed
during the audit.

498

Office of the Secretary, DOT

§ 385.31

(d) Require submission by carriers of
special statements necessary to an explanation of any carrier accounting
practice.
[Docket No. T–1, 49 FR 50985, Dec. 31, 1984.
Redesignated by Doc. No. OST-96-1268, 61 FR
19170, May 1, 1996]

§ 385.21 Authority of the Chief, Accounting Division, Office of Budget
and Policy, Federal Transit Administration.
The Chief, Accounting Division, Office of Budget and Policy, Federal
Transit Administration, has authority
to:
(a) Approve and order the payment of
refunds of filing fees paid under
§ 389.27(b) of this chapter when such refunds have been authorized by either
the Director, Office of Aviation Analysis, or the Director, Office of International Aviation.
(b) Pay from appropriated funds all
properly documented claims consistent
with Treasury, OMB, GAO, and DOT
policies.
(c) Make minor or routine adjustments to payments based on audit reports prepared by the Inspector General, and through routine internal examinations of claims and vouchers.
(d) Design air carrier subsidy claim
forms for small community service
under 49 U.S.C. 41737.
[Doc. T–1, 49 FR 50985, Dec. 31, 1984; Amdt. 1,
50 FR 7170, Feb. 21, 1985. Redesignated and
amended by Doc. No. OST-96-1268, 61 FR
19170, May 1, 1996]

Subpart C—Procedure on Review
of Staff Action
§ 385.30 Persons who may petition for
review.
Petitions for review may be filed by
the applicant; by persons who have
availed themselves of the opportunity,
if any, to participate in the matter at
the staff action level; and by persons
who have not had opportunity to so
participate or show good and sufficient
cause for not having participated: Provided, That such persons, other than
the applicant, disclose a substantial in-

terest which would be adversely affected by the respective staff action.
[Docket No. T–1, 49 FR 50985, Dec. 31, 1984.
Redesignated by Doc. No. OST-96-1268, 61 FR
19171, May 1, 1996]

§ 385.31 Petitions for review.
(a) Time for filing. Petitions for review shall be filed and served within
ten (10) days after the date of the staff
action to which they relate, but a different period may be fixed in such staff
action consistent with effective preservation of the right to petition for discretionary review and the exigencies of
the situation.
(b) Contents. Petitions for review
shall demonstrate that (1) a finding of
material fact is clearly erroneous; (2) a
legal conclusion is contrary to law, Department rules, or precedent; (3) a substantial and important question of policy is involved; (4) a prejudicial procedural error has occurred; or (5) the
staff action is substantially deficient
on its face. The petition shall briefly
and specifically state the alleged
grounds for review and the relief
sought. If persons who participated at
the staff action level set forth any new
facts, arguments, or other new matter,
an explanation must be furnished as to
why said matter was not previously adduced at the staff action level. In the
absence of a valid explanation, the Department may disregard such new matter.
(c) Form and filing. Petitions shall
comply with the form and filing requirements of §§ 302.3 (a), (b), and (c),
and 302.4 of this chapter. (Rules of
practice in Economic Proceedings). Petitions shall not exceed 10 pages in
length. A greater length, however, may
be specified in the staff action taken.
The petitions shall be accompanied by
proof of required service. However, persons who seek review of a civil penalty
proposed by the Assistant General
Counsel for Aviation Enforcement and
Proceedings pursuant to § 385.15(a) may
submit their request therefor by letter
to the Department with a copy to the
Assistant General Counsel for Aviation
Enforcement and Proceedings and need
not comply with the above form and
filing requirements.
(d) Service. A petition filed by a person other than the applicant shall be

499

§ 385.32

14 CFR Ch. II (1–1–99 Edition)

served on the applicant. Petitions shall
also be served on any persons who have
served documents on the petitioner at
the staff action level; and on such
other persons as may be directed by
the Department or the staff member
who took the action to be reviewed.
(e) Answers. The applicant and such
other persons as disclose a substantial
interest which would be adversely affected by the relief sought in the petition may, within ten (10) days after filing the petition, file an answer thereto.
A different period for the filing of answers may be fixed in the staff action.
Such answers shall comply with the
form and filing requirements applicable to petitions and shall be served on
the applicant and any other person who
has theretofore served a document in
the matter on such respondent.
[Docket No. T–1, 49 FR 50985, Dec. 31, 1984.
Redesignated and amended by Doc. No. OST96-1268, 61 FR 19171, May 1, 1996]

§ 385.32 Effective date of staff action.
Unless, within the time provided by
or pursuant to this regulation, a petition for review is filed or the Department gives notice that it will review on
its own motion, staff action shall,
without further proceedings, be effective and become the action of the Department upon the expiration of such
period. A timely petition for review
filed in accordance with the provisions
of this section, or notice given by the
Department of review on its own motion, shall stay the staff action pending
disposition by the Department, unless
the Department determines otherwise
or unless the staff action provides otherwise in accordance with subpart A of
this part. However, in cases where the
Department’s regulations provide that
permissions or approvals are granted,
or that other legal effects result, within a stated period from the filing with
the Department of a prescribed document, unless the Department gives notice to the contrary or takes other action within said period, such notice
given or action taken by a staff member under delegated authority shall toll
the running of such period. A timely
petition for review of staff action
which is not stayed by its filing which
is received after or not acted upon before the effective date of the action

shall be entertained and disposed of on
its merits as a petition for reconsideration.
[Docket No. T–1, 49 FR 50985, Dec. 31, 1984.
Redesignated by Doc. No. OST-96-1268, 61 FR
19171, May 1, 1996]

§ 385.33

Review by the staff.

Where a petition for review is duly
filed, the staff member may, upon consideration of all documents properly
filed, reverse his or her decision. Except in the case of Administrative Law
Judges, action taken by a staff member
other than an office head or Assistant
General Counsel may be reversed by
the respective office head or Assistant
General Counsel who is in the supervisory chain of command with respect
to the staff member who took the initial action. If the initial action is reversed, the petition for review will not
be submitted to the Reviewing Official.
Staff action reversing the initial action shall be subject to petition for Department review as any other staff action.
[Docket No. T–1, 49 FR 50985, Dec. 31, 1984.
Redesignated by Doc. No. OST-96-1268, 61 FR
19171, May 1, 1996]

§ 385.34 Decision by the Reviewing Official.
(a) Decline of right to review. If the Reviewing Official declines the right to
exercise discretionary review, the staff
action stayed by the petition for review shall become effective on the second business day following the date of
service of the order, unless the order
provides otherwise.
(b) Exercise of right to review. The Reviewing Official will exercise his or her
discretionary right of review either
upon petition or on his or her own motion. The Reviewing official may by
order provide for interlocutory relief
pending his or her decision on the merits and may limit the issues on review.
The Reviewing Official may affirm,
modify or set aside the staff action,
may order the matter remanded, or
may order further submittals or other
proceedings before making a decison on
the merits. In case the Reviewing Official affirms the staff action, staff action stayed by the petition for review
shall become effective on the second

500

Office of the Secretary, DOT

§ 389.14

business day following the date of service of the Reviewing Official’s order,
unless the order provides otherwise.
Decisions by the Reviewing Official
under this part are final and are not
subject to petitions for reconsideration.

Board and prescribes the fees to be paid
for these and various other services.

[Doc. T–1, 49 FR 50985, Dec. 31, 1984; Amdt. 1,
50 FR 7170, Feb. 21, 1985. Redesignated by
Doc. No. OST-96-1268, 61 FR 19171, May 1,
1996]

This subpart describes certain special
services made available by the Board
and prescribes the fees and charges for
these services.

PART 389—FEES AND CHARGES
FOR SPECIAL SERVICES

§ 389.10

§ 389.11

Subpart A—General Provisions
Sec.
389.1

Subpart B—Fees for Special
Services

Policy and scope.

Subpart B—Fees for Special Services
389.10 Applicability of subpart.
389.11 Services available.
389.12 Payment of fees and charges.
389.13 Fees for services.
389.14 Locating and copying records and
documents.
389.15 Certification of copies of documents.
389.16 Board publications.
389.17 Transcripts of proceedings.

Subpart C—Filing and Processing License
Fees
389.20 Applicability of subpart.
389.21 Payment of fees.
389.22 Failure to make proper payment.
389.23 Application for waiver or modification of fees.
389.24 Foreign air carriers.
389.25 Schedule of processing fees.
389.26 Special rules for tariff page filings.
389.27 Refund of fee.
AUTHORITY: Sec. 204, 1002, Pub. L. 85–726, as
amended, 72 Stat. 743, 797; 49 U.S.C. 1324, 1502.
Act of August 31, 1951, ch. 376, 65 Stat. 268; 31
U.S.C. 483a.
SOURCE: OR–27, 33 FR 70, Jan. 4, 1968, unless
otherwise noted.

Subpart A—General Provisions
§ 389.1 Policy and scope.
Pursuant to the provisions of Title V
of the Independent Offices Appropriation Act of 1952 (5 U.S.C. 140) as implemented by Bureau of Budget Circular
A–25, dated September 23, 1959, the
Board sets forth in this regulation the
special services made available by the

Applicability of subpart.

Services available.

Upon request and payment of fees as
provided in subsequent sections, there
are available, with respect to documents subject to inspection, services as
follows:
(a) Locating and copying records and
documents.
(b) Certification of copies of documents under seal of the Board.
(c) Subscriptions to publications of
the Board.
(d) Transcripts of hearings.
[OR–27, 33 FR 70, Jan. 4, 1968, as amended by
OR–94, 40 FR 7242, Feb. 19, 1975]

§ 389.12

Payment of fees and charges.

The fees charged for special services
may be paid by check, draft, or postal
money order, payable to the Civil Aeronautics Board, except for charges for
reporting services which are performed
under competitive bid contracts with
non-Government firms. Fees for reporting are payable to the firms providing
the services.
§ 389.13

Fees for services.

Except for photocopy work, the basic
fees set forth below provide for documents to be mailed with ordinary first
class postage prepaid. If copy is to be
transmitted by registered, certified,
air, or special delivery mail, postal fees
therefor will be added to the basic fee.
Also, if special handling or packaging
is required, costs therefor will be added
to the basic fee. For photocopy work,
postage will be in addition to the fee
for copying.
§ 389.14 Locating and copying records
and documents.
Public records and documents on file
with the Civil Aeronautics Board will

501